Culpability of an Offender-Free-Samples-Myassignmenthelp.com

Question: Critically evaluate whether s 323(1)(d) of the Crimes Act 1958 (Vic) or s 8(1) of the Criminal Code Act 1983 (NT) best addresses individual culpability in joint criminal ventures. Answer: Introduction Miller v The Queen[2016] HCA 30 is an important case that seeks to establish the test in which the courts can hold an accused liable to a criminal offence that emerges, because of the commission of another crime, that he was involved in planning and commissioning[1]. In this case, the court denoted that for an accused to be liable for such a crime, then there is a need of proofing the fact that he could foresee the possibility of the occurrence of such a crime, during the commission of the original that they participated in. Note that, the case Miller v The Queen, was brought forth to challenge a precedent that was established in McAuliffe v The Queen (1995) 183 CLR 108[2].This was a landmark case that brought forth the principles of extended criminal liability and the test that it had to pass, in case the courts was to hold another person culpable for the offence committed by the group. According to the decision established in this court, a person should be held responsible for the crimes of his group, if he foresaw the probability of the criminal activity occurring, during the time in which they were involved in planning an original crime. Note that, Miller v the Queen was a case that was brought forth, to challenge this principle. Nevertheless, the Australian High Court refused to set aside the law, in Miller v the Queen, and allowed its practice in the country. Section 323 (1) (d) of the 1958 Crimes Act requires that a prosecutor proves the foreseeability of the probability of the criminal activity happening, if a prosecution under the extended joint criminal activity has to be successful[3]. Nonetheless, the requirement by s 323 (1) (d) of the act to prove the probability of foreseeability is under criticism, due to the fact that it breaches the doctrines of common law, which requires the onus of proof to be that the accused foresaw a possibility of the crime occurring. In fact, section 8 (1) of the 1983 Criminal Code Act denotes that the onus of proof should be a possible foreseeability[4]. Therefore, the argument of this paper is that s 323 (1) (d) is not effective in addressing problems touching on the culpability of an individual in a joint criminal activity. It is the view of this paper, that the 1983 C riminal Code Act provides an effective solution and test that can help to determine the culpability of a suspect. Perceived Dangers of a Joint Criminal Venture Section 323 and section 8 of the 1983 Criminal Code Act focuses on criminal joint ventures. These ventures are very dangerous to the people who are involved in them, because of the liability that they may have in a court of law[5]. For instance, one of the perceived dangers is the occurrence of a secondary crime that was not planned. This is very dangerous to other members of the group, because they may be held liable for the criminal activity, even if, they were not present when the crime occurred. They might be charged as accessories, aiders, etc. to the criminal activity. All that the prosecution needs to proof is the fact that they could foresee the possibility of the secondary crime occurring, when they were engaged in the primary crime. This paper mainly focuses on this perceived danger, when analyzing the effectiveness of section 323 (1) (d) and section 8 (1) of the Criminal Codes Act. Section 323 (1) (d) and Culpability of an Accused Note that, the 1958 Crimes Act, section 323 (1) to section 324 is able to provide and identify the provisions of the notion of complicity. This is are statutory principles that replaces terms such as extended common purpose, counseling, abetting, etc. In fact, there are provisions that are contained in section 324C of the 1958 Crimes Act[6]. Note that, parliament was able to abolish these parts of law, basically because they were not effective and efficient in finding an accused to be culpable to a consequent criminal offence, that has resulted during the commission of another crime. While examining this concept of extended joint common purpose, section 323 (1) (d) of the 1958 Crimes Act provides a clear description on what it is. The section denotes that, the section denotes that, you can hold an accused liable, under the principles of a joint extended common purpose, if the person is able to enter into an agreement, with another person or a group, to commit a criminal activity, and he foresees the probability of another crime occurring, during the commission of the criminal activity that was occurring. On this note, the concept focuses on notion of a probable foreseeability of an offence, during the process of engaging in a planned criminal activity. This notion of a foreseeable probability is controversial, and it is one of the reasons that made this statute to be less effective in finding out whether an individual is culpable of a criminal activity or not. In fact, section 323 (1) (d) has replaced these notions of extended common purpose, with other new methods of ascertaining the liability of an accused, which are based on the principles that govern the commission of secondary offences. This is an aspect that is called derivative liability, and it is found in s 324 of the 1958 Crimes Act, which has been responsible for replacing section 323. Under this principle of derivative liability, the concept of complicity can only be proved; if a secondary crime has been committed. Moreover, the burden of prove still remains with the prosecutor as established in the leading case law of R V Jensen (1980) VR[7]. In this case, the prosecutor should proof that the person who committed the offence actually had the intention of committing the secondary criminal offence, before holding the accused liable. This means that the court should not only concentrate in proving the foreseeability of a criminal event happening, but the prosecutor should proof that the 1 suspect had the intention of committing the secondary criminal activity, during the process of committing a crime they had planned as a group. Moreover, this is a decision that is supported in Johns v the Queen (1980) 143 CLR 108[8]. In this case, the court held that an accessory will have the same responsibility as the primary offender, in case the prosecution is able to proof the fact that he and the primary offender were in contemplation of committing the secondary crime, and it was foreseeable, and the crime was committed out of intention. Moreover, in this case, the court introduces the term contemplation. In the view of the court, this was a possibility that the secondary crime would be committed by the primary offender, since it was foreseen as a possibility: when they were planning to commit the original crime. From this case law and statute, it is possible to assert that the court was criticizing the use of a probable foreseeability as a test for proving complicity. Basing on these facts, it is possible to assert that s 323 (1) (d) of the 1958 Crimes Act is not effective in addressing the culpability of an accuser to an extended common purpose criminal activity[9]. This is basically because it is not aligned to the doctrines that are established under the common law principles, that establishes the test of proof to be on the foreseeable possibility of a crime occurring. Now, the question to ask is whether the 1983 Criminal Code Act is effective in addressing issues touching on the culpability of an accuse to be complicit in a criminal activity. The Criminal Code Act and Culpability of an Offender Section 8 (1) of the criminal code act of 1983 provides a test in which the courts can hold a person liable or culpable for a secondary offence under a crime that is committed by a group. For instance, the section denotes that, if 2 or more people come together, with the common intention of engaging in unlawful activity, and while in the process of engaging in such an activity, a secondary crime occurs, then, each of the people who have engaged in the criminal activity will be held responsible for the offence, unless, they are able to prove the fact that they did not foresee the possibility of the secondary criminal activity occurring. This is a radical change to the provisions contained in s 323 (1) (d) of the 1958 Crimes Act, which recognizes the principles of foreseeable probability and places the onus of proving it to the prosecutor. However, the onus of proving that the accused did not foresee the possibility of the secondary act occurring is on the suspect, this is in accordanc e to the 1983 Criminal Code Act. Section 8 (1) of the Criminal Code Act is supported by a number of common law principles. A good example is Giorgianni v R (1985) 156[10]. In this case, the court was able to establish that an accused can be held liable for the offences of a primary accuser, if he foresaw the possibility of the crime occurring. However, in this case, the court established a test of a possible foreseeability. In the ruling of the court, for an individual to be held culpable for the crime of a primary offender, there is a need of proving the fact that he was aware of all the circumstances that will emerge during the commission of a primary offence, and he was on a sound mind. R v Stokes Difford (1990) is an important case law that provides the importance of examining the mental capability and condition of a secondary offender, during the process of planning the crime[11]. Note that, while examining the mental condition of the secondary offender, he must prove that he had no intention of participating in the principal offence, thus he did not have the essential facts and information about the primary crime that occurred. Basing on these facts, it is possible to assert that by establishing the burden of proof to be on a foreseeable possibility, and putting the onus of proof to a suspect, the Criminal Code Act is very effective and efficient in determining the culpability of a suspect, in a secondary criminal activity. Consistency of Reversing the Onus of Proof One of the most important common law principles on the burden of proof is that the prosecutor should proof beyond reasonable doubt that an accused is guilty of a crime. This is a principle that was first established in Woolmington v DPP[1935] UKHL 1, where the courts ruled that a person is first presumed innocent, until the prosecutor is able to proof beyond reasonable doubt that he is guilty of an offence[12]. On this note, the House of Lords in this case denoted that the presumption of proof to a suspect is an important individual right that cannot be removed from the suspect. Note that, this notion of burden of proof laying on the state, manages to create a relationship between an individual and the state, and the aim is to ensure that an innocent civilian is not jailed. On this note, placing the burden of proof to a suspect is not consistent to the common law principles that are established by Woolmington v DPP, and other similar cases. Nonetheless, in Williamson v Ah[1926] HCA 46, Justice Isaac was able to rule that reversing the burden of proof may be justifiable in certain circumstances[13]. While ruling on this issue, the judge explained that it is a person who comes up with an affirmation of an issue, who should then prove it. Section 8 (1) of the 1983 Criminal Code Act places the burden of proof to a suspect, in regarding proving that he was not able to foresee the possibility of a secondary crime happening. This is an assertion that an accused can make, while defending himself against the accusation of a secondary offence carried out by a group. Thus, as per the principles established in Williamson v Ah, there is a balance between the personal liberty of a suspect and the sovereignty of a state, when such a person is a suspect is allowed to proof his case, in such circumstances. Conclusion Finally, the Criminal Code Act is the best law that is able to determine the culpability of a suspect who have engaged in a joint criminal activity. This is in regard to the occurrence of a secondary crime during the process of carrying out the primary crime. Moreover, the principles established in this case law is supported by a number of common law doctrines that places the burden of proof to a suspect, when it comes to proving the foreseeability of possibilities. It is because of the weaknesses of s 323 of the 1958 Crimes Act, that parliament was able to repel and replace the sections. The sections were replaced in a manner that, to convict an accessory to a secondary crime, there is a need of looking at other factors such as the intention of the primary offender during the commission of the secondary crime, and a foreseeability of possibilities. Bibliography Cases Giorgianni v R (1985) 156 Johns v the Queen (1980) 143 CLR 108 McAuliffe v The Queen (1995) 183 CLR 108 Miller v The Queen[2016] HCA 30 R V Jensen (1980) VR R v Stokes Difford (1990) Williamson v Ah[1926] HCA 46Woolmington v DPP[1935] UKHL 1 Laws Crimes Act s 324Crimes Act 1958 s 323 (1) (d)Criminal Code Act 1983 (8)Criminal Code Act Section 1983 (8) (1) Miller v The Queen [2016] HCA 30 McAuliffe v The Queen (1995) 183 CLR 108 958 Crimes Act section 323 (1) (d) Criminal Code Act Section 1983 (8) (1) Criminal Code Act 1983 (8) Crimes Act s 324 R V Jensen (1980) VR Johns v the Queen (1980) 143 CLR 108 Crimes Act 1958 s 323 (1) (d) Giorgianni v R (1985) 156 R v Stokes Difford (1990) Woolmington v DPP[1935] UKHL 1 Williamson v Ah[1926] HCA 4