Joint Criminal Activity and Culpability

This assignment analyzes the principles governing culpability in cases of joint criminal activity, particularly when a secondary crime occurs during the commission of a primary offense. It examines relevant sections of the Criminal Code Act 1983 and case law such as *Williamson v Ah* and *Miller v The Queen*. The analysis emphasizes the burden of proof on suspects to demonstrate the foreseeability of secondary crimes and the factors considered in determining accessory liability.

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CULPABILITY OF AN OFFENDER
Introduction
Miller v The Queen [2016] HCA 30 is an important case that seeks to establish the test in
which the courts can hold an accused liable to a criminal offence that emerges, because of the
commission of another crime, that he was involved in planning and commissioning1. In this case,
the court denoted that for an accused to be liable for such a crime, then there is a need of
proofing the fact that he could foresee the possibility of the occurrence of such a crime, during
the commission of the original that they participated in. Note that, the case Miller v The Queen,
was brought forth to challenge a precedent that was established in McAuliffe v The Queen (1995)
183 CLR 1082.This was a landmark case that brought forth the principles of extended criminal
liability and the test that it had to pass, in case the courts was to hold another person culpable for
the offence committed by the group. According to the decision established in this court, a person
should be held responsible for the crimes of his group, if he foresaw the probability of the
criminal activity occurring, during the time in which they were involved in planning an original
crime. Note that, Miller v the Queen was a case that was brought forth, to challenge this
principle.
Nevertheless, the Australian High Court refused to set aside the law, in Miller v the
Queen, and allowed its practice in the country. Section 323 (1) (d) of the 1958 Crimes Act
requires that a prosecutor proves the foreseeability of the probability of the criminal activity
happening, if a prosecution under the extended joint criminal activity has to be successful3.
Nonetheless, the requirement by s 323 (1) (d) of the act to prove the probability of foreseeability
is under criticism, due to the fact that it breaches the doctrines of common law, which requires
the onus of proof to be that the accused foresaw a possibility of the crime occurring. In fact,
section 8 (1) of the 1983 Criminal Code Act denotes that the onus of proof should be a possible
foreseeability4. Therefore, the argument of this paper is that s 323 (1) (d) is not effective in
addressing problems touching on the culpability of an individual in a joint criminal activity. It is
the view of this paper, that the 1983 Criminal Code Act provides an effective solution and test
that can help to determine the culpability of a suspect.
Perceived Dangers of a Joint Criminal Venture
Section 323 and section 8 of the 1983 Criminal Code Act focuses on criminal joint
ventures. These ventures are very dangerous to the people who are involved in them, because of
the liability that they may have in a court of law5. For instance, one of the perceived dangers is
the occurrence of a secondary crime that was not planned. This is very dangerous to other
members of the group, because they may be held liable for the criminal activity, even if, they
were not present when the crime occurred. They might be charged as accessories, aiders, etc. to
the criminal activity. All that the prosecution needs to proof is the fact that they could foresee the
possibility of the secondary crime occurring, when they were engaged in the primary crime. This
1 Miller v The Queen [2016] HCA 30
2 McAuliffe v The Queen (1995) 183 CLR 108
3 1958 Crimes Act section 323 (1) (d)
4 Criminal Code Act Section 1983 (8) (1)
5 Criminal Code Act 1983 (8)

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paper mainly focuses on this perceived danger, when analyzing the effectiveness of section 323
(1) (d) and section 8 (1) of the Criminal Codes Act.
Section 323 (1) (d) and Culpability of an Accused
Note that, the 1958 Crimes Act, section 323 (1) to section 324 is able to provide and
identify the provisions of the notion of complicity. This is are statutory principles that replaces
terms such as extended common purpose, counseling, abetting, etc. In fact, there are provisions
that are contained in section 324C of the 1958 Crimes Act6. Note that, parliament was able to
abolish these parts of law, basically because they were not effective and efficient in finding an
accused to be culpable to a consequent criminal offence, that has resulted during the commission
of another crime. While examining this concept of extended joint common purpose, section 323
(1) (d) of the 1958 Crimes Act provides a clear description on what it is. The section denotes that,
the section denotes that, you can hold an accused liable, under the principles of a joint extended
common purpose, if the person is able to enter into an agreement, with another person or a group,
to commit a criminal activity, and he foresees the probability of another crime occurring, during
the commission of the criminal activity that was occurring. On this note, the concept focuses on
notion of a probable foreseeability of an offence, during the process of engaging in a planned
criminal activity.
This notion of a foreseeable probability is controversial, and it is one of the reasons that
made this statute to be less effective in finding out whether an individual is culpable of a
criminal activity or not. In fact, section 323 (1) (d) has replaced these notions of extended
common purpose, with other new methods of ascertaining the liability of an accused, which are
based on the principles that govern the commission of secondary offences. This is an aspect that
is called derivative liability, and it is found in s 324 of the 1958 Crimes Act, which has been
responsible for replacing section 323. Under this principle of derivative liability, the concept of
complicity can only be proved; if a secondary crime has been committed. Moreover, the burden
of prove still remains with the prosecutor as established in the leading case law of R V Jensen
(1980) VR7. In this case, the prosecutor should proof that the person who committed the offence
actually had the intention of committing the secondary criminal offence, before holding the
accused liable. This means that the court should not only concentrate in proving the
foreseeability of a criminal event happening, but the prosecutor should proof that the 1 suspect
had the intention of committing the secondary criminal activity, during the process of
committing a crime they had planned as a group.
Moreover, this is a decision that is supported in Johns v the Queen (1980) 143 CLR 1088.
In this case, the court held that an accessory will have the same responsibility as the primary
offender, in case the prosecution is able to proof the fact that he and the primary offender were in
contemplation of committing the secondary crime, and it was foreseeable, and the crime was
committed out of intention. Moreover, in this case, the court introduces the term contemplation.
In the view of the court, this was a possibility that the secondary crime would be committed by
the primary offender, since it was foreseen as a possibility: when they were planning to commit
6 Crimes Act s 324
7 R V Jensen (1980) VR
8 Johns v the Queen (1980) 143 CLR 108

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the original crime. From this case law and statute, it is possible to assert that the court was
criticizing the use of a probable foreseeability as a test for proving complicity.
Basing on these facts, it is possible to assert that s 323 (1) (d) of the 1958 Crimes Act is not
effective in addressing the culpability of an accuser to an extended common purpose criminal
activity9. This is basically because it is not aligned to the doctrines that are established under the
common law principles, that establishes the test of proof to be on the foreseeable possibility of a
crime occurring. Now, the question to ask is whether the 1983 Criminal Code Act is effective in
addressing issues touching on the culpability of an accuse to be complicit in a criminal activity.
The Criminal Code Act and Culpability of an Offender
Section 8 (1) of the criminal code act of 1983 provides a test in which the courts can hold a
person liable or culpable for a secondary offence under a crime that is committed by a group. For
instance, the section denotes that, if 2 or more people come together, with the common intention
of engaging in unlawful activity, and while in the process of engaging in such an activity, a
secondary crime occurs, then, each of the people who have engaged in the criminal activity will
be held responsible for the offence, unless, they are able to prove the fact that they did not
foresee the possibility of the secondary criminal activity occurring. This is a radical change to the
provisions contained in s 323 (1) (d) of the 1958 Crimes Act, which recognizes the principles of
foreseeable probability and places the onus of proving it to the prosecutor. However, the onus of
proving that the accused did not foresee the possibility of the secondary act occurring is on the
suspect, this is in accordance to the 1983 Criminal Code Act.
Section 8 (1) of the Criminal Code Act is supported by a number of common law
principles. A good example is Giorgianni v R (1985) 15610. In this case, the court was able to
establish that an accused can be held liable for the offences of a primary accuser, if he foresaw
the possibility of the crime occurring. However, in this case, the court established a test of a
possible foreseeability. In the ruling of the court, for an individual to be held culpable for the
crime of a primary offender, there is a need of proving the fact that he was aware of all the
circumstances that will emerge during the commission of a primary offence, and he was on a
sound mind. R v Stokes & Difford (1990) is an important case law that provides the importance
of examining the mental capability and condition of a secondary offender, during the process of
planning the crime11. Note that, while examining the mental condition of the secondary offender,
he must prove that he had no intention of participating in the principal offence, thus he did not
have the essential facts and information about the primary crime that occurred.
Basing on these facts, it is possible to assert that by establishing the burden of proof to be
on a foreseeable possibility, and putting the onus of proof to a suspect, the Criminal Code Act is
very effective and efficient in determining the culpability of a suspect, in a secondary criminal
activity.
Consistency of Reversing the Onus of Proof
One of the most important common law principles on the burden of proof is that the
prosecutor should proof beyond reasonable doubt that an accused is guilty of a crime. This is a
principle that was first established in Woolmington v DPP [1935] UKHL 1, where the courts
9 Crimes Act 1958 s 323 (1) (d)
10 Giorgianni v R (1985) 156
11 R v Stokes & Difford (1990)

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ruled that a person is first presumed innocent, until the prosecutor is able to proof beyond
reasonable doubt that he is guilty of an offence12. On this note, the House of Lords in this case
denoted that the presumption of proof to a suspect is an important individual right that cannot be
removed from the suspect. Note that, this notion of burden of proof laying on the state, manages
to create a relationship between an individual and the state, and the aim is to ensure that an
innocent civilian is not jailed. On this note, placing the burden of proof to a suspect is not
consistent to the common law principles that are established by Woolmington v DPP, and other
similar cases.
Nonetheless, in Williamson v Ah[1926] HCA 46, Justice Isaac was able to rule that reversing
the burden of proof may be justifiable in certain circumstances13. While ruling on this issue, the
judge explained that it is a person who comes up with an affirmation of an issue, who should
then prove it. Section 8 (1) of the 1983 Criminal Code Act places the burden of proof to a
suspect, in regarding proving that he was not able to foresee the possibility of a secondary crime
happening. This is an assertion that an accused can make, while defending himself against the
accusation of a secondary offence carried out by a group. Thus, as per the principles established
in Williamson v Ah, there is a balance between the personal liberty of a suspect and the
sovereignty of a state, when such a person is a suspect is allowed to proof his case, in such
circumstances.
Conclusion
Finally, the Criminal Code Act is the best law that is able to determine the culpability of a
suspect who have engaged in a joint criminal activity. This is in regard to the occurrence of a
secondary crime during the process of carrying out the primary crime. Moreover, the principles
established in this case law is supported by a number of common law doctrines that places the
burden of proof to a suspect, when it comes to proving the foreseeability of possibilities. It is
because of the weaknesses of s 323 of the 1958 Crimes Act, that parliament was able to repel and
replace the sections. The sections were replaced in a manner that, to convict an accessory to a
secondary crime, there is a need of looking at other factors such as the intention of the primary
offender during the commission of the secondary crime, and a foreseeability of possibilities.
Bibliography
Cases
12 Woolmington v DPP [1935] UKHL 1
13 Williamson v Ah[1926] HCA 46

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Giorgianni v R (1985) 156
Johns v the Queen (1980) 143 CLR 108
McAuliffe v The Queen (1995) 183 CLR 108
Miller v The Queen [2016] HCA 30
R V Jensen (1980) VR
R v Stokes & Difford (1990)
Williamson v Ah[1926] HCA 46
Woolmington v DPP [1935] UKHL 1
Laws
Crimes Act s 324
Crimes Act 1958 s 323 (1) (d)
Criminal Code Act 1983 (8)
Criminal Code Act Section 1983 (8) (1)