Posted: June 30th, 2022

LAW 2599 Criminal Law

Question:

The South Australian Case of Brown & Morley.

Imagine that the murder occurred on February 27, 2017, and that Brown and Morley were both charged with murder.

Discuss the law of accessorial liability if the killing occurred in South Australia using Miller 2016 HCA30

If the killing occurred in the Northern Territory, discuss any differences.

c. Let us know your opinion about whether or not the law governing liability for accessory murderers in the Northern Territory needs to be changed.

Answer:

Accessorial Liability Law:

Accessorial liability doctrine extends criminal liability to persons who are not part of a criminal joint venture but were involved in the commission or commission of crime.

To be held accountable for crimes under accessorial liability, the accused must satisfy the following elements:

Actus reus- the accused must satisfy one of these elements:

Principle of second degree- The accused must be present at the commission of the crime.

Even if the second degree principle is intended to be applied only to those who are present or consent, mere presence or acceptance does not suffice.

The accused must have assisted, encouraged, counseled, or procured the crime through encouragement or assistance.

The accused must offer such encouragement and support in the presence offender. However, there is no need for influence.

Court may also consider the presence of an offender in elastic form. This is sufficient evidence to prove that accused is close to and helping offender.

The accessory before the fact: the accused must have participated in the preliminary stage by aiding, abetted and procuring the crime, but he was not there when the crime was committed.

While assistance must be given at the time that the offender was present, there is no need to influence.

Mens Rea- The accused must intend to help the crime in order to benefit Mens Rea, and not for the crime itself.

It is important that the accused has a basic knowledge of the facts surrounding the offence.

Mens Rea can be present in the case even if the accused does not know the exact crime, but has knowledge of similar crimes.

If the accused is convicted of a more serious crime than the one he assisted, he will only be held responsible for the lesser crime he assisted.

If all the above elements are proven, then accused is liable under accessorial liability.

Accessorial liability is derivative. This means that the accused is only liable for the crime if the primary offender is also found liable.

The defense provided by the primary offender is also available to the accused.

This is evident in the case Miller v The Queen [2016] HCA 30. The case was decided by French CJ and Kiefel, Bell Nettle, Nettle, and Gordon JJ.

Court examined the doctrine of complicity in criminal law. Also known as “extended criminal purpose” or “extended jointly criminal enterprise”, this case dealt with the doctrine.

Court abrogated or restricted this doctrine in McAuliffe, Queen 1

This doctrine can be used to establish the secondary offender’s guilt for murder in cases of general application.

This doctrine says that an accused is guilty in this instance of murder if he/she was a part of the crime committed and foresees the death of another person through this co-venture with intent to murder.

Giorgianni (1985) 156 CLR 473, [1985] HCA 29. This doctrine was criticized for not being consistent with the principles accessorial liability. The mental element of reckless killing was also considered.

This doctrine is often criticized for being too criminalizing. It means that secondary offenders are subject to criminal liability even if they have no moral culpability.

This criticism was used to support an application to reopen McAuliffe’s case Clayton v The Queen.

Court refused by majority. The reason for the majority refusal was that McAuliffe principle becomes part of common law in other nations.

These principles are also applied in Chan Wing Siu v The Queen

McAuliffe law states that joint enterprise can be defined as when two or more people agree to commit any crime.

In such cases, there is no need for an express agreement and joint enterprise can be determined based on the conduct of each party.

Both Brown and Morley were charged in the presente case with the murder of a woman.

In this case, it was proven that Morley murdered the woman. Brown was also liable as primary offenders. Prosecutors also alleged that Brown was liable under the principle o second degree under the accessorial liability. Brown was part of an agreement with Morley.

Brown said that Morley had threatened him, and that if Brown didn’t follow his orders, Morley would murder his wife.

Morley forced Brown to play cards with him and put a knife in his throat. He also threatened him with murder if he didn’t follow his instructions.

Morley later instructed Brown to place Ratsac in his coffee. However, he would only put a quarter teaspoon because he knew it could cause no harm.

Morley stopped Brown from calling police and threatened to harm brown.

Brown has not fulfilled Actus Reus or Mens Rea in this case, and he did not commit the crime with any guilty intent.

In this case, the Miller v The Queen principle is not applicable.

Brown is therefore not liable in this case under accessorial liability.

B.

The Northern Territory of Australia Criminal Code Act Section 156 states that a person can be convicted of murder if they engage in conduct that causes death to another person and intend to cause serious harm to this person or to any other person.

The offence of murder is not covered by section 43BF.

You should note that section 158 and/or 159 can be reduced to manslaughter when the act of causing death was provoked or if the defendant proves that he is mentally impaired.

According to Section 157, anyone convicted of murder is subject to life imprisonment. This penalty is mandatory.

You can be sentenced to 14 years imprisonment for conspiracy to murder.

The Code Section 158 states that a partial defense of provocation is allowed. According to this section, a defendant is not guilty of murder if provocation was applied to his case.

Defense of provocation is when the conduct of the defendant that caused death is due to the victim’s actions towards the defendant.

This defense also applies if the conduct of the deceased caused any normal person to lose self-control and form an intention to kill the deceased.

Courts can consider a variety of conduct, including insulting words and gestures directed at or affecting defendant as conduct that causes him to lose his self-control.

Defense of provocation may be invoked by defendant, regardless of whether the defendant’s conduct caused death immediately following the conduct of the deceased or later.

While any conduct of the deceased that includes non-violent sexual advances towards the defendant does not constitute a defense of provocation of defense, this conduct is considered together with the other conduct of the deceased to determine whether the defense has been established.

If the conduct that caused death was not provoked by the defendant’s conduct, then the rule of law does not apply. The conduct that caused death is considered to be provocation if it is clear that there is no relationship between the conduct and the conduct of deceased.

Defense of provocation requires defendant to show his part. Any defendant who does not comply with this section is likely to be convicted for murder.

Section 159 of this code provides partial defense for reducing responsibility. A person who is guilty or suspected of murder cannot be convicted if his mental capacity was substantially impaired at time of crime. The defendant should not be convicted of murder, due to the severity of the impairment.

This section 160 states that a person is guilty of the crime of manslaughter when he causes the death of another person.

The punishment for manslaughter under Section 161 is provided in the Code. Any person found guilty of manslaughter can be sentenced to life imprisonment.

Morley claimed that the judge did not consider the manslaughter in the case and that he did not give any direction to the jury regarding manslaughter. Morley then used the defense of insanity.

Morley cannot use the defense of manslaughter or doctrine of insanity if the NT criminal code is applicable. This is because it is essential that the conduct of the deceased induced defendant’s conduct. In this case, the lady did not do anything which would have provoked the Morley.

This act was intended to steal the money.

Morley cannot therefore use this defense.

One more point: If the NT criminal code was applied, then punishment for murder would be imprisonment of life rather than death.

The law Commission for England and Wales recognizes the difficulties that were caused by accessorial liability.

Accessorial liability is a unique concept that is based on joint enterprise.

This commission recommended that a provision be introduced which addresses the intention to encourage or assist in the commission or belief of an offence.

This approach was developed by the Commission to introduce the concept of nonderivative offenses.

Bronitt & McSherry state that this provision gives the prosecutors broad discretion because they don’t have to prove the defendant committed the offence. However, if the defendant does intend to do so, then the prosecution can prove it.

Many authors have stated that the introduction of non-derivative offenses is not effective in clearing out those strains that are present within the framework of complicity.

These conceptual strains can be minimized by section 8-10 of the NT criminal law.

Law states that if two people commit a crime together in certain circumstances, both are liable. In such a situation, both are liable and are considered to have acted in concert.

Law defines the circumstances and provisions under which one person can be held responsible for the actions of another.

Accessorial liability can be defined in many ways. For example, accessorial liability refers to the act of one person that is considered an offence. The accused may encourage or aid the offender in committing the crime.

Accessorial liability provisions state that the mere fact that an accused is present at the scene or has knowledge of the crime does not render them guilty.

This doctrine needs to be amended in certain areas.

This doctrine must be expanded.

These elements are essential in order to make a person responsible for the actions of another person.

The defendant must have solicited, requested, imported or deliberately aided the person to engage in such conduct.

This conduct must be committed with the intent of causing death or serious injury to another person.

It is important to note that if defendant is proven to have participated in the commission, the degree of participation does not matter. In this case, defendant will be held responsible for the conduct or another person.

We recommend that such a provision be introduced. If the accused is found guilty under the doctrines of joint enterprise, he should be held responsible to the same extent as he committed the crime.

The liability of the accused should be comparable to that of the primary offender. No reliability should be given to him.

The prosecution has a lot of work to do in order to prove that the defendant intended to commit the crime or that he was just encouraging or aiding another person.

Both of these situations fulfill the essential elements.

The accused must also be held accountable in the same way as the primary offender.

Joachim Dietrich’s “The Liability Of Accessories Under Statute In Equity And In Criminal Law : Some Common Problems and (Perhaps?) Common Solutions”, http://law.unimelb.edu.au/__data/assets/pdf_file/0006/1703589/34_1_4.pdf>. accessed 6th April 2017.

Uni Study Guides, Accessorial Liability, http://www.unistudyguides.com/wiki/Accessorial_Liability>. accessed 6 April 2017.

Miller v The Queen [2016] HCA 30,

McAuliffe vs The Queen1

Gillard v The Queen (2003 219 CLR 1); [2003] HCA64.

Giorgianni against The Queen (1985), 156 CLR 473, [1985] HCA 29,

Clayton v The Queen (2006), 81 ALJR 439 at 458, [98]

Privy Council in Chan Wing Siu v The Queen.

HIGH COURT AUSTRALIA, Miller v The Queen, http://eresources.hcourt.gov.au/downloadPdf/2016/HCA/30>. Accessed 6 April 2017.

Section 156 of the NT Criminal Code

Section 157 of the NT Criminal Code

NT Criminal Code-section 158

NT Criminal Code-section 159

Section 160 of the NT Criminal Code

NT Criminal Code-section 161

Ny courts, Accessorial Liability, http://www.nycourts.gov/judges/cji/1–General/CJI2d.Accessorial_Liability.Rev.pdf>. Accessed 6 April 2017.