South Australia
The Australian practice in criminal law holds persons who agree to commonly engage in a criminal act or omission bear the responsibility of the results of their actions. This is so if their actions are as a result and in fulfillment or an agreement by a group of parties. The law on accessorial liability has undergone so much jurisprudential facelift with time. This has taken center stage with increased activities of the judges who have expanded on the principles guiding the law on accessory liability.
Australia has different rules on the criminal responsibility of accessories. Southern Australia has been guided by the common law which originates from England. On the other hand, the Nothern Territory is guided by the statute law majorly derived from the NothernTerritory Criminal Code Act.
Under common law, the law on accessorial liability has certain words with common connotations as accessories. Such words include complicity, common place, and joint criminal enterprise and or extended joint enterprise. This therefore means that an accessory after the fact or before the fact must be regarded as a party to an offence.
Therefore, for the common law principle to apply, it is necessary to prove both the intention and the action were present as the essential elements of committing a criminal act or omission. In common law, courts have upheld that for the offence of murder to be proved certain elements have to be proved within the larger elements of actus reus and the mens rea. First, there must be proved that the victim died. Secondly, the actions of the offender must have directly caused the death and that the offence was conducted with malice aforethought.
It is logical to determine if the offence is proved against either Brown or Morley. From the Perspective of Morley, with respect to the first requirement, it is clear that Mrs. Leggett has died at her bedroom. Additionally, with regard to the second element, it is clearly satisfied because it is undisputed that Mr. Morley went to the deceased bedroom attempted to smother the deceased and strangled her to death.
With regards to the third element, there is however a contention because Morley contends that he was suffering from temporary insanity when the criminal act was done. This contention has to be dealt with because insanity has an ability of depreciating the intention to commit an offence. No doubt the common law position governing the area of this defense is clearly set in the case of Stapleton v The Queen. This case is an exposition of the M’Naghten Rules and the common law. Further advice have been in tandem with the above case law position with suggestions that the judges should consider if the accused person could not know that at the act of killing was wrong due to some disease or disorder.
Having been able to prove a murder case against Morley, a question arises as to whether Brown was an accessory to the acts committed by Morley and if so, if he can be held liable under common law as applicable in the case of Miller v Queen. In the Miller case, the appellant had been convicted of murder by the Court of Criminal Appeal of the Supreme Court of Australia on the basis that he together with Betts and three others were involved in altercation with deceased before the Betts fatally stabbed the deceased. In leaving the matter for the jury to decide on the liability of Miller and the three others, the judge affirmed that the common law principle of liability of accessories ought not to be abandoned.
Miller v Queen
The first criterion is that the alleged accessory shall be upheld as so if he agrees to commit or joins with another person I committing an offence. The question that needs to be addressed is in evaluating the satisfaction of this criterion is whether there was an existing agreement between Morley and Brown. The Crown proved evidence that both parties had mad an arrangement for killing the deceased, Mrs. Leggett in order to steal some money. In fact a day before the killing, the two spent most of the time together. In this arrangement, Brown was to play a role of cover up. On the face of it even without evaluation of the alleged surrounding facts, it is clear that there was an agreement however loose between Brown and Morley.
Second criterion was on the foreseeability that participation in the arrangement could cause death or infliction of serious bodily harm. Brown fared that what was about to happen to Mrs. Leggett would happen to his wife or parents if he did not oblige. These points to the fact that he understood the contents of the directions and the ultimate end result would be death so as to achieve the most-death motive was to steal money which was realizable only, at least according to their understanding, upon the death of the landlord, Mrs. Leggett.
The third criterion is on the intention to do so with the awareness that continuing to do so would lead to commission of an offence. It is clear from the facts of the instant case that there was no withdrawal. Just like in Millers case, the altercations continued on until the time of fatal attack. Though lack of withdrawal is not a final indicator, it would be a decisive factor in determining the direction that the case ought to take. The participation though nagging took place throughout the whole continuum.
The fourth criterion is now the most important in respect to Millers case as it was the ground on which the appeal by Miller was allowed. This criterion is the sufficiency of evidence linking the accessory to the acts or omission constitution the offence. To put this to perspective, it is important to understand first that the majority held in Miller case that the appeal is allowed in the circumstances as the lower court failed to review the sufficiency of evidence to sustain the appellant conviction. The majority rule upheld that the verdict of the lower court was unreasonable and could not be supported by evidence.
One of the factors which were not keenly looked at by the Australian courts in the case of Miller v The Queen was the fact that the accused persons alleged intoxication at the time of committing the alleged criminal act during the altercations. In the instant case it was an issue of involuntariness and duress as the depreciating factor. The principle of reasonableness will therefore cut across. The issue is whether Brown will rely on the duress and involuntariness claimed and secondly and intertwine whether there is sufficient evidence to prove that. These are issues because the voluntariness affects the activeness of the participation in the whole arrangement process.
Northern Territory
The rule of law applicable as per the Millers case is that courts will apply the law of duress both at times of war and at time of peace. The courts also are not ready to hold that the rule of duress is applicable in a case where a person conducts an act or anything to further death of another under the influence of duress unless the person was an inert instrument. The courts in the instant case would weigh what would happen to Brown if he did not give in to the compulsion. However the position not to grant an excuse would carry the day as he did it in furtherance of an earlier arrangement and that it is only the agreement which had changed in its nature.
Nothern Territory is governed by the Nothern Territory Criminal Code. The position it takes would be entirely coded in the statutes with little expansions in the decided cases. It would be interesting just to know how the Northern Territory Criminal Code would apply to the three issues as earlier dealt with under the Miller case. The three issues are the insanity claims by Morley, duress and involuntariness claimed by Brown and the criteria used for accessory responsibility.
One notable difference is the application of the statutory law on accessory liability to the wife of Mr. Brown, Mrs. Brown. This is achieved by the lifting of the veil created by the institution of marriage. Normally, the institution of marriage is treated as a unified unit with a husband or wife not being able to testify against each other. However, in case the killing is done in Nothern Territory, the Wife of Mr. Brown, Mrs. Brown shall also be liable for prosecution for the offence of murder. This is pursuant to provisions of section 13(2) of Nothern Territory Criminal Code that provides that any spouse would be an accessory in a criminal act committed b the other partner.
This would be supported by the fact that she was also present at the Sunday meeting between Morley and Brown and was living in the house in which the deceased was strangled. Another fact placing Mrs. Brown at the scene is that fact that she was among the people accompanying Morley and Brown to Adelaide Hospital for interviewing after Ractac, a food poison, was administered to the drink the deceased and she later became ill after. Mrs. Brown also listened to the conversation in their bedroom at night a day before the strangling to death of the deceased.
This position is further fortified by the provisions of section 8 of the code which talks of offences resulting from the commission of another offence. It is to the effect that when a group of persons acting with a common intent to procure the commission of an offence commonly as a group, whether such offence is committed as a group or a section of that group, all the other original parties who engaged in the planning would be held criminally liable for the offence committed by that individual or a section of that group. A party has to prove that he or she did not foresee that the planned criminal act could result in the commission of the secondary offence.
Comparison with South Australia
Subsection (2) states further that the intention is formed on decision to conduct a criminal act together with another person, the results of which would result in the commission of either another criminal act or omission or a tortious act as well.
The second difference would be in the application of an objective approach in determining the excuse of duress. As to the issue of duress raised by Mr. Brown, the statute provides circumstances under which duress can be raised.
The law on liability of accessories revolve around forming of common intention, counseling another person to conduct an offence, abetting, being an accessory before or after the fact. All these warrant similar punishment as the doer of the principal act constitution an offence. Duress used to acquire participation is not an automatic excuse.
However, it is my considered opinion that where an error of widening the law has been made, the law should be corrected. These reforms should take the form of emending the laws while still maintaining the laws. Therefore, necessary institutions ought to rise to the occasion and to provide for various amendments to the law. The arguments for this general opinion are predicated on the following reasons:
The rule on duress in section 40 of Nothern Territory Criminal Code is one that needs reform. His is because the rules on duress are self-defeating. For instance, section 40 of the Code provides for a combination of subjective and objective tests to wit: police reporting, ability to resist and ordinary person standing in the shoes of the alleged assessor. However a self-defeating qualification is made in in the form of an exemption to all these rules if a serious harm is caused. This means that a Pandora box is opened on commission of an offence involving serious harm to prosecute an indeterminate class of people. However, if the same structure of section 40 of the Code is maintained as it is, then the law on accessory liability sees to expose so many members to prosecution leading to insecurity. I however advocate for the retention of the second limb of the exemption to be maintained while the first limb is deleted since the society needs to be protected from conspiracy amongst criminals.
The rule on accessory liability threatens the already fragile institution of marriage. Allowing a wife to be an accessory after the fact is placing an onerous duty on the wife, who for all intents and purposes should be acting in unity, accord and with confidence with one another in a marriage setting. The provision of section 13(2) on requirement of a wife to be accessories after the fact, though not drafted in mandatory terms have the potential of misuse and locking up most of the wives of offenders if not all, for similar offences committed by their husbands.
The second limb of this suggestion is the gender bias that waives on the face of the existing world movements towards gender equality. The suggestion that wives may be accessory after the fact to the commissions or omissions by their husbands impliedly suggest that only men commit crimes and that women can only be accessories.
Conclusion
The law in Australia is therefore to the effect that treatment of secondary criminal offenders; accessories before the act, during the act and after the act are different. While the northern territory uses a criminal code that treat accessories to have a lesser criminal responsibility, the southern territory applies the common law rules which hold principle offenders and accessories to bear equal responsibility for an act or omission.
Lastly, the rules on foresight as a means of holding an accessory liable are really unjust. For example, holding an accused liable for murder because of the foreseeability of the commission of another offence is fundamentally unjust. This is because the possibility can be fictitious. Secondly, foreseeability is lesser than mens rea and therefore holding one liable for the offence committed by the principal on this reason alone is unjust. The effective application of the objective test alone in this regard shall be enough to solve the serious disharmony in the law.
References
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Colleton Chambers, Back to the Past: Supreme Court Reverses the Law on Accessory Liability (28 March,2017) available on web at:https://www.colletonchambers.co.uk/latest-news/back-to-the-past-supreme-court-reverses-the-law-on-accessory-liability/
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Northern Territory Criminal Code, 2013
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