Queensland Police have charged a second man with murder in relation to the death of a Gold Coast mother.

The badly burnt body of Ms Kelly Wilkinson was found in the backyard of her Arundel home on Wednesday 19 July.

The police allege that the 25 year old man, Bradley Bell, assisted and drove Ms Wilkinson's ex-partner, Brian Johnston, to his home before the murder.

The police further allege that Mr Bell obtained a jerrycan from a nearby petrol station.

Police will allege that Mr Bell knew about what Mr Johnston was planning.

Aiding and Abetting

A person may be held to be criminally liable in various ways for a crime that is physically committed by another person. The law in all jurisdictions in Australia says that if you assist or help other people to commit a crime then you can be charged with a criminal offence.

This is a very important and complicated area of law. The reason why it is so important is that many people, especially young people, can get themselves pulled into a situation when they are socialising in groups.

This is a serious charge particularly in the case of young offenders caught up in situations, unaware that criminal responsibility can attach to even the most minor conduct such as keeping look out; swapping clothes or "stashing" property.

Almost any form of assistance, however minor, can result in a person being held criminally responsible for the actual offence.

Someone can be charged as a principal, an accessory or someone who encouraged ("aided and abetted") the crime.

Offences in New South Wales:

It is a complicated area of law to understand where a person can be held criminally liable for the physical conduct of another person, who is routinely called 'the principal offender'. As such the offence derives its power from a number of different statutory instruments, though it is underpinned by the common law.

The main piece of legislation in New South Wales which criminalises complicity is The Crimes Act 1900.

The Act provides that

(1) A person who aids, abets, counsels, procures, solicits or incites the commission of an offence under this part is guilty of an offence and is liable to imprisonment for 7 years.

(2) A person who, in New South Wales, aids, abets, counsels or procures the commission of an offence in any place outside New South Wales, being an offence punishable under the provisions of a law in force in that place which corresponds to a provision of this part, is guilty of an offence and is liable to imprisonment for 7 years.

What the Crown Must Prove

In order to convict a person of this offence the Crown must prove beyond a reasonable doubt that the principal offender committed an offence of a particular type and that the accused was an accessory to that crime. The Crown must prove that the accused assisted in the preparations or intentionally encouraged the principal offender. The fault element here is knowledge, recklessness is not enough.

For example, to convict a person of being an accessory the Crown would need to prove each of the following:

  1. that the principal offender committed an offence of say, stealing a car;
  2. the accused intentionally encouraged the principal offender, OR they intentionally set out to assist in stealing the car by keeping a look out;
  3. that stealing the car was what the accused had intended or foresaw the principal offender would do;
  4. the accused knew at the time all the essential facts that made stealing the car a crime; and
  5. the accused neither had a genuine change of mind nor expressly instructed the principal offender not to commit the crime.

In R v Phan [2001] CCA, Wood CJ stated that it must be borne in mind that the liability of the principal offender is primary and it does not depend on the guilt of another. However, the guilt of the principal in the second degree (the aider and abettor) is derivative and depends on the finding of guilt on the principal. This means that if the principal offender is found not guilty then there can be no liability on the aider and abettor.

Point three provides an interesting loophole as the offence must be what the accused had contemplated or expected, or at least remain within the scope of that type of conduct. For example, in stealing the car the principal encounters the owner, panics and stabs him. This could be something materially different to what the accused foresaw or encouraged. Another possibility could be that the accused changed his mind about the offence and communicated this to the principal offender, and did everything reasonably possible to prevent the crime. In this case he cannot be found guilty of the offence.

Interestingly, the Crown can prove an offence by proving that the accused was either a principal or an aider and abettor without actually proving which one he is: R v Stokes and Difford [1990]. This would be relevant where one person commits a robbery and the other drives the getaway car.

Complicity, or aiding and abetting should not be confused with Conspiracy. This is a separate offence which does not require any physical element in order for a person to be convicted. The physical element of conspiracy is the agreement between at least two parties to do an unlawful act; or a lawful act by unlawful means.

Overall, if you have assisted in a crime at the scene you can be charged as a principal offender. If you have assisted in the crime either before or after the fact you can be charged as an accessory. As an accessory you are liable for the same punishment as the principal offender so it is important to know your rights and seek legal advice without delay.

Common Examples of Aid and Abetting

Some common examples of ways that people tend to get involved without fully appreciating the criminality of their conduct include :

Encouragement : If someone shouts or speaks words of encouragement at the scene of the crime then that person can be charged.

Concealment : If someone destroys evidence or hides something, then they can also be charged. For example if someone where to hide clothing or a weapon.

Taking Property: If someone were to steal property and in turn give that property to you so that you could pass it on, sell it or look after it, then you can be charged.

Swapping Clothes: If someone were to swap clothes with an offender before or after they commit a crime then you may be held criminally liable for assisting the offender get away with the crime. This can be applicable even if you are not present at the scene of the crime.

Driving : If someone were to drive to or from the scene of a crime, while knowing what they were doing, also makes them part of that crime.

Lookout: If someone were to act as a lookout then they could be charged with a crime. Acting as a lookout means standing by to keep watch for the police or witnesses.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.