Who Has Criminal Liability? (Vic)

When a crime is committed by two or more people, everyone involved can be held responsible under the criminal law. The principles surrounding criminal liability for physical acts committed by others used to be governed by the common law. They were known variously as ‘common purpose’, ‘acting in concert’, and ‘joint criminal enterprise’. There was a lot of disagreement and inconsistency about the definition and application of these different terms. As a result, the criminal liability of persons involved in the commission of offences has now been codified in Sections 323 to 324C of the Victorian Crimes Act 1958. This article outlines what the prosecution must prove for the court to find a person guilty under these provisions.

Person involved in an offence

Section 324 of the Crimes Act is a ‘catch-all’ provision that replaces the confusing common law principles of ‘common purpose’, ‘joint criminal enterprise’ and ‘acting in concert’. Those principles no longer apply. Section 324 of the Crimes Act, which has replaced them, states:

If an offence is committed, any person who is involved is taken to have committed the offence and is liable for the maximum penalty that applies to the offence.

A person is not taken to have committed an offence if they withdraw from the agremeent before the offence has begun. 

This means that if a person is proven to have participated in any way in the commission of the offence, and has not withdrawn, they are criminally liable and are subject to the same maximum penalty as the principal.

How is criminal liability proven?

For a person to be found guilty under section 324, the following must be proven:

• That two or more people agreed to take part in a criminal activity and the agreement was still in place at the time the crime was committed;
• That the accused participated;
• That one or more parties performed all the acts necessary to make out the offence;
• The accused had the state of mind that is required for the offence to be made out at the time the agreement was formed.

The principal offender does not have to have been found guilty of the offence for a co-offender to be found to have criminal liability under Section 324.

What does ‘participate’ mean?

Under section 323 participation in a criminal activity includes:

• The intentional assistance, encouragement or direction of the commission of the offence;
• The intentional assistance, encouragement or direction of the commission of another offence where it was probable that the offence being prosecuted would be carried out;
• The entry into an agreement, arrangement or understanding with one or more other persons to commit a criminal offence;
• The entry into an agreement, arrangement or understanding with one or more others to commit another offence where it was probable the offence charged would be carried out;

Unlike section 324, for criminal liability under this section to be proven, the accused does not need to have reached an agreement with the principal, but only to have encouraged or assisted them. Mere presence at the scene of the offence does not constitute encouragement. The accused must have said or done something to adopt or contribute to the offence.

A person can be involved in committing an offence through an act or omission. In some circumstances, such as where an accused is the parent of a juvenile, a failure to discourage the offence may be found to amount to involvement.

Withdrawing from an offence

Under Section 324(2) if a person has withdrawn from an offence, they are not guilty of participating in the offence.

Case law has established that a person effectively withdraws from a criminal agreement if:

• They encouraged the commission of the offence, but subsequently issued a ‘timely countermand’;
• They had agreed to participate in an offence but communicated their intention to abandon the agreement in a timely manner to the others involved. What is timely will depend on the facts but should amount to unequivocal notice to the other persons involved that if they continue the endeavour they will be doing so without support or assistance. from the person.
• The withdrawal must be effective if the person is to be excused from criminal responsibility. It is not enough for the person to have simply changed their mind. 

Accessories

Under Section 325, where a person has committed a serious indictable offence and another person, knowing them to be guilty of the serious indictable offence, does any act to impede their apprehension, conviction, prosecution and punishment, that person is also guilty of an indictable offence.

Where a person is found not guilty of an offence as a principal, they may still be found guilty as an accessory if there is proof that the offence was committed with their participation.

The legislation sets out the maximum penalty that applies to a person found guilty as an accessory. In most cases, this is not more than five years imprisonment or half of the maximum penalty that applies to the principal offender. The exception to this is where the principal is punishable by life imprisonment. In this case, an accessory faces a maximum penalty of imprisonment for 20 years.

If you require legal advice or representation please contact Armstrong Legal.