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Culpability of an Offender- Case
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Added on 2020-02-24
Culpability of an Offender- Case
Added on 2020-02-24
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1CULPABILITY OF AN OFFENDERIntroductionMiller 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 Actrequires 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 foreseeabilityis 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 VentureSection 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 thepossibility of the secondary crime occurring, when they were engaged in the primary crime. This1Miller v The Queen [2016] HCA 302McAuliffe v The Queen (1995) 183 CLR 108 31958 Crimes Act section 323 (1) (d) 4Criminal Code Act Section 1983 (8) (1) 5Criminal Code Act 1983 (8)
2paper 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 incontemplation 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 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. 6Crimes Act s 3247R V Jensen (1980) VR 8Johns v the Queen (1980) 143 CLR 108
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