Joint responsibility for criminal offences - an overview of criminal complicity in Victoria
Criminal complicity has been described as a concept whereby one person can be liable for the criminal acts of another (Indictable Offences in Victoria, Freckleton and Andrewartha, edition 2010 page 141).
And as noted by the same authors, the involvement of participants in a criminal offence may vary in a number of ways:
- direct encouragement or advice to another person to commit the offence;
- assist in the commission of the offence (without being present);
- although not physically taking part in the commission, be present and assisting when the crime is committed;
- personally commit the crime or be a member of a team which commits the crime; or
- after the crime has been committed, assist the offender to avoid apprehension or take steps to conceal the commission of the crime.
The law on criminal complicity is extensive and complex and so the purpose of this article is simply to provide an overview of the applicable legislation.
'Abettors, Accessories and Concealers of Offences'
The law of complicity has developed over many years through the common law and it's application in the Victoria criminal justice system is found in Division 1, of Part II of the Crimes Act 1958 (Vic) which is entitled 'Abettors, Accessories and Concealers of Offences'.
Section 323 (1) provides that a person is involved in the commission of an offence if the person:
a) intentionally assists, encourages or directs the commission of the offence; or
b) intentionally assists, encourages or directs the commission of another offence where the person was aware that it was probable that the offence charged would be committed in the course of carrying out the other offence; or
c) enters into an agreement, arrangement or understanding with another person to commit the offence; or
d) enters into an agreement, arrangement or understanding with another person to commit another offence where the person was aware that it was probable that the offence charged would be committed in the course of carrying out the other offence.
(2) In determining whether a person has encouraged the commission of an offence, it is irrelevant whether or not the person who committed the offence in fact was encouraged to commit the offence.
Section 324(1) of the Crimes Act 1958 (Vic) also provides that:
If an offence (whether indictable or summary) is committed, a person who is involved in the commission of the offence is taken to have committed the offence and is liable to the maximum penalty for that offence.
However, if a person withdraws from participation in the offence he or she will be taken to have committed the offence (section 324(2).
Under Division 1 of the Crimes Act 1958 (Vic), a person who becomes involved to try and conceal an offence, or avoid a person becoming apprehended for it is referred to as an accessory. By reason of section 325 of the Crimes Act, an accessory is liable for the same punishment as the principal offender. Section 325 provides:
Where a person (in this section called the principal offender ) has committed a serious indictable offence (in this section called the principal offence ), any other person who, knowing or believing the principal offender to be guilty of the principal offence or some other serious indictable offence, without lawful authority or reasonable excuse does any act with the purpose of impeding the apprehension, prosecution, conviction or punishment of the principal offender shall be guilty of an indictable offence.
Abettors not prosecuted under the Family Violence Protection Act 2008 (Vic) for breach offences.
An Intervention Order contains conditions for the protection of an affected family member. Contravention of these conditions will invariably cause the police to lay a criminal offence against a respondent for Contravene Family Violence Order (as per section 123 of the Family Violence Protection Act).
In circumstances, where the breach had come about due to an invitation by an AFM to meet (that invitation being made in the knowledge that IVO prohibition that contact) is an AFM jointly liable for punishment applying the law as set out above?
Section 125 of the Family Violence Protection Act 2008 (Vic) expressly excludes Part II, Division 1 and provides:
For the purposes of Subdivision (1) of Division 1 of Part II of the Crimes Act 1958 , a protected person is not involved in the commission of an offence against this Act, and is not punishable as a principal offender, because the protected person encourages, permits or authorises conduct by the respondent that contravenes the family violence intervention order or family violence safety notice.
Offences that often involve issues of joint criminal responsibility
Certain types of offences frequently involve issues of joint criminal responsibility by reason that they often feature multiple offenders, and the participants in the alleged offending may have varied roles. Such offences include:
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