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Doing Without Complicity Doing without complicity Article (Published Version) Sullivan, G R (2012) Doing without complicity. Journal of Commonwealth Criminal Law (2). pp. 199-231. ISSN 2047-0452 This version is available from Sussex Research Online: http://sro.sussex.ac.uk/id/eprint/46737/ This document is made available in accordance with publisher policies and may differ from the published version or from the version of record. If you wish to cite this item you are advised to consult the publisher’s version. Please see the URL above for details on accessing the published version. Copyright and reuse: Sussex Research Online is a digital repository of the research output of the University. Copyright and all moral rights to the version of the paper presented here belong to the individual author(s) and/or other copyright owners. To the extent reasonable and practicable, the material made available in SRO has been checked for eligibility before being made available. Copies of full text items generally can be reproduced, displayed or performed and given to third parties in any format or medium for personal research or study, educational, or not-for-profit purposes without prior permission or charge, provided that the authors, title and full bibliographic details are credited, a hyperlink and/or URL is given for the original metadata page and the content is not changed in any way. http://sro.sussex.ac.uk JOURNAL OF COMMONWEALTH CRIMINAL LAW EDITOR JAMES RICHARDSON Q.C., LL.B., LL.M., DIP. CRIM. of Gray’s Inn, and the Inner Temple, Barrister EDITORIAL BOARD ANDREW ASHWORTH C.B.E., Q.C., D.C.L., F.B.A. Vinerian Professor of English Law, All Souls College, Oxford WARREN BROOKBANKS LL.B., LL.M., B.D. Professor of Law, Auckland University JONATHAN BURCHELL B.A. LL.B., LL.M., DIP.LEG.STUD., PH.D. Professor of Law and Fellow, University of Cape Town WING-CHEONG CHAN M.A., LL.M. Associate Professor of Law, National University of Singapore KRIS GLEDHILL B.A., LL.M. Senior Lecturer in Law, University of Auckland BERNADETTE MCSHERRY B.A. (HONS), LL.B. (HONS), LL.M., PH.D., GRAD.DIP.PSYCH., FASSA, FAAL Professor of Law, Monash University DAVID PACIOCCO LL.B., B.C.L., LL.D. Justice of the Ontario Court of Justice; formerly Professor of Law, University of Ottawa, Common Law Section ISSN 2047-0452 (Print) ISSN 2047-0460 (Online) CITATION The correct citation for this journal is [2012] J.C.C.L. There are two issues a year, in May and November; pages are numbered sequentially. SUBSCRIPTIONS Individual subscribers Print Digital (U.K. / Overseas) A.C.C.L. Members £15 / £20 Free with membership Single issue Non-members £45 / £50 £35* Annual A.C.C.L. Members £25 / £35 Free with membership subscription Non-members £85 / £95 £65* *Prices exclusive of V.A.T., where applicable Institutional subscribers: annual subscriptions Print Digital Combined Current year £195 £195* £225* £95 p.a. (2 issues) £95* p.a. (2 issues) £105* p.a. (2 issues) Past issues £50 per issue £50 per issue £60 per issue *Prices exclusive of V.A.T., where applicable Digital access for institutional subscribers is available either in PDF format for local storage and distribution; online, by password-protected access; or by I.P. authentication. For further information, please go to www.acclawyers.org/journal, or email [email protected]. PUBLICATION INFORMATION The Journal of Commonwealth Criminal Law is published by the Association of Commonwealth Criminal Lawyers (a Company Limited by Guarantee, registered in England and Wales with number 7419872; Registered office and address for service: 4 Ballfield Road, Godalming, Surrey, GU7 2EZ, United Kingdom). © 2012 Association of Commonwealth Criminal Lawyers and contributors. No part of this publication may be reproduced or transmitted in any form or by any means, or stored in any retrieval system of any nature without prior written permission, except for permitted fair dealing under the Copyright, Designs and Patents Act 1988, or in accordance with the terms of a licence issued by the Copyright Licensing Agency in respect of photocopying and/or reprographic reproduction. Application for permission for other use of copyright material including permission to reproduce extracts in other published works shall be made to the publishers. Full acknowledgement of author, publisher, and source must be given. Typeset by Atli Stannard of J R Editorial Services Ltd. Printed and bound in Great Britain by Wyeth Print Group. The Journal of Commonwealth Criminal law is published by the Association of Commonwealth Criminal Lawyers. The ACCL is a non- profit organisation, promoting common law principles of criminal justice across the Commonwealth. PRESIDENT ANDREW ASHWORTH C.B.E., Q.C. United Kingdom VICE-PRESIDENT THE HON. MICHAEL KIRBY A.C., C.M.G. Australia COUNCIL MEMBERS DR LLOYD GEORGE BARNETT O.J. Jamaica PROFESSOR WARREN BROOKBANKS New Zealand PROFESSOR JONATHAN BURCHELL South Africa THE HON. MRS JUSTICE DOBBS D.B.E. United Kingdom SIDHARTH LUTHRA S.C. India PROFESSOR BERNADETTE MCSHERRY Australia THE HON. JUSTICE DAVID PACIOCCO Canada JAMES RICHARDSON Q.C. United Kingdom GEOFFREY ROBERTSON Q.C. United Kingdom MAYA SIKAND United Kingdom THE HON. MR JUSTICE PETER DAVID HUTSON WILLIAMS Q.C. Barbados INSTITUTIONAL MEMBERS The following professional membership organisations are Institutional Members of the ACCL, lending their support to its work, worldwide. Canadian Council of Criminal Defence Lawyers Conseil Canadien des avocats de la Défense The Criminal Bar Association of England and Wales Criminal Bar Association of New Zealand The Criminal Bar Association of Victoria, Australia The Criminal Lawyers’ Association, Canada Criminal Lawyers’ Association of Western Australia Hong Kong Bar Association The Law Society of Hong Kong New South Wales Criminal Defence Lawyers Association, Australia New Zealand Bar Association FOREWORD The content of this, the fourth issue of this journal fully bears out the value of a cross-jurisdictional approach. The topics covered by our articles, jurisdiction spotlight and case notes will be familiar to practitioners across the Commonwealth - delay, trial by jury, what use, if any, to make of unlawfully obtained evidence or of lawfully, but surreptitiously obtained evidence, accessorial liability, attempts, causation and the dangers inherent in vaguely defined offences, such as war crimes or misconduct in a public office. If there is a theme to this issue, it is that of the courts putting the interests of the state before the interests of justice. Ho Hock Lai (at p.232, post) presents a forceful case that the judiciary in Singapore have been wrong to reject the common law discretion to exclude illegally obtained evidence, on the basis that it is inconsistent with the code of evidence in that jurisdiction. He suggests that this unjustifiably prioritises the desire of the state to maintain law and order above the protection of an individual’s rights. The third and fourth articles by three academics from the University of New South Wales also touch on this theme. Jessie Blackbourn and Nicola McGarrity present a compelling critique (at p.257, post) of the inadmissibility of intercept evidence in the United Kingdom, and compare it to the reverse stance taken by the Australian courts. They argue that the U.K.’s approach has led to the excessive use of executive measures, such as control orders, because prosecutions have become largely untenable, and that this position should not be preferred to the use of safeguarded criminal proceedings. Fergal Davis (at p.283, post) discusses the fate of jury trials in terrorist and gang-related cases in the common law jurisdictions of Ireland and New Zealand, where there are limitations on their use. His article provides an excellent illustration of how legislation designed for one purpose can be misused by state agents for an entirely different purpose. Our opening article, by the distinguished English academic, Professor G.R. (“Bob”) Sullivan, continues a theme that has featured in previous issues: accessorial criminal liability and causation (see the case notes on Gnango (England and Wales) [2011] J.C.C.L. 299, Kho Jabing (Singapore) [2012] J.C.C.L. 174, Mzwempi (South Africa) [2012] J.C.C.L. 180, and Edmonds (New Zealand) [2012] J.C.C.L. 189). This complex issue is discussed through a powerful and compelling argument which calls for the abolition of complicity and the joint enterprise doctrine and an extension of the class of principals to include persons other than the person who actually perpetrates the prohibited wrong. These issues are further considered in the case note on Burns (at p.353, post), in which the High Court of Australia v had to rule on the thorny problem of the liability of a person who supplies unlawful drugs to another who then dies from an overdose of those drugs which he has voluntarily consumed. Among the authorities cited to the court were the leading, but conflicting, English and Scottish decisions. Our jurisdiction spotlight focuses on the Caribbean (at p.308, post). This fascinating piece, written by the former Attorney-General of Trinidad and Tobago, John S. Jeremie S.C., brings into particularly sharp relief the tension between crime control initiatives and respect for the fundamental requirements of due process. In addition, the author reflects on the conundrum as to why it is that so many Commonwealth Caribbean states persist with the Privy Council as their final court of appeal. Decisions such as that in Campbell v. The Queen ([2010] UKPC 26 (and see [2011] J.C.C.L. 151)) and Hamilton (noted at p.335, post) make it all the more remarkable that these states have not long since bought into the case for the Caribbean Court of Justice. Our other case notes cover a broad, but current and important, set of topics.
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