Regulatory & Environment Insights

Complicity: When is a person guilty for the acts of another?

(Batak v R [2024] NSWCCA 66)

Key points

• The common law principles of complicity recognise three ways in which a person (the accused) could be criminally responsible for the acts of another person (the other person).
• Whether the principles of complicity apply to a statutory offence must be determined in light of the terms and nature of that offence.

What is the law of complicity?

Under the common law, there are three ways in which the accused may be criminally responsible for the acts of the other person:

1. Accessorial liability: the accused provided assistance to the other person before, during or after the commission of the offence.
2. Joint criminal enterprise: the accused and the other person were participants in a joint criminal enterprise where the commission of the relevant offence was within the scope of their agreement.
3. Extended joint criminal enterprise: the accused and the other person were participants in a joint criminal enterprise, and the accused foresaw (but did not agree to) the commission of the relevant offence but continued to participate in the joint criminal enterprise.

However, a statutory offence-creating provision can impliedly exclude the operation of the principles of complicity.

When can a statutory offence exclude the principles of complicity?

In Batak v R [2024] NSWCCA 66, the NSW Court of Criminal Appeal considered whether s 18(1)(a) of the Crimes Act 1900 excluded liability as an accessory before the fact. That provision deems an act or omission causing death to constitute murder if the act or omission was done with reckless indifference to human life or with intent to inflict grievous bodily harm, which is known as 'constructive murder'.

Cem Batak had supplied a loaded gun and a high visibility shirt to Cengiz Coskun for the purposes of a home invasion. During that home invasion by Mr Coskun and an unidentified individual, gunshots killed one of the residents. Mr Batak was convicted of constructive murder as an accessory before the fact.

On appeal, the Court held that s 18(1)(a) impliedly excluded the possibility of liability as an accessory before the fact: at [193]. An element of accessorial liability is that the accessory knew all the essential facts which made what was done a crime: at [183]. One of the essential facts for constructive murder was that an act or omission occurred causing death. The Court held that the 'very point' of constructive murder is that there is no need to establish intent or recklessness as to causing death or grievous bodily harm. Accordingly, the Court found that the requirement for foresight of the act causing death on the part of the accessory before the fact was inconsistent with the notion of constructive murder.

Implications for prosecutors

Prosecutors should be aware that a statutory offence may impliedly exclude the operation of the common law principles of complicity. Whether an offence provision has that effect must be determined in accordance with the ordinary principles of statutory interpretation. One consideration is whether the elements of the statutory offence are inconsistent with the principles of complicity.

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Emma Moss, A/Director

Email: emma.moss@cso.nsw.gov.au

Phone: 02 9474 9108

Katrina Frearson, Senior Solicitor

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Phone: 02 9474 9558

Alice Zhou, Solicitor

Email: alice.zhou@cso.nsw.gov.au

Phone: 02 9474 9959

The CSO's Regulatory & Environment practice group specialises in advising and representing agencies in relation to regulatory compliance and prosecutions, statutory interpretation advice in the environment and natural resources context, as well as criminal law, evidence and procedure.