Introduction:
This assignment will attempt to analyse lesser criminal liabilities leading up to stronger criminal liabilities for all parties involved in a possible conviction of murder by focussing on the major themes of contending and procuring, aiding and abetting, accessory liability, unlawful killing, grievous bodily harm (death resulting) and causation.
Joint Criminal Liability between Andy, Matthew & Jimmy
Are both Andy and Matthew equally principal offenders for the purpose of distinguishing criminal liability?
Criminal liability
A person who commits the acts which form whole or part of the actus reus of the crime is known as a ‘principal in the first degree”: Osland v R (1998) [1]
It can be derived from the facts that both Andy and Matthew were present at the scene to carry out a joint criminal enterprise: Tangye (1997) [2] as there was an express agreement: Tangye (1997) [3]made between the two to seize the managers of large supermarkets in their homes and force them to return to their supermarkets and open the safes. On the facts it cannot be established that derivative liability exists between the two or any failure to agree to such actions is present: Osland v R (1998) [4]rather an “acting in concert” which may create the effect of equally placing responsibility on each individual for the acts of the other: R v Lowery and King (No.2) (1972) [5]
Both Andy and Matthew may be charged with Conspiracy under S.321 to commit and offence does this extend to Jimmy?
Conspiracy
Andy puts his plans to Mathew who agrees to take part in the robberies, for a percentage of the proceeds under S.321 of the crimes Act 1958 this agreement made between Andy and Matthew resulted in the involvement and commission of the offence hence may lead to a finding of guilt in conspiracy to commit that offence. Does this apply to Jimmy’s level of involvement?
Actus Reus
Conspiracy has been defined as an agreement to do an unlawful act or a lawful act by unlawful means”:R V Jones (1832) [6] there is clearly no question of dispute that both Andy and Mathew decided that the best way of making quick money was to execute the agreed criminal act. To establish contravention of s.321 it may be inferred that Jimmy’s conduct of providing a “safe house’ intentionally perverted the course of Justice or intended to pervert the administration of public justice: James v. Robinson (1963) [7] hence making Jimi a complicit in the commission of a crime.
Mens Rea
The establishment of both Andy and Matthews’s intentional agreement to contravene s.321 is apparent on the facts posing the question whether a conspiracy charge is as effective as heavier weighed substantive charges available: Hoar v R (1981) [8] Jimmy may be found guilty under the equally applicable test if it is proved that the provision of the ‘safe house’ was a furtherance to the common purpose: R. v. Tripodi (1955) [9] in effect being liable for accessorial liability due to the counselling and procuring involved with Andy and Matthews main offences.
Defences
The scope of mens rea clearly applied to Jimmy is debatable “a conspiracy is proved by evidence of the actual terms of the agreement made or accepted or by evidence from which an agreement to effect common objects or purpose is inferred.”: Gerakiteys v R (1984) [10]. No evidence of actual terms of the agreement provides a clear entry point before the act or common object to the commission of the offence by Jimmy: R v Theophanous (2003) [11]The mere providing of a “safe house’ provides only an inference for a jury to draw upon after the fact of Jimi’s level of participation. In this light the evidence may fall short of establishing a clear level of involvement: R V Darby (1982)[12].
Due to the possible grey area in establishing Jimmy’s intention to pervert the course of justice the possibility of an acquittal under s.321 may result, if the inference of the overt act in itself is not proved beyond reasonable doubt aligning common purpose against other substantive criminal acts: R V Darby (1982) [13].
Both Andy and Matthew may be charged with Burglary does this extend to Aggravated Burglary?
Burglary
Andy and Matthew may be guilty of burglary for breaking into Joe’s home as trespassers with an intention to assault both Joe and Betty.
Actus Reus
As we can see from the facts the actions of both Andy and Matthew in breaking into Joe’s home may substitute the trespassing and home for the purpose of a building. Case?
Mens Rea
On the facts this was actioned knowingly without permission with a firm intent to commit an assault: R v Collins (1972) [14]
Aggravated Burglary
If burglary can be established between Andy and Matthew they may be also be found guilty of aggravated burglary due to the carrying of a firearm at the time and knowingly entering with intent to do so.
Actus Reus
Both Matthew and Andy entered intending to assault Joe carrying loaded pistols at the time of their entry. With no apparent reason on the facts to dispute that Joe was not present in his house, hence an inference may be drawn by the jury not suggesting otherwise: R v Verde (2009) [15]
Mens Rea:
Both Andy and Matthew on the facts intended to threaten to cause injury to a person inside the house if he they were disturbed during the burglary: R v Verde [2009] [16]. They also had the weapon for a purpose connected with the burglary as discussed about albeit for armed robbery: R v Kolb & Adams (2007) [17].
Matthew may also be charged of extortion with threat to kill
Extortion with threat to kill
Furthermore on the above aggravated burglary charge this may be coupled with Matthew’s threat to kill Betty which may contravene S.27A & B regarding extortion with a threat to kill.
Actus Reus
Matthew clearly made a demand of Betty to lie down on the floor and remain silent or he will kill her. Leaving Joe fearing for his life and that of his wife if they did not submit: R v Lawrence (1980) [18]
Mens Rea:
On the facts Matthews’s intention to threaten to kill was an attempt to create fear of the infliction of harm: Ryan v Cuhl (1979) [19].
Is Andy liable for the common law crime of false imprisonment against Betty?
False imprisonment
Andy may be liable for the Criminal offence of false imprisonment due to unlawful restraint and threats to both Joe and Betty.
Actus Reus
As we can see from the facts Andy drags Betty into another room tying her hands and feet with rope and taping her mouth in order for her not to scream. Clearly unlawfully restraining Betty from her liberty to freedom of movement, furthermore confining her into the custody of one room: Ruddock v Taylor (2005) [20]
Mens Rea:
Andy held a clear intention to unlawfully restrain Betty against her will as a consequence of his threats to kill her and Joe if they did not comply: R v Garrett (1988) [21]
Defences
There is little to no likelihood that Andy may raise a defence of lawful justification for his actions upon the facts: Blackstone [22]
Andy’s Liability
Is Andy liable for contravening S.22 & 23 of the Crimes Act 1958 regarding Betty’s unborn child.
Conduct endangering life/Reckless conduct endangering serious injury
Andy may be charged as a result of engaging voluntarily in the conduct of restraining Betty without lawful excuse that may have placed her unborn child in danger of death. S.22 & 23
Actus Reus
It can be clearly established that Betty whimpered that she was 7 months pregnant, however Andy voluntarily and recklessly continued without lawful excuse to assault and restrain causing possible serious injury by way of miscarriage on Betty’s unborn child: R v Crabbe (1985)[23]
Mens Rea
Applying the test in: Ryan v Walker (1966) [24] to the possible death by way of miscarriage to Betty’s unborn child. The Jury may infer that this possibility was contemplated by Andy as a result of his continued restraint and threat to kill. Furthermore evidence of Andy contacting authorities alluded to his realisation and contemplation of danger or serious injury.
Defences:
There may be a minimal defence to debate the intent on Andy’s behalf to place Betty’s unborn in danger by the subsequent contacting of authorities furthermore death did not result, hence the actus reus of the consequence failed to occur: R v NuriI (1990) [25] however a finding on the continuation of Betty’s restraint at the time of the offence may weigh more heavily against Andy’s contemplation: R v Crabbe (1985).[26]. It must also be noted that in R v Hutty (1953) [27]a person is not a being until he or she if fully born in a living state however R v West (1848) [28] negates this and still establishes homicide if a child is born and subsequently dies.
Does Andy’s use of stolen licence plates constitute theft for the purposes of s.72 (1) s.73 (5) & s.73 (12)
Theft
Andy may be charged with theft by the action of stealing or dishonestly appropriating another persons licence plates with the intention of permanently depriving them from the owner.
Actus Reus
Clearly Andy was unauthorised to appropriate or physical take and carry away: The king v James Lapier (1784)[29]. Another person’s tangible property: Oxford v Moss (1979) [30]in this case being licence plates for the commission of the offence.
Mens Rea
It may be inferred that Andy had specific intent to dishonestly deprive s.73(12) the owner of rightful possession of the licence plates for his own right to use: Stein v Henshall (1976)[31] furthermore this can be strengthen by the lack of consent: R v Senese (2004) [32]
Are both Andy and Matthew liable for kidnapping Joe under S.63a
Kidnapping
Andy and Matthew may be liable for demanding Joe to drive to the supermarket to intentionally open the safe for their advantage in return for his release.
Actus Reus
On the facts we can clearly see that Joe’s personal liberty or freedom of choice was removed primarily by way of a threat to kill unless he complies: Wellard v R(1978) [33]. Secondly this was performed by Joe being carried away in the form of a car by Andy and Matthew. Thirdly this was achieved by force without consent. This may be inferred by a Jury as his wife Betty was clearly in an injured state. Fourthly at no point was there any justified lawful excuse: R v D (1984) [34].
Mens Rea
Andy and Matthew both shared intent in agreeing to perform the kidnapping in order to fulfil their common purpose of performing the robbery. Case
Did the actions of Joe opening the safe constitute a criminal offence under s.9AG.
Duress
Joe may not be found guilty of a criminal offence pertaining to the opening of the safe under duress due to a threat to kill Betty.
Actus Reus:
On the facts a threat of immediate death was made towards Betty unless both remained compliant. Joe being clearly overborne by this indirect threat subsequently led his will to be placed under duress, furthermore serious personal violence overbearing his ability to become resistant or no opportunity to restrain lead may lead to a strong justification for his actions of opening the safe: Attorney-General v Whelan (1934) [35]
Mens Rea
Clearly Joe had no intent to perform this criminal offence if he was not under duress, his will was overborne with fear for his life and that of his wife.
Defences
Joe has a strong case in establishing duress: R v Brown (1986). [36] Furthermore a jury may infer that carrying out the conduct was the only reasonable way that the threatened harm could have been avoided. s.9AG. (b)
Are both Andy & Matthew guilty of committing Robbery/Armed Robbery contravening s.75 & s.75A?
Robbery/Armed robbery
Both Andy & Matthew as an accessory may be equally guilty of robbery for stealing the contents of a safe by force through Joe by means of fear with the use of firearms.
Actus Reus
Joe was aware of the theft and subsequently was compelled by force or fear to submit to Andy’s demands to open the supermarket and safe, this prevention by violence or threat establishes robbery under s.75 the use of firearm establishes armed robbery for the purpose of s.75 a (1) enabling the two to have the safe opened and its contents permanently deprived of the owner. It is clear that Joe being the supermarket manager satisfying s.75 a (1) as the applicable person or custodian of the property in this instance: Smith v Desmond (1965)[37]
Mens Rea
It is clear that Andy and Matthew intended to place Joe under duress by the use of a deadly weapon to intimidate Joe to fear for his life and that of his wife. case
Defences
Regardless if Andy believed he had an honest entitlement by way of his intentions of support for the Karen tribe as a claim for defence, it is unnecessary to prove this: R v Langham. (1984) [38] furthermore would not constitute lawful excuse at any rate under the Firearms Act (1996) s.132 (2). Thirdly a claim for military necessity would not apply due to his departure from the SAS and proportionality arguments contravening multiple international humanitarian law conventions regarding legal use of force.[39]
Andy’s Liability over Joe’s serious injuries sustained.
Causing serious injury intentionally
Andy may be charged under s.16 & 17 & s.22 for pistol whipping Joe until he became unconscious.
Actus Reus
It may be established on the facts that Joe clearly suffered no less than serious grievous bodily harm by Andy’s act of pistol whipping to the point of unconsciousness DPP v Smith (1961)[40]. Due to this act being in furtherance of a crime it would constitute without lawful excuse for the purposes of s.16 of the crimes act 1958.
Mens rea
Andy’s intent may be established sufficiently in causing intentionally serious injury through the furtherance of a crime or alternatively through recklessness. Meyers v R (1997) [41] It is possible that recklessness may also be established given the nature of Andy’s training received through the SAS in the continued use of such force being reasonable foreseeable that such a consequence may arise R v Coleman (1990) [42].
Andy may also be liable under s.22 for recklessly engaging in conduct that renders Joe in danger of death with the carrying of a firearm it also may be sufficient to be deemed guilty for grievous bodily harm and breech of s.31a R v Faure (1999)[43]. as a probable consequence he may be deemed just as blameworthy as the conduct of one who does an act intended to kill or to do grievous bodily harm. R v Crabbe (1985) [44]
Is Matthew triable as a principal offender as an abettor for his involvement in the commission of a crime under S.323?
Abettors in indictable offences are triable as principal offenders
Matthew may be charged for assisting Andy at the scenes of the crime furthermore encouraging and procuring by taking appropriate steps towards the commission of the offence under S.323 Crimes act 1958.
Actus Reus
Matthew agreeing to take part in the robberies hence satisfies the preparation arm or to “abet” in agreeing to the commission of the offences Thambiah v R (1966)[45], Secondly clearly he “aided” when he broke into the home acting in concert, hence not derivative to the principal offence also by carrying loaded pistols and when he threatened Betty and Joe performing the subsequent false imprisonment Osland v R (1998) [46]
Thirdly Matthew “counselled” by “keeping nit” and not changing the course of action R V Whitefield (1983) [47] whilst the robbery took place. These actions show the series of steps undertaken in the commission of the offences constituting a breach of s.323.
Mens Rea
Matthew may be found guilty due to the fact that at no time Matthew’s intention knowingly or wilfully changed to the knowledge and acceptance of the pre formed sequence of events R v Bainbridge (1959)[48].
[1] Osland v R (1998) 159 ALR 170
[2] Tangye (1997) 92 a Crim R 545
[3] ibid at 545
[4] Osland v R (1998) 159 ALR 170
[5] R v Lowery and King [No.2] (1972) VR 560
[6] R V Jones (1832) 4 b & Ad 345 at 349
[7] James v. Robinson (1963) 1 CLR 593 at p 618
[8] Hoar v R (1981) 148 CLR 32
[9] R. v. Tripodi (1955) SCR 438
[10] Gerakiteys v R (1984) 153 CLR 317 at 7
[11] R v Theophanous (2003) 141 A Crim R 216.
[12] R V Darby (1982) 40 ALR
[13] R V Darby (1982) 40 ALR 601
[14] R v Collins (1972) 2 All ER
[15] R v Verde (2009) VSCA 16
[16] R v Verde [2009] VSCA 16
[17] R v Kolb (2007) QCA 180 –
[18] R v Lawrence (1980) 32 ALR 72
[19] Ryan v Cuhl (1979) VR 315
[20] Ruddock v Taylor (2005) 222 CLR 612
[21] R v Garrett (1988) 30 SASR 392.
[22] Blackstone, Book 4, Chapter 14
[23] R v Crabbe [1985] 156 CLR 464 469
[24] Ryan v Walker (1966) VR 553
[25] R v NURI (1990) VSCA 7
[26] R v Crabbe [1985] 156 CLR 464 469
[27] R v Hutty (1953) VLR 338 at 339
[28] R v West (1848) 2 Cox cc 500
[29] The king v James Lapier (1784) 168 ER 263 and Wallis v Lane [1964] VR 293
[30] Oxford v Moss (1979) 68 Cr App Rep 183
[31] Stein v. Henshall (976)V.R. 612
[32] R v Senese (2004) VSCA 136SDSD
[33] Wellard v R(1978) 67 Cr App R 364
[34] R v D (1984) 2 all er 449
[35] Attorney-General v Whelan (1934) IR 518 at 526
[36] R v Brown (1986) 43 SASR 33 at 37.
[37] Smith v Desmond (1965) AC 960.
[38] R v Langham. (1984) 36 SASR 48
[39] Article 52 of Additional Protocol to the Geneva Conventions
[40] DPP v Smith 1961 AC 290
[41] Meyers v R [1997] HCA 43; (1997) 147 ALR 440; (1997)
[42] R v Coleman (1990) 19 NSW 467
[43] R v Faure (1999) 2 VR 537
[44] R v Crabbe [1985] HCA 22; (1985) 156 CLR 464 (26 March 1985)
[45] Thambiah v R (1966) AC 37
[46] Osland v R (1998) 197 CLR 316
[47] R V Whitefield (1983) 79 Cr App R 36
[48] R v Bainbridge (1959) 3 ALL ER 200