Complicity

[2-700] Introduction

Last reviewed: September 2023

A person may be criminally liable in various ways for a crime physically committed by another person. For the sake of simplicity, that other person is referred to in the suggested directions as “the principal offender”, and the person charged with complicity in that crime is referred to as “the accused”. See suggested directions on Conspiracy at [5-5300]; Manslaughter at [5-6200]ff and Murder at [5-6300]ff.

For the general law on complicity and the various ways that an accused may be held criminally responsible for the crime committed by the principal offender under State law: see Pt 9 Crimes Act 1900 (NSW); Criminal Practice and Procedure (NSW), Pt 6 “Criminal responsibility”; Criminal Law (NSW), annotations to Pt 9 Crimes Act at [CA.345.20]ff; New South Wales Law Reform Commission, Complicity, Report 129, 2010.

For the law on complicity in Commonwealth offences: see Pt 2.4 Criminal Code Act 1995 (Cth), especially ss 11.2 and 11.2A. (Note: s 11.2A commenced on 20 February 2010.) As to the position before: see Handlen v The Queen (2011) 245 CLR 282; LexisNexis, Federal Criminal Law, annotations to Pt 2.4 Criminal Code; Thomson Reuters, Federal Offences, annotations to Pt 2.4 Criminal Code.

As to proof of the commission of an offence by the principal offender if that person is tried separately: see s 91(1) Evidence Act 1995.

Accessorial liability

[2-710] Suggested direction — accessory before the fact

Last reviewed: September 2023

This form of liability applies only where the principal offence is a “serious indictable offence”: see ss 346 and 4 Crimes Act; see s 351 in relation to “minor indictable offences”. The applicable directions will depend upon the nature of the issues before the court, for example, whether the accused accepts that the relevant acts relied upon by the Crown were committed but argues that there was no requisite mental state. There is no need to refer to terms such as “counsel” or “procure” unless those terms have been used in the charge, or raised by the parties; “to counsel” means “to order, advise encourage or persuade”; “to procure” means that the accused intentionally took steps to ensure that the offence was committed by the principal.

The identity of the principal offender is not an element of the offence; nor does it need to be proved the accessory knew the personal identity of the principal offender: Jaghbir v R [2023] NSWCCA 175 at [195]–[196]; King v The Queen (1986) 161 CLR 423 at 434.

The Crown accepts that the accused was not present when the crime of [specify offence] was committed by [the principal offender]. But it alleges that the accused is still guilty of that crime because of what they did before the crime was committed by [the principal offender]. This allegation is known in law as being an accessory before the fact to the offence that was later committed by a person I will describe as a principal offender. The Crown must prove beyond reasonable doubt both that [the principal offender] committed an offence of a particular type and that the accused was an accessory to that crime before it was committed.

A person is guilty of being an accessory before the fact where at some time before the crime is actually carried out, the person intentionally encourages or assists [the principal offender] to commit that crime. Therefore, there must be some act committed by the accessory that was intended to bring about the crime later committed by [the principal offender]. The act of an accessory can consist of conduct of encouraging, including advising, urging or persuading the principal offender to commit the crime, or it can be assisting in the preparations for the commission of the crime. It can be both encouraging and assisting [the principal offender].

In this case, the Crown alleges, and must prove beyond reasonable doubt, that the accused [specify the act or acts of encouraging and/or assisting in the preparations relied upon by the Crown] intending that [the principal offender] would commit the crime of [specified offence] later. The Crown must prove that by these acts the accused intentionally [encouraged and/or assisted] [the principal offender] to commit the crime of [specified offence].

The fact that a person knew that another person intended to commit a particular crime does not by itself mean that they are guilty of being an accessory before the fact. Nor is it enough that a person merely approves of the commission of the crime but did not make the approval known to [the principal offender]. To make out the offence, the Crown must prove beyond reasonable doubt that the accused intentionally encouraged [the principal offender] to commit the crime, and/or the accused assisted [the principal offender] in the preparations for the commission of the crime. There must be some conduct on the accused’s part carried out with the intention to [encourage and/or assist] [the principal offender] to commit the crime that was later committed. Here, the Crown relies on [specify the encouragement and/or assistance relied upon by the Crown].

Before a person can be convicted of being an accessory before the fact, the Crown must prove beyond reasonable doubt that, at the time of the encouragement and/or assistance, the accused knew all the essential facts or circumstances which would make what was later done a crime. This includes the state of mind of the principal offender when those acts are carried out. The accused need not actually know that what they encourage and/or assist [the principal offender] to do is in law a crime. The accused does not need to have the legal knowledge that the conduct to be committed by [the principal offender] actually amounts to a criminal offence. But the accused must believe that what they are encouraging and/or assisting [the principal offender] to do are acts that make up the crime committed.

Here, according to the Crown’s allegation, the crime foreseen by the accused was the offence of [specify offence]. The Crown must, therefore, prove that, at the time of the alleged [encouragement and/or assistance] given to [the principal offender], the accused foresaw that [the principal offender] would [set out the elements of the serious indictable offence charged]. Further, the Crown must prove beyond reasonable doubt that the [encouragement and/or assistance] given by the accused was aimed at the commission by [the principal offender] of that criminal act.

In summary, before you can convict the accused of being an accessory, the Crown must prove beyond reasonable doubt each of the following:

1.

that [the principal offender] committed the offence of [specify offence], and

2.

[set out the alternative(s) which apply] that:

(a): the accused intentionally encouraged [the principal offender] to commit that offence, and/or
(b): the accused intentionally set out to assist [the principal offender] in the preparations to commit that offence, and

3.

that the crime which [the principal offender] committed was one that the accused intended would be committed.

[If applicable or was within the scope (see below) of what they foresaw that [the principal offender] would do], and

4.

that the accused knew at the time of [the encouragement and/or assistance] all the essential facts, both of a physical and mental nature, which made what was to be done by [the principal offender] a crime,

[and if applicable (see below):

5.

that the accused, before the crime was committed by [the principal offender] neither had a genuine change of mind nor expressly instructed [the principal offender] not to commit the offence.]

For you to be satisfied that [the principal offender] committed the crime, the Crown must prove each of the following facts beyond reasonable doubt.

[Set out the elements of the specified offence committed by the principal offender.]

[Where applicable, add involvement of third party

The act intended to encourage the commission of the crime or assist in its preparation may be carried out personally by the accused or through the intervention of a third person acting on the accused’s behalf, or a combination of both.]

[Where the offence committed differs from that contemplated

On the facts you find proved by the evidence, you might conclude that the crime foreseen by the accused at the time of the alleged [encouragement and/or assistance] differed from the crime actually committed by [the principal offender]. If that is your finding, then the Crown must prove beyond reasonable doubt that the crime committed by [the principal offender] was nevertheless within the scope of the type of conduct that the accused intended to [encourage and/or assist] and that it was not something materially different from what the accused foresaw would be done by [the principal offender].]

[Where there is evidence of a belief that there is no real possibility of the commission of the crime

If the accused at the time of the alleged [encouragement and/or assistance] does not honestly believe that the commission of the offence by [the principal offender] is a real possibility, the accused is not guilty of being an accessory. The accused claims [set out the details of the claim that it was believed that there was no real possibility that the crime would be committed]. It is necessary for the Crown to prove beyond reasonable doubt that the accused did not honestly have this belief.]

[Where there is evidence of withdrawal by the accused of encouragement and/or assistance

The [encouragement and/or assistance] given to [the principal offender] by an accessory must be continuing. The accused has claimed [set out basis upon which the accused claims to have withdrawn]. The law provides that an accused may avoid criminal responsibility if:

(a): the accused did in fact withdraw his or her encouragement and/or assistance, and
(b): communicated that fact to the principal offender, and
(c): did everything reasonably possible to prevent the commission of the crime.

In these circumstances, the onus is on the Crown to prove beyond reasonable doubt a negative, that is, it must prove that any one of these facts did not occur. That means that the Crown must prove either that the accused did not in fact withdraw their [encouragement and/or assistance] or that the accused did not communicate that fact to [the principal offender], or that the accused did not do everything reasonable possible to prevent the commission of the crime.]

[2-720] Suggested direction — accessory at the fact – aider and abettor

Last reviewed: September 2023

As to the distinction between an aider and abettor, and a principal: see R v Stokes (1990) 51 A Crim R 25. The Crown can prove an offence by proving that the accused was either a principal or an aider and abetter without proving which the accused was: R v Stokes at 35; R v Clough (1992) 28 NSWLR 396 at 398–400. See Mann v R [2016] NSWCCA 10 for the elements of affray for a principal in the second degree or a participant in a joint criminal enterprise.

The Crown does not allege that the accused committed the crime of [specified offence]. The Crown’s allegation is that the accused was what the law calls an aider and abettor in the commission by the principal offender of that crime.

An aider and abettor is a person who is present at the place where, and at the time when, a crime is committed by another person and who intentionally assists or gives encouragement to that other person to commit that crime.

The fact that a person was simply present at the scene of the crime is not enough to make that person an aider and abettor even if the person knew the crime was to be committed. A bystander at the commission of a crime is not guilty of any offence. The Crown must prove beyond reasonable doubt that the person was present at the scene of the crime intending to assist or encourage the person who commits the crime. A person is guilty as an aider and abettor only if the Crown proves beyond reasonable doubt that the person was present when the crime was committed for the purpose of aiding and assisting the principal offender if required to do so. If the person is present for that purpose, that makes the person an aider and abettor in that crime even if such encouragement or assistance is not actually required.

Before you can convict the accused as being an aider and abettor to the commission of an offence, you must first be satisfied beyond reasonable doubt that [the principal offender] committed the crime of [specify offence]. [This fact may, or may not, be an issue at the trial and what is said to the jury will vary accordingly.]

If the Crown has satisfied you of that fact, you must then consider whether, at the time when that crime was being committed, the accused was present, intending to assist or to encourage [the principal offender] in its commission.

Before you could find that the accused intentionally assisted or encouraged [the principal offender] in the commission of the crime, you must be satisfied beyond reasonable doubt that the accused knew all the essential facts or circumstances that gave rise to the commission of the crime by [the principal offender]. The accused does not have to know that what is being done by [the principal offender] is in law a crime. The accused does not need to have legal knowledge that the conduct being carried out by [the principal offender] actually amounts to a criminal offence. But they must know that [the principal offender] intends to commit all the acts that amount to a crime with the state of mind that makes those acts criminal.

The Crown relies on the following matters in support of its allegation that the accused gave assistance or encouragement to [the principal offender] [set out the matters on which the Crown relies].

In short then, to establish that the accused is guilty of the offence charged on the basis that the accused was an aider and abettor, the Crown must prove beyond reasonable doubt each of the following:

1.: the commission of the crime by [the principal offender]
2.: the presence of the accused at the scene of the crime when the crime was committed
3.: the accused’s knowledge of all the essential facts or circumstances that must be proved for the commission of the offence by [the principal offender]
4.: that with that knowledge the accused intentionally assisted or encouraged [the principal offender] to commit that crime.

For you to be satisfied that [the principal offender] committed the crime, the Crown must prove each of the following facts beyond reasonable doubt [set out the elements of the crime committed by the principal offender].

[2-730] Suggested direction — accessory after the fact

Last reviewed: September 2023

As to accessory after the fact, see s 347 Crimes Act 1900 which makes provision for how the accessory may be tried. Sections 348–350 contain provisions relating to punishment, depending upon the nature of the principal offence. The offence of being an accessory after the fact can be committed by rendering assistance either to the principal offender or to a person who aids and abets the principal. The prosecution must establish the accused had knowledge of the precise crime committed by a principal offender: Gall v R [2015] NSWCCA 69 at [164] (confirming a submission at [155]), [249]–[251], [257]).

The Crown does not allege that the accused was involved in the commission of the crime carried out by [the principal offender].

The charge brought against the accused is that they assisted [the principal offender] after they committed the crime of [nature of crime] and gave that assistance with knowledge that [the principal offender] had committed that crime.

Where a person knowingly assists an offender after a crime has been committed, the person is an accessory after the fact to the crime committed by the other person. This allegation is known in law as being an accessory after the fact to the offence that was earlier committed by a person who I will describe as a principal offender. A charge that a person is an accessory after the fact to a crime committed by another is an allegation that the person giving that assistance has themself committed a crime. It is a separate and distinct offence from that committed by the principal offender but it is dependent upon the fact that the principal offender committed a specific crime.

Here, the Crown must prove beyond reasonable doubt both the commission of the crime of [insert crime] by [the principal offender] and that the accused assisted [the principal offender] knowing that the crime had been committed. A person is an accessory after the fact to the commission of a crime if, knowing that the crime has been committed, the person assists the principal offender. It could be, for example, by disposing of the proceeds of the crime, or by doing an act intending to hinder the arrest, trial or punishment of the principal offender.

In this case, the Crown alleges that the accused assisted [the principal offender] by [state allegation by prosecution]. The Crown says this was done with the purpose of [specify the alleged reason for the assistance rendered by the accused]. To be guilty of being an accessory after the fact, the Crown must also prove beyond reasonable doubt that the accused knew [the principal offender] acted in a way and with a particular state of mind that gives rise to a criminal offence. The accused does not need to have the legal knowledge that those facts amount to a crime, but they must know or truly believe that the facts and circumstances giving rise to the specific offence alleged have occurred. [It may be necessary to set out the evidence upon which the Crown relies to establish the knowledge or belief of the accused that an offence has been committed depending upon the issues raised at the trial.]

In summary, before you can convict the accused of the offence of being an accessory after the fact to the commission of a crime, the Crown must satisfy you beyond reasonable doubt of each of the following essential facts:

1.: that the crime of [specify offence] was committed by [the principal offender]
2.: that the accused intentionally assisted [the principal offender]
3.: that at the time of that assistance, the accused was aware of all the essential facts and circumstances that give rise to the precise offence committed by the [the principal offender]
4.: that the accused with that knowledge, intentionally assisted [the principal offender] by [specify the allegation and particularise concisely]
5.: that the accused gave that assistance so that [the principal offender] could escape arrest, trial or punishment for the offence committed by them.

[Where applicable — explanation of belief and knowledge

For the purposes of the offence with which the accused is charged, a well-founded belief is the same as knowledge. A person may know that an event has occurred even though they have not witnessed the occurrence of that event personally. A person can accept what they are told by some person about the occurrence of an event and, therefore, believe that the event has taken place. It will often be the case in a charge of accessory after the fact that the accused is said to have known of the commission of a crime simply on the basis of what they are told by the principal offender or some other person who witnessed the commission of the crime. The accused may come to know that a crime has been committed by the principal offender from inferences that the accused has drawn from facts which they believe have occurred.]

In the present case, the Crown must prove that the accused did [set out the allegation of assistance] knowing or believing that the crime of [set out the alleged crime committed by the principal offender] had been committed by [the principal offender] and gave assistance in the way the Crown alleges with the intention of assisting [the principal offender] to escape [arrest, trial or punishment] for the crime committed by them.

Joint criminal enterprise and common purpose

[2-740] Joint criminal liability

Last reviewed: September 2023

In the usual case it will be necessary for the judge to instruct the jury in relation to the elements of the offence and, where appropriate, the principles governing accessorial or joint enterprise liability: Huynh v The Queen [2013] HCA 6 at [31]. Joint criminal liability between two or more persons for a single crime may be established by the Crown in different ways:

(a): where the crime charged is the very crime that each of the participants agreed to commit: Gillard v The Queen (2003) 219 CLR 1 at [109]–[110]
(b): where the crime committed fell within the scope of the joint criminal enterprise agreed upon as a possible incident in carrying out the offence the subject of the joint criminal enterprise: see McAuliffe v The Queen (1995) 183 CLR 108 at 114–115 affirmed in Miller v The Queen (2016) 259 CLR 380 at [29]; Clayton v The Queen [2006] HCA 58 at [17]
(c): where the crime committed was one that the accused foresaw might have been committed during the commission of the joint criminal enterprise although that crime was outside the scope of the joint criminal enterprise: see McAuliffe v The Queen at 115–118 affirmed in Miller v The Queen at [10], [51], [135], [148].

Joint criminal liability arises from the making of the agreement (tacit or express) and the offender’s participation in its execution: Huynh v The Queen at [37]. A person participates in a joint enterprise by being present when the agreed crime is committed: Huynh v The Queen at [38]; Youkhana v R [2015] NSWCCA 41 at [13]. Although presence at the actual commission of the crime is sufficient, it is not necessary if the offender participated in some other way in furtherance of the enterprise: Dickson v R (2017) 94 NSWLR 476 at [47]–[48]; Sever v R [2010] NSWCCA 135 at [146]; Osland v The Queen (1998) 197 CLR 316 at [27]. If participation by the accused is not in issue a specific direction explaining the concept may not be required: Huynh v The Queen at [32]–[33].

In IL v The Queen (2017) 262 CLR 268 there was disagreement as to what the High Court had held in Osland v The Queen (1998) 197 CLR 316 (see Special Bulletin 33 which explains IL’s case). Bell and Nettle JJ at [65] opined that in a joint criminal enterprise the only acts committed by one participant that are attributed to another participant are those acts that comprise the actus reus of the commission of a crime. Kiefel CJ, Keane and Edelman JJ did not agree: “… joint criminal liability involves the attribution of acts. The attribution of acts means that one person will be personally responsible for the acts of another”. Gaegler J at [106] agreed with Kiefel CJ, Keane and Edelman JJ. See also Gordon J at [152]. The direction below follows the prevailing view in IL’s case.

In Miller v The Queen, the plurality at [6]–[45] reviewed the history of the doctrine of extended joint criminal enterprise, including the UK decision of R v Jogee [2016] 2 WLR 681, and the current law as stated in McAuliffe v The Queen at 114–115. The High Court declined to alter the law following R v Jogee. If any change to the law is to be made, it should be made by the Parliament: Miller v The Queen at [41].

The concept of extended common purpose only arises where the offence committed is different from the offence which is the subject of the joint criminal enterprise (referred to as the foundational offence): see May v R [2012] NSWCCA 111 at [249]–[252].

For the purposes of the following suggested directions on extended criminal liability, (b) and (c) above are merged because the distinction may be confusing to a jury. Whether the crime committed is foreseen as a possible incident in carrying out the joint criminal enterprise, (b) above, or foreseen as a possible consequence of the commission of the joint criminal enterprise, (c) above, is not so significant a distinction as to require separate directions to meet those particular factual situations. The accused is criminally liable for the commission of the further offence, if they foresee the possibility of it being committed during the course of carrying out the joint criminal exercise no matter what the reason is for that foresight. The suggested directions use the term “additional crime” rather than “incidental crime” or “consequential crime” to avoid the distinction which seems to be of theoretical more than of practical significance. It may be that, where the additional offence is viewed as incidental to the commission of the joint criminal enterprise, it will be more easily proved that the commission of that offence was foreseen as a possibility by a particular participant. The suggested directions are based on a scenario where the crime, the subject of the joint enterprise is committed and an additional crime is also committed.

[2-750] Suggested direction — (a) joint criminal enterprise

Last reviewed: September 2023

The law is that where two or more persons carry out a joint criminal enterprise, that is an agreement to carry out a particular criminal activity, each is held to be criminally responsible for the acts of another participant in carrying out that enterprise or activity. This is so regardless of the particular role played in that enterprise by any particular participant. The Crown must establish both the existence of a joint criminal enterprise and the participation in it by the accused.

A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The agreement need not be expressed in words, and its existence may be inferred from all the facts and circumstances surrounding the commission of the offence that are found proved on the evidence.

The agreement need not have been reached at any particular point in time before the crime is committed, provided that at the time of the commission of the crime the participants have agreed that the crime should be committed by any one or all of them.

The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish that at some point in time an agreement has been reached between them that the crime should be committed. For example, if two people are at the very same time punching a third person, a jury could infer or conclude that they had agreed to assault that person.

It does not matter whether the agreed crime is committed by only one or some of the participants in the joint criminal enterprise, or whether they all played an active part in committing that crime. All of the participants in the enterprise are equally guilty of committing the crime regardless of the actual part played by each in its commission.

The Crown must prove beyond reasonable doubt that the crime which was the subject of the joint agreement was in fact committed. It therefore must prove beyond reasonable doubt that each of the essential facts or ingredients, which make up that crime, was committed, regardless of who actually committed them [specify the ingredients of the crime charged]. Further in respect of a particular accused, the Crown must prove beyond reasonable doubt that he/she or they was a participant in the commission of that crime as part of a joint criminal enterprise with one or more persons.

Note:: It is essential to identify the elements of the offence the subject of the joint criminal enterprise and to direct the jury that the participants agreed to do all the acts with the relevant intention necessary to establish the offence: TWL v R [2012] NSWCCA 57 at [36].

[The following example may be given if thought appropriate in assisting the jury to understand the concept of a joint criminal enterprise. Care should be taken in not making the example more serious than the actual offence before the court. The following is an example of a possible scenario that might appropriately be given to the jury.]

You may take the following as an example of the operation of the law relating to joint criminal enterprise. Suppose that three people are driving in the same vehicle and they see a house with a lot of newspapers at the gate. One says to the others, “Let’s check out this place”. The car pulls up, two of them get out and one of them stays in the car behind the steering wheel with the engine running, while the other two go to the front door. One of the two persons breaks the glass panel on the outside of the door, places a hand through the panel, unlatching the door and opening it. The other goes inside and collects some valuables and comes out. Meanwhile, the one who opened the door has returned to the vehicle without entering the house. The question arises whether the three of them have by their acts and intentions committed the offence of breaking into the house and stealing objects from it.

Only one of them broke into the house (being the person who broke the glass panel and put a hand inside to open the door). Only one of them entered the house and stole something (that is the one who removed the valuables from the house) and the third person did neither of those things. But the law provides that, if a jury were satisfied that by their actions (rather than merely by their words) all three had reached an understanding or arrangement which amounted to an agreement between them to commit the crime of break, enter and steal from a house, each of the three is criminally responsible for the acts of the others. On this example all three could be found guilty of breaking, entering and stealing from the house regardless of what each actually did.

[2-760] Suggested direction — (b) and (c) extended common purpose

Last reviewed: September 2023

Note:: The suggested direction is based on a scenario where the crime the subject of the joint enterprise is committed and an additional crime is also committed.

The law is that where two or more persons carry out a joint criminal enterprise, that is an agreement to carry out a particular criminal activity, each is responsible for the acts of another participant in carrying out that enterprise or activity. This is so regardless of the role taken by a particular participant. The Crown must establish both the existence of a joint criminal enterprise and the participation in it by the accused.

A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The agreement need not be expressed in words, and its existence may be inferred from all the facts and circumstances surrounding the commission of the offence that are found proved on the evidence.

The agreement need not have been reached at any particular time before the crime is committed, provided that at the time of the commission of the crime, the participants have agreed that the crime should be committed by any one or all of them.

The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish that at some point in time an agreement has been reached between them that the crime should be committed. For example, if two people are at the very same time punching a third person, a jury could infer or conclude that they had agreed to assault that person.

It does not matter whether the agreed crime is committed by only one or some of the participants in the joint criminal enterprise, or whether they all played an active part in committing that crime. All of the participants in the enterprise are equally guilty of committing the crime regardless of the actual part played by each in its commission.

The Crown must prove beyond reasonable doubt that the crime which was the subject of the joint agreement was in fact committed. It therefore must prove beyond reasonable doubt that each of the essential facts or ingredients, which make up that crime, was committed, regardless of who actually committed them. Further, in respect of a particular accused, the Crown must prove beyond reasonable doubt that he/she or they was a participant in the commission of that crime as part of a joint criminal enterprise with one or more persons.

But it may be that in carrying out the joint criminal enterprise, one of the participants commits an additional offence that was not the crime that they had agreed to commit but was one that at least one or some of the other participants foresaw might be committed. In such a case, not only would each of those participants be guilty of the offence that they agreed to commit, but those participants who foresaw the possibility of the commission of the additional offence would also be guilty of the additional offence.

Here, the Crown alleges the accused was a participant in a joint criminal enterprise to commit the offence of [insert offence alleged by the Crown] and they foresaw that the additional crime of [insert additional offence alleged by the Crown] might be committed. So for the accused to be guilty of the additional crime, the Crown must prove beyond reasonable doubt that they foresaw the possibility that this crime might be committed in carrying out the joint criminal enterprise. The Crown alleges that the additional crime committed is [insert alleged offence].

Note:: It is essential to identify the elements of the additional offence and to direct the jury that the accused must foresee the other participant or participants might do all the acts with the relevant intention necessary to establish the commission of the additional offence: McAuliffe v The Queen (1995) 183 CLR 108 at 114–115. This part of the direction will vary according to the facts.

[An example of the commission of an additional crime outside the scope of the joint enterprise might be as given to the jury if appropriate as follows.]

As an example of the principle that I have just explained to you, let us suppose that three people plan to rob a bank. The plan is that one person will drive the getaway car, another is to stand guard at the doorway to warn of any approach by the police and assist in their getaway from the bank, and the third is to enter the bank itself with a sawn-off shotgun. It is the third person’s job to use the shotgun to threaten the teller into handing over the money. That is, the crime to which they have jointly agreed is to be committed by them carrying out their assigned roles, and all three could be found guilty of the crime of armed robbery on the bank staff. The person who drives the car is just as guilty as the one to whom the money is handed over by the teller. You may think that that is only common sense.

The three members of this joint criminal enterprise accordingly reach the bank: one is sitting in the get-away vehicle, another is keeping guard at the door and the third is armed with the gun and inside the bank. However, suppose that things do not go as planned and the teller reaches over to press an alarm button despite a warning not to do so. As a result, the robber in the bank deliberately fires the gun at the teller to stop the alarm being sounded and wounds the teller.

At the time this is happening, of course, the robber in the bank is alone and has no opportunity to consult with the other two persons as to what should be done as a result of the actions of the teller. The other two have no control over what the third person does. The question may arise as to whether the other two persons are criminally responsible for the more serious crime that has been committed by the third man being an armed robbery with wounding.

First of all, as I have explained, each of the three is guilty of the crime which was the immediate subject of their original agreement: that is the armed robbery of the bank. That is because everyone who embarks upon a joint criminal enterprise is criminally responsible for all of the acts done by each of them in the execution or carrying out of the agreed crime.

Because things do not always turn out precisely as planned, the law makes each participant in the joint enterprise criminally responsible, not only for the acts done as part of that enterprise, but also for any additional acts that the participant foresees as possibly being committed in carrying out the joint criminal enterprise. If any one of the participants does an act which they all foresaw may possibly be done in the course of committing the agreed crime, then all of them are criminally responsible for that act. Thus, to take the example which I have already given you, if the person guarding the door pushed a bystander out of the way to prevent that person from interfering with their escape after the armed robbery was complete, all three would be guilty of that assault as well as of the armed robbery, if the possibility that the person on guard may have to do something like that was, obviously enough, originally foreseen by them in carrying out the robbery.

On the other hand, and to take perhaps an extreme example, if the person guarding the door (unknown to the others) had a hand grenade, removed the pin and lobbed it inside the bank to prevent those inside from interfering with their escape, you might think that this is hardly an act that the others would foresee as possibly happening during the robbery, and, therefore, they would not be guilty of any offence resulting from the injuries caused by the explosion. This person’s act of throwing a grenade would not have been foreseen as incidental to or as a consequence of the execution of the joint criminal enterprise to carry out an armed robbery

In relation to the wounding of the teller by the person with the sawn-off shotgun however, the question is whether the discharge of the weapon was foreseen by the others as a possible occurrence in carrying out the armed robbery. That question is answered by a consideration of what a particular participant knew about the circumstances in which the robbery was to take place. If, for example, the other members of the joint criminal enterprise were aware that the robber in the bank would be armed with a loaded weapon, a jury might conclude that in those circumstances the agreement to threaten the teller with the weapon might possibly include the commission of an additional crime being that in carrying out that threat the weapon would be fired, if the teller resisted, and some person may be injured as a result. The jury in such a case would be entitled to convict all three participants in the armed robbery of the more serious crime of armed robbery with wounding, even though the wounding was not part of the agreement and even though only one of them was actually involved in the wounding. Such a conviction would follow if the Crown proves beyond reasonable doubt that each of the participants foresaw the possibility of the shotgun being fired and injuring someone as a result.

[If appropriate — where the Crown alleges different liability between participants, that is, there is different evidence as to each participant’s knowledge of the events surrounding the enterprise which the Crown alleges leads to different conclusions as to the foreseeability of the additional offence, add]:

Let us now consider a further situation, one where not everyone engaged in the joint criminal enterprise foresaw the possibility that the shotgun would be fired injuring someone in the bank. Let us assume, for example, that there had been a discussion amongst the three participants to the joint enterprise beforehand as to whether the gun should be loaded, and there had been a clear agreement reached between them that it would be unloaded. If, notwithstanding this agreement and unbeknown to the others, the man with the shotgun had loaded it, then the others would not be criminally responsible for any injury caused by the discharge of the weapon during the robbery. This is because the discharge of the weapon was not part of the agreement and could not have been foreseen by the others as a possible incident or consequence occurring in the course of carrying out the robbery.

But let us now assume another scenario. Suppose that one of the other two participants, let us say the driver of the getaway car, knew that the person who was to carry the shotgun was unhappy with the agreement that the gun should not be loaded, that this person had access to ammunition and that he/she or they was someone who could not always be trusted to keep his or her word. In such a case, a jury might find it proved beyond reasonable doubt that despite the agreement reached that the gun should not be loaded, the driver foresaw that the person armed with the gun might load it and so foresaw that there was a possibility that the gun would be discharged during the robbery injuring some person in the bank. If the jury found beyond reasonable doubt that the driver had this possibility in mind and yet nevertheless continued to take part in the armed robbery, they could convict the driver of the more serious crime of armed robbery with wounding, even though there was a clear agreement between the parties that the gun was not to be loaded, and even though the third member of the group had no idea that the gun might be loaded. In such a case, the jury might convict the robber and the driver of the more serious offence involving the wounding but not the third member.

[2-770] Suggested direction — application of joint criminal enterprise to constructive murder

Last reviewed: September 2023

As to the liability of a participant in a joint enterprise for murder based upon the commission of an offence punishable by imprisonment for life or 25 years (constructive murder), see R v Sharah (1992) 30 NSWLR 292 at 297–298. The directions for constructive murder must address both the liability of the accused for the offence punishable by imprisonment for life or 25 years (the foundational offence) and the liability of the accused for murder based upon his or her liability for the foundational offence: see R v Thurston [2004] NSWCCA 98 at [3]–[9] and Batcheldor v R [2014] NSWCCA 252 at [80]–[82] where the judge failed to direct the jury as to the appellant’s liability for the foundational offence of specially aggravated kidnapping. The judge must direct the jury that it is for them to:

(a): identify the act causing death; and
(b): decide whether the act causing death was voluntary or accidental: Penza v R [2013] NSWCCA 21 at [167].

See further discussion in Voluntary act of the accused at [4-350]. It has been noted that the decision in R v Sharah, introduced an element of knowledge on the part of the accomplice of the possibility of the discharge of the weapon, even though that knowledge was not a requirement under the common law: see the NSW Law Reform Commission, Complicity, Report 129, 2010 at p 148 and RA Hulme J’s discussion in Batcheldor v R at [128]–[132].

In IL v The Queen (2017) 262 CLR 268, some of the Justices passed comment about R v Sharah. Gordon J opined at [166] that constructive murder under s 18(1)(a) Crimes Act 1900 did not require any additional foresight on the part of the accomplice; Bell and Nettle JJ noted at [89] that although R v Sharah has been “questioned” by the NSWCCA resolution of the issue can await another day; Gageler J at [102] said R v Sharah was not challenged (in IL v The Queen) but it is not inconsistent with Jordan CJ’s explanation of felony murder in R v Surridge (1942) 42 SR (NSW) 278 at 282. Kiefel CJ, Keane and Edelman JJ in IL v The Queen did not comment on R v Sharah.

In R v Sharah, the foundational offence relied upon by the Crown was armed robbery with wounding. A suggested direction based upon R v Sharah for such a case follows.

Of course, the particular direction given will have to be adapted to the particular foundational crime upon which the charge of murder is based and the peculiar facts of the particular case before the jury. The person actually causing the death of the victim of the murder charge is described as “the principal offender”. In R v Sharah, the victim of the foundational offence was different to the victim of the murder.

The Crown must first prove, beyond reasonable doubt, that the accused is criminally liable for the foundational offence of armed robbery with wounding by proving each of the following:

1.: that there was a joint enterprise between the accused and [the principal offender] to rob [the victim] while [the principal offender] was, to the knowledge of the accused, armed with an offensive weapon, namely [describe weapon] (proof of these facts gives rise to criminal liability of the accused for the offence of armed robbery), and
2.: that during the course of the armed robbery [the principal offender] wounded [the victim], and
3.: that the accused foresaw that, in carrying out the joint criminal enterprise of armed robbery, such a wounding might occur (proof of this fact gives rise to criminal liability of the accused for armed robbery with wounding).

In order to prove that the accused is liable for murder, the Crown must further prove beyond reasonable doubt:

1.: that during the course of commission of the offence of armed robbery with wounding, or immediately after the commission of that offence, [the principal offender] discharged the gun, causing the death of [the deceased], and
2.: the discharge of the gun by [the principal offender] during, or immediately after, the armed robbery with wounding of [the victim] was a possibility which the accused had in mind when agreeing to participate in the armed robbery. It does not matter whether the gun was fired intentionally or whether it was necessary for the gun to be fired for the purpose of carrying out the armed robbery.

[2-780] Notes

Last reviewed: September 2023

1.: The application of the doctrine of extended joint criminal enterprise (or extended common purpose) to constructive murder was considered in the South Australian context in Mitchell v The King [2023] HCA 5. It was held that combining the doctrine with the statutory provision of constructive murder (s 12A of the Criminal Law Consolidation Act 1935 (SA)) was impermissible as it amounted to creating a new doctrine of “constructive, constructive murder”, where no such doctrine has ever existed. Section 12A is drafted in somewhat similar terms to s 18 of the Crimes Act 1900 (NSW).

[2-790] Suggested direction — withdrawal from the joint criminal enterprise

Last reviewed: September 2023

As to withdrawal from a joint criminal enterprise, see R v Tietie (1988) 34 A Crim R 438 at 445–447 applying White v Ridley (1978) 140 CLR 342 at 348–351. It is a question of fact to be decided by the jury whether a co-accused has withdrawn from a criminal enterprise: Tierney v R [2016] NSWCCA 144 at [19]. The jury must be satisfied beyond reasonable doubt that the accused did not intend to withdraw or did not take reasonable steps to prevent the co-accused from committing the crime: Tierney v R at [19]. There is no obligation to direct jury specifically in the terms of R v Sully (2012) 112 SASR 157: Tierney v R at [19].

A person who is part of a joint criminal enterprise to commit a particular crime may withdraw from that enterprise. If they do withdraw, they cease to be criminally responsible for that crime if the other members of the enterprise go on to commit the offence after the withdrawal.

To withdraw from a joint criminal enterprise to commit a crime, a person must take such action as they can reasonably perform to undo the effect of their previous encouragement or participation in the joint enterprise and thereby to prevent the commission of the crime. What is reasonable depends upon all the circumstances.

[Where applicable, add

Usually, this will involve, if it is reasonable and practicable to do so, the person communicating the fact of their withdrawal, verbally or otherwise, to the other members of the joint enterprise, in sufficient time before the crime is committed, trying to persuade the other members not to proceed, and notifying the police or the victim of the intended crime.]

[Where applicable, add

Where an accused decides to withdraw at the last minute, that is, immediately before the offence is committed, they must take all reasonable and practicable steps to prevent the commission of the crime and to frustrate the joint enterprise of which they had been a member. Otherwise they may have left it too late to withdraw. The example which is often given is that, if the enterprise is to dynamite a building, it is not enough for a member of the enterprise simply to declare an intent to withdraw from the enterprise. If the fuse has been lit, the person must attempt to put out the fuse.]

There is no onus placed upon the accused to establish that they withdrew from the joint criminal enterprise. As part of its overall onus of proof, the Crown must prove beyond reasonable doubt that the accused did not withdraw. It will do so by proving beyond reasonable doubt that the accused either:

1.: did not intend to withdraw from the joint enterprise, or
2.: if they did so intend, the accused did not take such action as they reasonably could to prevent the others from proceeding to commit the crime.

It is sufficient if the Crown has proved one of these alternatives. Unless the accused did what they reasonably could to prevent the commission of the crime, the accused remains criminally responsible for that crime even though the accused took no further part. It is sufficient if the action taken by the accused was capable of being effective, even though the action failed to frustrate the commission of the crime.