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Week 3 Secondary Liability (Secondary liability may arise for a person…

- - - - It is for the prosecution to establish a principal offence has been committed: see King v R (1986) 161 CLR 423 at 433-436 per Dawson J and Osland v R (1998) 197 CLR 316 at 323-324 per Gaudron and Gummow JJ.
        
        The prosecution does not need to establish that there has been a conviction – guilt proven, of the principal offender: see R v Lopuszynski [1971] QWN 33.
  - - - The effect of section 7(1)(b)-(d) of the Criminal Code (Qld) is the secondary party will be an accessory where it is proven their conduct enabled, aided, counselled, or procured another person to commit an offence when they had knowledge of the principal offence and acted with an intention to enable, aid, counsel or procure the principal offence.
        
        2.2.1 Accessorial Liability – Physical Act
        
        The prosecution must establish the defendant is connected with the principal offender. In R v Russell [1933] VR 59 at 67 Cussen ACJ said: the defendant must be shown to have “in some way linked in purpose with the person actually committing the crime, and is by his words or conduct doing something to bring about, or rendering more likely, such commission”.
        
        section 7(1) of the Criminal Code (Qld
        
        2.2.2 Aiding and Enabling
        
        Section 7(1)(b) Criminal Code (Qld) deems every person ‘who does or omits to do any act for the purposes of enabling or aiding another person to commit the offence’ to be a party of the offence.
        
        Section 7(1)(c) of the Criminal Code (Qld) deems every person ‘who aids another person in committing the offence’ to be a party to the offence.
        
        prohibits a person from aiding another to commit the principal offence by giving support, helping or assisting: R v Beck [1990] 1 Qd R 30 at 38 per Macrossan CJ.
        
        The terminology to aid and abet under section 7(1)(c) of the Criminal Code (Qld) was discussed by McPherson JA at [12] in R v Sherrington and Kuchler [2001] QCA 105
        
        1) Intentionally helping the principal in the first degree to commit the crime
        
        2) Intentionally encouraging the principal in the first degree by their presence or behaviour to commit the offence; or
        
        3) Intentionally conveying to the principal in the first degree by words or presence and behaviour that one is assenting to and concurring in the commission of the crime
        
        2.2.3 Counselling
        
        Where a person ‘urges’, ‘advises’ or ‘solicits’ another person to commit the principle offence, they are said to ‘counsel’: see Stuart v R (1974) 134 CLR 425 at 445 per Gibbs J.
        
        At 444 Gibbs J further held, where the offence actually committed is different to the offence which the person was counselled to commit, and the offence was a ‘probable consequence’ as a result of the counsel – the accessory provisions will apply extending such liability.
        
        section 9(1) of the Criminal Code (Qld) extends liability to include this conduct.
        
        2.2.4 Procuring
        
        To procure is to engage in conduct that is greater than encouragement. The meaning of procure is given ‘its ordinary meaning’: R v Georgiou (2002) 131 A Crim R 150 at 160.
        
        Procure encompasses the defendant, ‘producing by endeavour’ the party to participate and can include for example providing an incentive to participate: Truong v R (2004) 223 CLR 122 per Gleeson CJ, McHugh and Heydon JJ.
        
        2.2.5 Accessorial Liability – Requisite Mental Elements
        
        In Giorgianni v R (1985) 156 CLR 473 at 487-488 per Gibbs CJ it was held accessorial liability requires two elements.
        The effect of the two elements in Giorgianni is a defendant can only be liable as an accessory for a principal offence they contemplated for conduct committed by the principal offender that is not within their contemplation.
        
        1) The defendant knew all of the essential facts which made the principal offence a crime; and
        
        2) Intentionally enabled, aided, counselled or procured the conduct of the principal offender.
  - - - 1) The first element requires two or more persons to form a common intention to prosecute an unlawful purpose;
      - 2) The second element requires an offence to be committed with the subjective intention to commit an unlawful purpose;
      - 3) The third element requires that the offence was a probable consequence of the prosecution of the common purpose.