The Liability of Accessories under Statute, in Equity, and in Criminal Law: Some Common Problems and (Perhaps) Common Solutions
Dietrich, Joachim, Melbourne University Law Review
[This article focuses on accessorial liability under statute, in equity and in criminal law. One of its purposes is to identify some of the common problems that have arisen in determining the liability of accessories in different areas of civil law, whilst drawing some comparisons with the criminal law. It will be argued that the problems that need to be addressed in determining accessorial liability are largely similar in the different contexts, even if they are often formulated in superficially different ways. This' article surveys some of the different approaches, though such an overview, of necessity, cannot address (nor attempt to solve) comprehensively all the problems surrounding the liability of accessories' in each of the areas of law that are being considered However, some limited conclusions about possible ways forward will be suggested. Indeed, this article suggests that until the law develops a stable and consistent means of analysis to determine when a person is liable as an accessory to another person's wrongdoing, we cannot begin to resolve the ongoing difficulties relating to accessorial liability. Hence, a further aim of this paper is to attempt to articulate a series of common questions that are applicable to civil accessorial liability in all circumstances, regardless of the area of law within which it arises. Without such a stable means of analysis, it may be difficult to tackle fundamental normative questions, including what the precise scope or limits of accessorial liability ought to be in relation to particular wrongs. Such an attempt is worthwhile, in my view, notwithstanding that the function or goals of accessorial liability will depend on the specific context within which such liability operates.]
CONTENTS I Introduction II Some Preliminary Matters III Common Questions to Be Addressed A What Is the Nature of the Principal Wrong That Has Been Committed? 1 Identifying the Wrong and the Relevant Accessorial Liability Rule 2 The Rationales for the Wrong and the Corresponding Accessorial Liability Rule B What Is the Nature and Degree of Involvement of the Accessory in the Wrong? C What Is the Requisite Knowledge/Intention/State of Mind of the Accessory? D What Causation Requirements Need to Be Satisfied? IV The Accessorial Liability Regimes in Different Legal Categories A Statute: TPA and Corporations Act 1 Involvement 2 Knowledge 3 Causation B Equity 1 Involvement 2 Knowledge 3 Causation C Criminal Law 1 Involvement 2 Knowledge V Comparative Observations in Relation to Each of the Common Questions A The Nature of the Principal Wrong B Nature of Involvement: Causative Connection with PW's Wrong C Knowledge and the Mental Element VI Conclusion
It is not uncommon for different areas of the law to deal with essentially similar problems in disparate ways. Indeed, in an era of increasing legal specialisation, it is easy to remain oblivious to developments and approaches in other areas of the law. The liability of accessories in private law has proved particularly problematic in a number of different legal contexts. It also remains 'under-theorised' (1) in some areas, or replete with overly technical distinctions and complexities in others. In equity, for example, attempting to articulate accurately the relevant rules of accessorial liability for involvement in a breach of trust or fiduciary duty is both difficult and likely to excite controversy. The law is in a state of considerable uncertainty and confusion, 'in danger of becoming a quagmire of conflicting propositions and rationales' (2) (especially if one does not confine oneself to one jurisdiction). Yet the questions that need to be addressed in this context are essentially similar to those that arise in other contexts, such as the civil liability of …
Questia, a part of Gale, Cengage Learning. www.questia.com
Publication information: Article title: The Liability of Accessories under Statute, in Equity, and in Criminal Law: Some Common Problems and (Perhaps) Common Solutions. Contributors: Dietrich, Joachim - Author. Journal title: Melbourne University Law Review. Volume: 34. Issue: 1 Publication date: April 2010. Page number: 106+. © 2008 Melbourne University Law Review. COPYRIGHT 2010 Gale Group.
This material is protected by copyright and, with the exception of fair use, may not be further copied, distributed or transmitted in any form or by any means.