Common Purpose (NT)
Under NT criminal law, a person may be charged with criminal offences even where they did not commit the physical elements of the offence. This can happen via the doctrine of common purpose or where a person has been an accessory before or after the fact. This article outlines the law on common purpose and accessorial liability in the Northern Territory and outlines how charges laid on this basis may be defended.
Defending charges based on common purpose
Under section 8 of the Criminal Code Act 1983, where two or more people form a common intention to prosecute an unlawful purpose and an offence is committed by one or some of them, each of the others is presumed to have aided or procured the perpetrator unless they prove that they did not foresee the commission of the offence as a consequence of the unlawful purpose.
In practice, the doctrine of common purpose means that a whole group can often be found guilty where only one person has committed the physical acts making up an offence or several offences. For example, where a group of teenagers decides to break into a shop and steal items, but only one person damages the building, enters and steals, all group members could be found guilty of the offences of criminal damage, unlawful entry and stealing as they all formed a common intention to engage in the offending.
However, if one of the teenagers in the above scenario effectively withdraws from the common purpose before any offences have been committed, they are no longer part of the common purpose and cannot be held responsible for any criminal acts that are committed.
If an accused person claims to have effectively withdrawn from a common purpose prior to offences being committed, they have a valid defence. In order for this defence to succeed, they would need to adduce evidence of things they said and did to make it clear to the other group members that they were withdrawing from the agreement and were no longer part of the enterprise.
The court would then assess whether the accused person’s actions or words were sufficient to effectively withdraw from the common purpose and be excused from responsibility for what subsequently occurred.
Extended common purpose
Extended common purpose becomes an issue where a person enters into a common purpose with others but goes beyond the scope of the original agreement and commits a type of offence that was not contemplated by the others.
In this situation, whether or not the other parties to the agreement are liable for the offence committed would depend on whether the offence was a foreseeable result of the original common purpose.
In the above example, if the group of young people broke into the shop and one of them committed an assault, the other members of the group may or may not be held responsible depending on the circumstances in which the assault occurred. The court would also consider evidence of what had been discussed during the original agreement to break into the shop and steal.
McAuliffe v The Queen 1995
In the 1995 decision of McAuliffe v The Queen, three youths decided to go to the park to bash someone. They were armed with a hammer and a stick and two of them were experienced in kickboxing.
At the park, two of the youths attacked a man and beat him with the stick. The other youth then kicked him in the chest, causing him to fall near to the edge of a cliff, which he fell from and died.
A finding of guilt for murder requires the accused to have intended to cause death or serious harm to the victim. The court in McAuliffe directed the jury that it should find each of the young men guilty of murder if satisfied that they had contemplated the intentional infliction of serious harm as a possible incident of their venture.
The court rejected the defence’s argument that the infliction of serious harm would have needed to have been expressly agreed to as part of the common purpose.
Another way that a person can be held criminally responsible for a physical act carried out by another person is by way of joint commission.
Under section 43BGA of the Criminal Code Act, a person has committed an offence if the person and one or more other persons enter into an agreement to commit an offence and an offence is committed in accordance with the agreement or in the course of carrying out the agreement.
A person can also be charged with an offence in the NT based on allegations that they aided or abetted the commission of the offence.
Abetters and accessories
Under section 12, the following persons are deemed to have taken part in an offence and may be charged with the offence:
- Every person who aided another to commit the offence;
- Every person who did or omitted to do something for the purpose of enabling or aiding another person to commit the offence;
- Every person who counselled or procured another to commit the offence.
Under section 13, a person who assists someone who has committed an offence in order to help them to escape prosecution is an accessory after the fact to the offence.
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