The Liability of Accessories under Statute, in Equity, and in Criminal Law: Some Common Problems and (Perhaps) Common Solutions

Article excerpt

[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

I INTRODUCTION

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 accessories involved in breaches of statutory obligations. …