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  • Writer's pictureGeoff Harrison

Accessory Before the Fact

Updated: Jun 4

criminal barrister, criminal solicitor, criminal lawyer, best criminal barrister, best criminal lawyer, best criminal solicitor, accessory before the fact, accessorial liability, murder, constructive murder

Published by Geoff Harrison | 2 June 2024

There is no definition of "accessory before the fact" within the Crimes Act 1900 however, "at common law the term encompasses an individual who incited, moved, procured, aided, counselled, hired, or commanded the principal prior to the commission of the crime, with knowledge that it was to be committed" see: Batak at [34]. The decision of Batak at [51] - [96] sets out the development of liability as an accessory; it also sets out the principles relating to constructive murder at [97] - [133]. The evolution of the liability for an accessory before the fact is an interesting one, as noted by the court in Batak at [51]:

The concept of an accessory before the fact is an ancient one, and the doctrine of accessorial liability is one of long standing, first glimpsed in Britain under Roman rule. In Russell on Crime1 the author referred to the Roman concept of noxal surrender, which was retained and expanded by English law. The concept was that where the crime involved the death of a man (the male gender only being referred to) not only the perpetrator of a crime was guilty but also those inanimate objects associated with its commission. Thus a cart or piece of timber or other object tainted with guilt for the killing was handed over to the monarch to be dealt with under the sovereign’s direction. In Russell on Crime this rule was said to be the origin of principles of accessorial liability (at p 19):

“In this ancient institution there can be detected the elemental origins of the different canons of criminal liability which emerged in later centuries. ... this helped to form the ancient doctrine, which was that a harm must be paid for by any man who had actually taken part in the chain of events which could be traced back from it”.

The case of Batak was a constructive murder case based upon accessorial liability. The foundational crime being that the accused was an accessory before the fact for an attempted robbery with a dangerous weapon (s97(2) Crimes Act 1900). The case against the accused was that he had provided the firearm and a reflective vest to a Cengiz Coskun in order for him and a co-accused to commit the attempted robbery. During the robbery, a number of shots were fired, and the victim, John Odisho, was shot dead. Hence, the accused was an accessory before the fact of the attempted robbery as the accused had intentionally assisted with knowledge of the acts constituting the offence of attempted robbery. However, the Crown attempted to argue a pathway to murder, that the accused was equally guilty of the murder by way of constructive murder; in that the accused was an accessory before the fact and further that he was aware of the possibility that the firearm may be used in the commission of the offence. The accused was found guilty of murder.

The defence on appeal argued, "for liability for constructive murder to arise under s 18(1)(a), the act causing death must be done by either the accused or an accomplice who was present and part of a joint criminal enterprise to commit the foundational offence. If that construction of s 18(1)(a) is correct, the applicant – who neither discharged the fatal shot nor was present at the scene of the shooting as an accomplice – cannot be liable for constructive murder. He contends that nothing in the law of accessorial liability changes that statutory reality" [45].

The court ultimately found that the principles of accessorial liability are inconsistent with a case of constructive murder and could not be relied upon. Accessorial liability requires the accessory's participation and intention for the acts that constitute the offence to be carried out. Conversely, constructive murder does not require an intention or knowledge of the act or omission causing death; only that death is occasioned during the commission or attempted commission of an offence that is punishable by imprisonment for life or for 25 years.

As concluded in Batak at [183]:

In sum, a charge of constructive murder under s 18(1)(a) of the Act involves proof not only of the foundational offence but of a distinct element of there being an act or omission causing death. To make out liability against a person based on being an accessory before the fact, consistently with the principles articulated in Giorgianni, it would be necessary for the prosecution to show that the accessory knew all the essential facts which made what was done a crime, and then intentionally aided, abetted, counselled or procured the acts of the principal. One of the essential facts for constructive murder – that is, one of the elements of the offence – is that an act or omission occurs causing death. Giorgianni would thus require knowledge in the accessory before the fact of an intent do so such an act. Yet if there was such a plan it would fall within the first category of murder under s 18(1)(a). The very point of constructive murder is that there is no need to establish intent or recklessness as to causing death or grievous bodily harm. To require foresight of the act causing death is inconsistent with the notion of constructive murder. That being so, liability as an accessory before the fact cannot work together coherently with liability for constructive murder. It is a case where “the application of sections dealing with aiding and abetting [are] excluded by the nature of the substantive offence or the general tenor or policy of the provisions by which it is created” (quoting Mallan v Lee at 216; see also Giorgianni at 491). That basis of criminal complicitly implicitly is thus excluded by the section.

In this case, the court did not follow the decision of R v Sharah (1992) 30 NSWLR 292 regarding the elements of constructive murder and further held that the Crown could not rely upon an accessorial pathway to constructive murder. The court found that the pathway for murder in this case was one of joint criminal enterprise. A new trial was ordered.

Other Sources:


Extracted Legislation:

CRIMES ACT 1900 - SECT 346

Accessories before the fact--how tried and punished

Every accessory before the fact to a serious indictable offence may be indicted, convicted, and sentenced, either before or after the trial of the principal offender, or together with the principal offender, or indicted, convicted, and sentenced, as a principal in the offence, and shall be liable in either case to the same punishment to which the person would have been liable had the person been the principal offender, whether the principal offender has been tried or not, or is amenable to justice or not.

CRIMES ACT 1900 - S4



"Serious indictable offence" means an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more.


Murder and manslaughter defined


(a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years.

(b) Every other punishable homicide shall be taken to be manslaughter.


(a) No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section.

(b) No punishment or forfeiture shall be incurred by any person who kills another by misfortune only.

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