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Contents
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1.1 Agreement
Sexual Assault
4 Innocent agency
1.2 Presence
1.3 Withdrawal
There are four elements of withdrawal. The prosecution has the onus of disproving them
beyond a reasonable doubt.
1. The withdrawal must be complete (Tietie).9
2. The withdrawal must be timely (Tietie), before it is too late to stop the crime
(White).10
3. The withdrawal must be communicated to the others (Tietie).
4. The withdrawer must reasonably dissuade the others from continuing (White;
Truong):11
a. What must be done depends on the circumstances of each case (White).12
b. If the accused honestly believed that the others would not continue, then no
further preventative steps will be required (Truong).
It is assumed that the requirements of withdrawal for other types of complicity are the same.13
Sexual Assault
4 Innocent agency
The method of carrying out the additional crime does not need to be foreseen
(Anderson;19 Duong;20 Keenan).21
The others do not have to be present at the scene of the crime (McAuliffe).25
14 McAuliffe and McAuliffe (1995) 130 ALR 26, 27-33 (Brennan CJ, Deane, Dawson,
Toohey and Gummow JJ) (HCA).
15 Barlow (1997) 188 CLR 1.
16 Gilbert (2000) 201 CLR 414.
17 Gillard [2003] HCA 64, [19] (Gleeson CJ and Callinan J; Kirby agreeing).
18 Clayton (2006) 231 ALR 500.
19 Anderson and Morris [1966] 2 QB 110 (EngCA).
20 Duong (1992) 61 A Crim R 140 (NSWCCA).
21 Keenan (2009) 236 CLR 397, [121]-[123] (Kiefel J) (in relation to the Queensland
Criminal Code s 8).
22 Taufahema [2007] HCA 11 (Example of resisting or hindering police executing duty,
leading to murdering police).
23 Miller (1980) 32 ALR 321 (Miller repeatedly drove Worrell to sexually assault and murder
others, while Miller waited in the car. Miller did not agree to a foundational crime, but
foresaw the possibility of murder, and thus was liable).
24 Taufahema [2007] HCA 11, [39] (Gleeson CJ and Callinan J).
Sexual Assault
4 Innocent agency
The others may be liable for a foreseeable crime (e.g. manslaughter) even if the
additional crime was actually more serious (e.g. murder) (Nguyen).26
25 McAuliffe and McAuliffe (1995) 130 ALR 26, approving Johns (TS) (1980) 143 CLR 108
(Street CJ).
26 Nguyen [2010] HCA 38.
Sexual Assault
4 Innocent agency
It discourages enterprises.27
It protects society from gangs.28
Enterprises often escalate.29
Secondary parties do not need the actus reus and mens rea of the additional offence.
The possibility threshold is arguably too low.30
Secondary parties may have lower tests (e.g. foresight) than principals (e.g.
intention).31
Extended liability (foresight) has a lower test than accessorial liability (intention).32
The different tests for different types of complicity confuses judges and juries.33
3 Accessorial liability
Accessories aid, abet, counsel or procure the commission of a crime.
Sexual Assault
4 Innocent agency
Aiding, abetting and counselling Require meeting of the minds (AGs Ref).
Procuring Does not require meeting of the minds (AGs Ref).
Sexual Assault
4 Innocent agency
The first degree does not need to be aware of acts of assistance (Lam).42
The first degree needs to be aware of acts of encouragement (Lam).
The first degree does not need to actually be assisted or encouraged (Lam).
Sexual Assault
4 Innocent agency
Mental elements
There are two mental elements:
1. The accessory must intend to encourage or assist the crime (Giorgianni;43 Golding).44
The accessory only needs to intend to aid or abet the kind of crime (Ancuta).45
The accessory need not intend to assist the precise way in which the principal
2. The accessory must know the essential facts of the crime (Giorgianni).
The essential facts are the actus reus and mens rea of the crime (Stokes).48
The accessory need only contemplate some crime, not the precise crime. But a
Accessorial victims
A victim cannot be an accessory for an offence that is for the victims benefit
(Tyrell).49
However, victims may be liable for policy reasons (Keane).50
The Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 14(7) provides that
a beneficiary of an AVO cannot be an accessory for its breach.
43 Giorgianni (1985) 156 CLR 473, 501-509 (Wilson, Deane and Dawson JJ) (HCA).
44 Golding and Edwards [2008] SASC 68 (SACCA).
45 Ancuta (1990) 49 A Crim R 307 (QCCA).
46 Bainbridge [1960] 1 QB 129, 133 (Lord Parker CJ).
47 National Coal Board v Gamble [1959] 1 QB 11 (EngCA).
48 Stokes and Difford (1990) 51 A Crim R 25 (NSWCCA).
49 Tyrell [1894] 1 QB 710.
50 Keane (1997) 95 A Crim R 593 (SASC) (police resources should not be wasted on people
seeking orders but then condoning its breach).
Sexual Assault
4 Innocent agency
Sexual Assault
4 Innocent agency
4 Innocent agency
A person who acts through an innocent instrument may still be liable (Cogan;51
Pinkstone).52
This person is a principal offender, not an accessory (Hewitt).53
The instrument must be innocent (Franklin).54
Thus, undercover police cannot be innocent agents (Pinkstone).55
Being an accessory after the fact is an offence in itself (not derived from the
principal).
They must know all the facts and acts of the precise crime (Stone).56
Being an accessory includes (Barlow):57
o Hindering being apprehended, tried or suffering sentences;
o Receiving and disguising unlawfully-acquired goods;
o Assisting with escape from arrest or punishment;
o Having the principal in custody, but intentionally and voluntarily letting the
principal to escape;
Merely enjoying the proceeds of crime is insufficient (Barlow; Young).58
The maximum penalty is usually 5 years (Crimes Act ss 348-351), except murder (25
years) and armed robbery (14 years) (s 349).
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Sexual Assault
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6 Concealing a crime
The Crimes Act 1900 (NSW) s 316 provides that:
(1) It is an offence to fail (without reasonable excuse) to inform authorities if you know
or believe that a serious indictable offence has been committed, and you have
information that might materially assist apprehension, prosecution or conviction (2
years).
(2) It is offence to solicit, accept, or agree to accept a benefit for not informing (5 years).
7 Conspiracy
The offence of conspiracy occurs when two or more people:
1. Agree to commit an unlawful act (LK);59 and
2. Intend to commit the unlawful act (Siracusa;60 LK;61 Ansari).62; and
3. Know the physical elements of the unlawful act (LK;63 Ansari).64
7.1 Agreement
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Sexual Assault
4 Innocent agency
At common law, the agreement does not need to be put into action (Rogerson).68
However, overt acts may indicate what was agreed (Bijkerk).69
The Criminal Code (Cth) s 11.5(2)(c) provides that there must be an overt act.
You can conspire with unknown people, but it is difficult to prove (OBrien).70
Conspiracy is a continuing crime. People can join or leave, as long as there are at least
two people (Masters).71
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Sexual Assault
4 Innocent agency
Intention is required, even if the substantive offence does not require intention
and know that your activities extend beyond your own dealings with the person at the
centre of the conspiracy (Chrastny).78
Large conspiracies may be proved if individual conspiracies are part of a wider
network, and have a common purpose in the network. They do not necessarily have to
assist each other (Lee).79
Conspirers can be liable even they cannot successfully commit the crime (Onuorah).80
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Sexual Assault
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However, conspirers cannot be liable if they agree to do a lawful act (e.g. receiving
goods believed to be, but not actually, stolen) (Barbouttis).81
81 Barbouttis (1995) 37 NSWLR 256 (Dunford and Smart JJ; Gleeson CJ dissenting)
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