High Court of Australia – Criminal Law (N.S.W.) – Accessory before the fact – Liability – Possible consequences of venture planned with principal in first degree – Sentence of accessory – Whether judge may impose sentence of less duration than life – Crimes Act, 1900 (N.S.W.), ss. 19, 346, 442 (1).
The appellant had been convicted of murder and assault with intent to rob. His role was to drive the principal offender, W, to a rendezvous with a third man, D. The appellant was to wait while the other two men robbed a known receiver of stolen jewellery. Afterwards the appellant was to take possession of the proceeds and hide them in return for a share. The appellant knew that W was carrying a pistol, and W told him that he would not stand for any nonsense if he met any obstacle during the robbery. In the event the victim resisted and W shot him dead.
The judge had directed the jury that the appellant and D would be guilty if the act constituting the offence committed was within the contemplation of the parties as an act done in the course of the venture on which they had embarked. It was argued on the appellant’s behalf that while this was an appropriate direction in the case of D, who was present and therefore a principal in the second degree, it was a misdirection in the case of the appellant, who was an accessory before the fact. It was submitted that in his case it was necessary for the jury to conclude that it was a likely or probable consequence of the way in which the crime was to be committed that the gun would be discharged so as to kill the deceased.
Held: The High Court unanimously rejected the argument that any distinction was to be drawn between the liability of a principal in the second degree and an accessory before the fact. There was no reason as a matter of legal principle why such a distinction should be drawn. They also said: ‘The narrow test of criminality proposed by the applicant is plainly unacceptable for the reason that it stakes everything on the probability or improbability of the act, admittedly contemplated, occurring. Suppose a plan made by A, the principal offender, and B, the accessory before the fact, to rob premises, according to which A is to carry out the robbery. It is agreed that A is to carry a revolver and use it to overcome resistance in the unlikely event that the premises are attended, previous surveillance having established that the premises are invariably unattended at the time when the robbery is to be carried out. As it happens, a security officer is in attendance when A enters the premises and is shot by A. It would make nonsense to say that B is not guilty merely because it was an unlikely or improbable contingency that the premises would be attended at the time of the robbery, when we know that B assented to the shooting in the event that occurred.
In the present case there was ample evidence from which the jury could infer that the applicant gave his assent to a criminal enterprise which involved the use, that is the discharge, of a loaded gun, in the event that [the victim] resisted or sought to summon assistance. We need not recapitulate the evidence to which we have already referred. The jury could therefore conclude that the common purpose involved resorting to violence of this kind, should the occasion arise, and that the violence contemplated amounted to grievous bodily harm or homicide.’
Judges:
Mason, Murphy and Wilson JJ
Citations:
(1980) 143 CLR 108, [1980] HCA 3
Links:
Commonwealth, Crime, Criminal Sentencing
Updated: 16 May 2022; Ref: scu.560305
