The laws of complicity are triggered by crimes committed by groups and are highly complex. These laws have been criticized heavily for quite some time now, because of the unbalanced justice they produce, especially in combination with mandatory sentencing. We discuss the Northern Territory case of Zac Grieve below, in which this occurred. Zac Grieve was very much like the offenders on our streets: He identifies as Aboriginal, he was young, and was “hanging with the wrong crowd”. When thinking about the problem of the laws of complicity, I have relied heavily but not solely on the work of my former lecturer, Felicity Gerry QC, who is an expert in vulnerable offenders and in the laws of complicity. I have written about the subject for my master’s degree in law, and much of what follows is derived from that essay. It reports on complicity in criminal law in common-law jurisdictions by focussing on the Petition for Mercy of Zac Grieve, submitted to the Administrator of the Northern Territory. Based on this case, the operation of accessorial liability in common law countries is looked at by examining the history, legislation, and impact of criminal accessorial liability. The paper concludes that, notwithstanding the contemporary developments from Chan Wing-Siu to Jogee, we seem to be hardly a step further than in the 16th-century case of Saunders and Archer, when Petitions of Mercy had to be written to get accessories with life sentences lower sentences. This indicates that there is still a long way to go to make our criminal justice
system equal, balanced, and fair.
In the Grieve case, the facts are as follows: four people, Grieve, Malyschko, Halfpenny and Buttery, planned the killing of a man in 2011. The body was transported to a campsite outside Katherine, where it was found the following day. Halfpenny pleaded guilty to murder and testified that Grieve, Malyschko and Buttery had all physically participated. On this basis, the Crown asked the jury to accept that Grieve was physically involved in the crime. This was despite the evidence of both Grieve and Malyschko that Grieve had not been present but had gone home because he “could not do it”. CCTV footage of his vehicle confirmed this. Grieve was at home asleep when the murder was committed, but he was convicted of murder and sentenced to the mandatory minimum sentence of life imprisonment with a non-parole period of 20 years. This was the heaviest sentence among all those convicted, while he had been the only one of the four to abandon the murder plan.
The Northern Territory legislation describes one form of accessorial liability for minor offences and another for more serious offences. For more serious offences, it requires reasonable steps to withdraw. The question was: did Grieve withdraw from the murder plan sufficiently? The criteria for ‘withdrawal’ and ‘reasonable steps’ are not precise enough. This lack of certainty is a considerable risk to equal justice.
The Commonwealth Criminal Code began its existence with the same terminology as the NT Criminal Code, but was later amended to reflect the position that the common law took until Jogee, (which involved two separate cases; R v Jogee and Ruddock v The Queen), to incorporate extensions of criminal liability. Originally, an accessory at common law was a person who acted intentionally to assist or encourage the offence. Later there was the
development of extensions known in England and Wales as “joint enterprise”, and in Australia as “extended joint common purpose”, whereby a secondary party could be
convicted if they merely foresaw that a principal offender might commit a crime.
S 11.2 of the Criminal Code 1995 (Cth) combines complicity and common purpose into one section, thereby restricting the reach of common purpose. Even with the later insertion of s 11.2A “Joint Commission”, provisions remain restricted because of the definition of ‘recklessness’. In addition, just as in the NT Criminal Code, the treatmentof ‘withdrawal’ is not precise enough.67
It was the case of Chan Wing-Siu68 that in 1985 considerably widened the application of the law of joint enterprise liability. Jogee, in 2017, reset the doctrine back to pre-Chan Wing-Siu and the latter was widely considered a mistake. While later cases still followed
Chan Wing-Siu, the Criminal Code became infected by these mistakes; errors were made for reasons of policies in the context of gang violence and other types of group violence, which in turn made young and black people more vulnerable under these laws.
In 2006, in the case of Clayton, this development was criticised strongly by a dissenting Michael Kirby in the High Court of Australia and later arose again in 2016
in the case of Miller, where a low test was applied despite Jogee. Kirby J was a single voice between Clayton and Jogee, dissenting against the attitude of the courts regarding the fault element of accessorial liability. Stephen Odgers SC has also spoken out in Australia numerous times about extensions to accessorial liability by foreseeability. He finds that one of the most regressive High Court judgements as in the case of McAuliffe, which followed from Clayton, and was maintained in Miller.
These decisions significantly increased the risks of over-criminalization. There is no research into how the DPP across the States of Australia are exercising their decisions to prosecute.
It is sufficient to state here that the current laws put the public and offenders at risk; they are laws that the public (and, therefore, juries) can neither understand nor agree with.
There is still a long way to go to make our criminal justice system balanced and fair, on the Territory level and on the Commonwealth level. The question is on which level the change should begin.
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