Extended secondary liability

To be guilty of serious crime you must intend to do the prohibited thing. Intention is the fundamental requirement for liability. Those two statements require some qualification. Recklessness is often sufficient. There is a difference between a person who actually does the act (the principal offender) and one of the two sorts of secondary participants. The first sort of secondary parties are those who aid, abet, counsel or procure the commission of the offence. These people are liable if, like the principal, they intend the prohibited acts (or are reckless as to whether or not they occur). But, the second sort of secondary party, the one we will be concerned with here, is the person who assists in the commission of one offence, knowing that the principal “could” commit another offence; the question is, what sort of state of mind is needed by the secondary party for liability for that other offence?

I have put the word “could” in quotation marks because there is some variation in the law about what attitude the secondary party must have towards the commission of that other offence. In New Zealand, s 66(2) of the Crimes Act 1961 puts it like this:

“Where 2 or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose.”

The critical phrase here is “known to be a probable consequence”. Although this sort of secondary party can be liable without actually intending that the other offence be committed, he must regard its commission as a “probable”, rather than a “possible” consequence. This puts the requirement as higher than recklessness, which is usually understood to mean taking a known risk.

There is, therefore, room for some dissatisfaction with this law, as the principal offender may, depending on the definition of the offence in question, only be liable for prohibited conduct that he intended, while the secondary participant is liable merely because he knew its occurrence was probable even if he didn’t want it to happen.

The law of homicide is usually the source of illustrations by commentators, but this is a bad example. To put it in simplified terms, murder can be committed by the principal offender even though he doesn’t intend to kill: recklessness is sufficient. There is not, therefore, the disparity between parties as there might be in relation to some other offences. Nevertheless, in Clayton v R [2006] HCA 58 (13 December 2006) the appellants, convicted as secondary parties to murder, asked the High Court of Australia to change the law. In Victoria, the state of mind required by this sort of secondary party is defined by common law as knowledge that the commission of the other offence (here, murder) was “possible”. This is a lower standard for liability than “probable”. Kirby J, dissenting, thought that the anomalies in the law would be avoided if the requirement was changed to “probable” (para 121), but the other members of the Court declined to change the common law, emphasising that there was no disparity between the forms of liability as the principal could be liable without intending to kill (para 16), and that the issue might really amount to a change in the law of homicide, a matter that should be left to the legislature (para 19).

At para 20 the majority refer to the jurisprudential basis for the different forms of liability:

“Further, no change could be undertaken to the law of extended common purpose without examining the whole of the law with respect to secondary liability for crime. The history of the distinction between joint enterprise liability and secondary liability as an aider, abettor, counsellor or procurer of an offence has recently been traced by Professor Simester ["The Mental Element in Complicity", (2006) 122 Law Quarterly Review 578 at 596-598]. As that author demonstrates [at 598-599], liability as an aider and abettor is grounded in the secondary party's contribution to another's crime. By contrast, in joint enterprise cases, the wrong lies in the mutual embarkation on a crime, and the participants are liable for what they foresee as the possible results of that venture. In some cases, the accused may be guilty both as an aider and abettor, and as participant in a joint criminal enterprise. That factual intersection of the two different sets of principles does not deny their separate utility.”

This was the extent of the majority’s reference to the “separate utility” of the different forms of liability. Kirby J, at para 107, was not convinced by Simester’s rationale:

“The justification presented by Simester …[Simester and Sullivan, Criminal Law Theory and Doctrine, 2nd ed (2003) at 226; see also Simester, "The Mental Element in Complicity", (2006) 122 Law Quarterly Review 578 at 592-601] is ultimately unpersuasive. The law may indeed dislike group anti-social activities, particularly where they result in death. But a rational and just legal system will dislike such activities equally, whether the conduct charged is prosecuted as an offence of acting in concert or of aiding and abetting others in carrying out the group activity. The law will not withdraw from one means only of establishing the offence (by reliance upon extended common purpose liability) the normal requirement of the modern criminal law that the prosecution prove a requisite intention on the part of the secondary offender.”

The New Zealand Court of Appeal has taken this logical approach of treating principal and secondary parties on the same footing: R v Tuhoro [1998] 3 NZLR 568; (1998) 15 CRNZ 568 (CA), 573:

“Having regard to the increasing number of persons prepared to combine for major criminal activity, … it is neither contrary to public policy nor unjust to hold them to account on the same basis as the actual perpetrator of any crimes within the scope of their criminal plan.”