Complicity and injustices – lessons from cases on First Nations youth and Autism
Professor Felicity Gerry QC1
1Crockett Chambers and Deakin University, Australia
The law on complicity is an old problem which continues to give rise to significant injustices, particularly in cases of murder. Young people in particular are being convicted with little or no meaningful connection with a crime. In the NT, for example, in minor offending there is a presumption of participation which probably contributes to large numbers of Aboriginal children in custody. It is not known how many of those children have features such as an autistic spectrum disorder (ASD) which is relevant to criminal responsibility. The approach of the Court of Appeal in the Alex Henry appeal in England and Wales was to reject a diagnosis of autism. The effect ASDs can have in complicity cases more generally was therefore not considered by the Court. The liability of a secondary party is properly described as derivative: it derives from and is dependent upon the liability of the principal offender. Aside from felony murder and extensions of liability, traditionally it is necessary to prove that the alleged secondary party knew the essential facts and did acts which demonstrate an intention to commit the crime or an intention to assist or encourage that crime and that the events were within the defendant’s contemplation (not too remote). ASDs can be relevant to knowledge, intention and contemplation as well as understanding conduct. This paper discusses how an understanding of the functioning of law and the functioning of the individual could make a difference in the verdict.
Professor Felicity Gerry QC (presenting author) is admitted at the International Criminal Court in The Hague, to the Bar of England & Wales and in Victoria. She is an expert in cases on complicity law. She is Professor of Legal Practice at Deakin University and an Honorary Professor at Salford University. She led the appeal in R v Jogee and the successful mercy petition for Zak Grieve known as ‘the man who wasn’t there’. She is widely published on vulnerability in justice systems. This paper is based on her research on autism with Professsor Andrew Rowland and Dr Clare Allely.