Need help with parties to a crime. (1 Viewer)

[S o r - P o r]

Okay, let's say that Person 1 plans to rob a bank and she needs someone to driver her away, she would get Person 2 to assist her through extortion. And on the day of the robbery, Person 2 sits in the car while Person 1 walks into the bank, after a while, Person 2 sees Person 1 running towards the car, and there is the bank guard chasing and shooting at person 1, who turns and kills the bank guard.

Okay, I pretty much understand 'Principal in the first degree' but I'm a bit confused with the other three. Would Person 2 be considered 'Principal in the second degree' or 'Accessory before the act', or perhaps 'Accessory after the act' ?

Apparently, this question was in the trials last year and my teacher is using it in my assignment this year, but he edited it but no the questions, so I'm pretty confused with it.

Thanks. C:

 

[mrsajmon23]

"accessory before the act" would be somebody who assisted in the planning etc, BEFORE the actual crime occurred.

"accessory after the act" is someone who assisted AFTER the actual crime was committed, e.g getaway driver etc.

"principal in the first degree" is whoever committed the crime

"principal in the second degree" is someone who was present during the crime being committed, but did not neccessarily commit the actual crime.

these are the basic meanings, i've got a shitload of legal notes etc somehwere in my room, so i'll look for em and give u more accurate meanings.

 

[S o r - P o r]

Oh okay. It's because I definitely know Person 1 would be classified under 'Principal in the first degree'.

I actually know what they mean but I'm confused on who goes in each cateogry.

That would be great. Thanks. C:

 

[jeff.wong]

Principal in the first degree
This is the person who actually carries out the criminal act.

Principal in second degree
This person assists others in the commission of the crime. The principal in the second degree is present during the actual crime but is not a main participant

Accessory before the fact
This person helps other commit a crime by helping them plan or prepare the criminal act. However, he or she is not present at the time of the time is conducted.

Accessory after the fact
This person helps criminals after they have committed a crime, but is neither present during the crime, nor aware of it beforehand. The law only recognises this offence for serious crime, such as murder and armed robbery.

Back to your case above ^ obviously Person 1 is the Principal in First Degree however the details around Person 2 is vague. I.e.
1] Did person 2 help planning the robbery
2] Did person 2 know person 1's plan before hand
3] Is person 2 just a random in a car unaware of the crime until it is executed

If person 2 planned had been involved in the planning and since he is also at the scene he would be Principal in second degree.

If person 2 planned but was not at the scene then he is accessory before the fact.

If person 2 is unaware of the crime beforehand but knew that it was a crime after it had been committed and yet helped person 1 to get away he would be accessory after the fact.

If person 2 did not know whatever person 1 just did and merely drove person 1 away because he thought person 1 was a normal person who just wanted a life then person 2 is not part of the crime.

 

[S o r - P o r]

Oh okay. So what would person 2 be considered if he just sat in the car?

 

[possessionless]

Oh okay. So what would person 2 be considered if he just sat in the car?

principle in the second degree

 

[bell531]

principle in the second degree

Person 2 was at the crime, helping others to commit the crime. They'd usually get the same or similar sentence.

 

[holofernes]

Oh okay. So what would person 2 be considered if he just sat in the car?

It's not completely straightforward. First you need to be clear as to what crime you're talking about. Is it the armed robbery, or the murder?

If it is the robbery, person 2 is likely to be charged as a principal in the second degree ("aiding & abetting") -- he is physically present, intended to assist in the crime committed by the principal in the first degree, and knew all of the elements (including the intention) of the principal in the first degree.

However what about the murder? It seems hardly fair for you to be charged with complicity in murder if you were persuaded to go along and assist in a robbery where you thought everyone had fake firearms (for example), but one of your fellow criminals brought an actual gun and killed someone.

But what if person 2 knew that person 1 was violent, and carried a firearm and was liable to use it? Consider the case of R v Johns: Johns was a getaway driver. He agreed with Watson that he would drive Watson to King's Cross where he and another guy would depart and rob a fence some way away. Johns knew Watson had a gun and was quick tempered and violent. When Watson got back to the car half an hour later, he said "It's gone bad, it's off." He had killed the fence.

Johns was found guilty of being an accessory before the fact even though the crime was not the crime he had helped procure. This is possible through the doctrine of joint criminal enterprise. It is possible also to use the doctrine of JCE to extend principal liability as a principal in the first degree to all participants in the crime, provided it was known that it might be a possible incident to the crime intended, e.g. robbery gone wrong situation, or causing death while in a joint criminal enterprise to cause grievous bodily harm.

What's the difference? The liability of a principal in the second degree is derivative. It has fewer elements to prove, but if the principal in the first degree is not found guilty, the principal in the second degree must also not be guilty. However JCE can affix all participants with liability in the first degree. One can be found non guilty, and another can be guilty (Osland). Presence at the scene of the crime is also not an element in JCE.

 

[nedcooper]

Please note the post above is incorrect when the person say "if the principal in the first degree is not found guilty, the principal in the second degree must also not be guilty."

The P1 does not have to be guilty for the P1 to be convicted. Only the commision of the principal offence needs to be proven. The P1 may be acquitted on the basis of a defence, or a P1 may never even be found. All that needs to be proven is the commission of the principal offence.

See ratio from cases below:

Where the person charged as the principal offender is acquitted because of insufficient evidence, an accessory may still be convicted if it is proved that the principal offence was committed, and there is no evidentiary inconsistency in the different results. Osland (1998)

Evidence of the conviction of the principal offender, or admissions made by the principal offender, are not admissible as evidence of the commission of the principal offence against the accessory. Kirkby (1998)

It is not necessary that anyone be convicted as the principal offender. Giorgianni (1985)

 

[holofernes]

Sorry -- Yup you're absolutely right; I was incorrect. I guess I was trying to convey the derivative nature of traditional complicity, which is better explained in Osland:

The conviction of a person charged as accessory is not necessarily inconsistent with the acquittal or failure to convict the person charged as the principal offender. That is because the evidence admissible against them concerning the commission of the offence may be different. Even so, an accessory cannot be convicted unless the jury is satisfied that the principal offence was committed. Thus, if two people are tried together as principal and accessory and the evidence as to the commission of the crime is the same against both, acquittal of the person charged as principal is inconsistent with the conviction of the other.
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If I recall correctly the comments in Osland are obiter, not ratio -- in that case the accused was charged with "acting in concert", or in common purpose. Additionally the evidence against the mother differed to that against the son, which was why they were tried separately.

Similarly in Giorgianni, the charge was a "minor indictable offence" for which an aider and abettor is a principal in the first degree: Crimes Act s351, although my memory of this case is pretty hazy.