This essay has the purpose of making reference to party provisions of the criminal code of (WA). The criminal code of (WA) is to be cited as the code (WA). The case in question is a fictional account of a conspiracy to commit armed robbery that went terribly the wrong way. The facts of the case are as follows. Adam Bruce and Charlie had been arrested for there part in the murder of the we are so cheap liquor store. Adam was the get away driver and Bruce and Charlie supplied the weapons and carried out the robbery. Adam has made following admission, he said he did steal the car, and that he did not think the guns would be loaded, nor did he believe that anyone would be hurt in the process of the robbery and that the gun part of the conspiracy was not his part. This implicates Pete and Bruce though neither of them has admitted shooting the shopkeeper and neither of the two has admitted assaulting one of the customers. Both the customer and the shopkeeper tried to defend the shop in the attack. Both guns went of in the ensuing battle and the shopkeeper was shot dead while the customer suffered grievious bodily harm. This paper will suggest that as no admission was made and nobody can say who shot the owner or inflicted GBH on the customer then as Edwards, Harding and Campbell assert the code (WA) party provisions of s. 7, 8, and 9 will need to be relied on to solve the case as subject to the code s 7 (a) there is no principal offender for the charge of murder.

The offence ended in different outcomes for each of the offenders, Adam withdrew from the crime after dropping the men off at the liquor store, and he drove away and crashed the car. Either Charlie and Bruce shot and killed the shop owner and beat up the customer in the shop, neither of whom admitted it or each blames the other. As to who shot the shop owner and beat up the customer was not established in the facts. It was supposedly not the men’s intention to do this or it may be established on the admission of Adam that the guns used were not supposed to be loaded, and he said the idea was that nobody intended to hurt anybody. Unfortunate as it may seem however in this murder it is likely that the lack of intention is only a mitigating factor as an alternative verdict of manslaughter will be the result when the intention was not an element of the offence.

None of the men did all the elements of the offence of armed robbery. Adam did the driving while Charlie and Bruce did the robbery elements. Edwards Harding and Campbell (1992) stated that in the event that the principle offender subject to the code section 7 (a) can not be found guilty, then criminal responsibility is derived under the sub paragraphs of section 7, however it is presumed for the purpose of this essay that this is also the case where the men involved all had some part in the offence though the outcome was different than the outcome intended. If none of the men can recall who did the shooting and none of them admit to either the shooting or the assault charge it is likely that they can still be convicted as aiders subject to the aiders paragraph or section 7, paragraphs (b) and (c). Subsection (a) of section 7 in the Code (WA) expressly declares that the person who actually performs all the elements of the offence is guilty of the offence. Kenny stated that Section 7 (b) and (c) apply to a person when a offence has been committed “provided someone has committed an offence, here can be liability of aiding or counseling its commission “ (Kenny, p. 144, 1999). “persons encompassed by paras b c d are liable when a punishable act has been done.

As accessories to the offenses the men are as guilty as the person who did all the element of the offence individually, and Kenny notes that in that case the accessory is subject to the same punishment as the principle offender and for the “same crime” (Kenny, p. 145, (1999). Kenny (1999) has stated here that alternative verdicts are also a possibility. That, would say Kenny (1999), includes a determination of the level of involvement of the each aider. Kenny cited the case of Nicolakis, Nicoloakis and Franich (1988) were the vibe of the case was that when a murder has taken place different verdicts may be entered as was the case, the perpetrator received a guilty verdict of murder where as the aider was found guilty of the lesser offence of manslaughter. Kenny states that in this situation the aider in the offence needs to “knowingly aid the perpetrator…the precise details in not essential knowledge for aiding… and it is not necessary that the accessory desired or intended that the crime of the perpetrator be committed”. (Kenny, p. 147- 146, 1999)

These matters of law have application to Adam, Charlie and Bruce. As aiders there is the need to look at the deeming provisions for of the Code (WA) Section 8(a). Kenny states that there are three elements of section eight. They are all related to the common intention. The first element is “proof of a common intention to prosecute an unlawful purpose”(Kenny, p. 153, 1999), the second is the actual commission of the act in pursuit of the “common unlawful intention”(Kenny p. 153, 1999), and finally the outcome of the acts needs to be the “probable consequence of the prosecution of the common unlawful purpose”(Kenny, p. 153, 1999). In summing it up the three elements is proof of the common intention, putting the plan into place, and the outcome needs to be the probable consequence of the plan.

There is proof of the common intention in the facts. Adam admits to stealing the car. Adam stated that he did not believe the guns were loaded and that was not his part in the plan even though he said nobody was intended to be hurt. The other two men Charley and Bruce, have admitted that they both did the robbery though they do not admit to shooting the other person though they do admit that only the other or the two of them did the shooting. Neither of them admitted to assaulting the shop assistant. Clearly the case is that the men intended on robbing the liquor shop. The other acts that occurred are incidental to the plan to rob the shop and therefore the liability of those acts is likely to fall on all three of the men, as they were an extension of the common intention to rob the store. The less serious charge of murder is the important issue here though from the facts it is important to remember that it is likely that there is no real intention to actually use the weapons and it is more likely, that Bruce and Charlie used the Guns for effect to help the robbery run smother. As Adam said in the facts nobody was supposed to get hurt.

The real issue is that the inconsistency in the statement of Adam and the admissions made may be enough to conclude that there is proof of a common intention to commit the act of Robbery whilst armed subject to the code (WA) section 393. In a jury trial the circumstances surrounding the formation of the plan need to be put to the jury as a matter of fact. Evidence of the level of involvement and the degree of knowledge would be a relevant. For example Adam did say that he did not know that the guns were loaded which may work in his favor however it was also said that he left that part of the plan to the other men, and they surely did know that the guns were loaded, this may be a tough issue for the jury to decide however it would only possibly effect Adam. More important is the second element the actual commission of the offence.

Adam took the car unlawfully and admitted to his part as the driver in the offence, the other two men have admitted that they did the robbery. Subject to the code WA (s) 7 (b) that would be enough as aiders who jointly commit the offence that constitutes robbery whilst armed though the issue of Adams withdrawal while important will be dealt with at a latter stage. The other offences that the men are charged with are murder of the shop owner and Assault causing grievous bodily harm. Kenny cites Brennan [1936] were the issue of an accessory being liable for the crime of Murder or Manslaughter depends upon the extent that an assault that took place in fact. In the case of Charlie, Bruce and Adam the death of the shop owner, and if it could have been foreseen to have happened as a result of the common purpose of the plan would be established if the prosecution proved that the men had intended on using the guns to force the liquor store owner to hand over money which is an assault.

Kenny states that Manslaughter will be established under the code (WA) section 7 if the plan involved an assault of any kind. In Philips and Lawrence (1967) Hart J’s obiter dictum stated at 284 “ Where the common purpose is robbery and the offence committed murder, because the murder can be committed in the prosecution of the purpose and be the probable consequence of its prosecution”(cited in Kenny, p. 154 1999) gives a good interpretation of how manslaughter can be established were it results from the common purpose of the plan and in the case of Adam, Bruce and Charlie there is evidence that they intended to rob the shop and the murder of the shop keeper took place in fact. The code provision likely to deal with that is the code (WA) section 279 (2) killing by means of an act, likely to endanger human life, done in the prosecution of an unlawful purpose (cited in Kenny, 1999), however the difficulty here is that the actual killer can not be identified in the facts. Aiders to an offence of this nature however can be found liable for an offence to the same extent as the principal offender in the Code s. 7 (a) regardless of the outcome for the principal offender. The offence was committed in the prosecution of armed robbery.

The final element of section 8 (a) “is whether or not the offence was of such a nature that its commission was the probable consequence of the common unlawful purpose”(Kenny, p. 153, 1999) It would suffice to say that the offence of armed robbery pursuant to the code (WA) s 393 might lead to aggravated circumstances such as the actual killing of the shop owner. It may be considered by a jury to be committed in the prosecution of the common unlawful purpose. The test is an objective test, where a reasonable person might foresee the result in fact occurring as consequence of committing armed robbery. It may be infer that the killing of the shop keeper was the result of an act likely to endanger human life, and the jury would have to decide if using a loaded fire arm in a armed robbery would be likely to result in death.

Adams liability as an accessory to the crimes in question needs some reference to the Code (WA) section 8 ss 2. Adam dropped the men off to rob the store but before the offence was completed and the men returned he drove of. Adam stated that this was successful withdrawal of his part in the offence. Adams part in the offence was concerned with driving the other two men to and from the robbery. This means that his participation only ended at the point of dropping the other men off. Subject to the code (WA) s, 8(2) ss (a) Adam did with draw form the prosecution of the unlawful purpose. How ever the code (WA) s 8(2) ss (b) and (c) provide that a person need so communicate his withdrawal to the other parties and that he must take all reasonable steps to prevent the commission of the offence. In Menitti [1975] Justice Thomas did say that “the accessory did not try physically to prevent the other actors from going through with the deal, nor did he provide effective counsel on the matter.”(cited in Kenny, p. 160, 1999). This would apply to Adam in that the jury may decide that Adam did not physically try to prevent the others from robbing the shop, nor did he say to them such. He did try to say that he did not know about a conspiracy which began at Pete’s house though he also said he didn’t know the guns were going to be loaded and the gun part was not his part of the plan. This may make the task of disproving timely withdrawal easy for the prosecution who has the onus to do so (Kenny, 1999) and it may also make it difficult for the accused to have valid evidence that would prove otherwise.

The fact that the actual idea was first formed at Pete's house may not be enough to convict Pete. Kenny (1999) states that it is still possible to be convicted of conspiracy if the offence has actually committed, however the other thee men are not liable to the conspiracy charge. Kenny states that the code (WA) s. 9 deems the secondary offender to have counseled, for the purpose of s 7 (d) (Kenny, p. 152, 1999). The element that is important to relieving Pete of liability is element 3, which Kenny states as “The facts, which constituted the offence actually committed were a probable consequence of carrying out the offence”(Kenny p. 155, 1999). The fact that the offence was carried out would be likely to be incidental though there is no evidence in the facts for the prosecution to establish that a conspiracy even took place.

References.

Kenny, R. G., (1999) An introduction to Criminal Law in Queensland and Western Australia. Australia: Butterworths

Edwards, E.J., Harding, R.W. and Campbell, I G., (1992) the Criminal codes, Commentary and Materials (4^th ED). Sydney: The law book company.

Statutes:

Criminal Code Act Compilation Act 1913

S 7,8,9,393, 273

Cases

Nicolakis, Nicoloakis and Franich (1988)

Philips and Lawrence (1967)

Brennan [1936]

Menitti [1975]