PARTIES OF OFFENCES IN INDONESIAN CRIMINAL LAW A COMPARATIVE STUDY WITH
PARTIES OF OFFENCES IN QUEENSLAND, AUSTRALIA
NIKEN SA VITRI
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319, t;q8001 CflV
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FAKULTAS HUKUM
UNIVERSITAS KATOLIK PARAHYANGAN':, BANDUNG "
AGUSTUS -1999
A COMPARATIVE STUDY WITH
PARTIES OF OFFENCES IN QUEENSLAND, AUSTRALIA
INTRODUCTION
Aristotle (384 - 322 BC) was researching 153 different types of Greek city- state Constitutions, in his book Politic. His comparative analysis of laws shows us that the science of the comparative study has existed for an immense amount of time.
This branch of legal science is very important to a countries which are still developing their own legal system, like Indonesia. That is one of the reasons why comparative law, especially in Criminal Law focusing on Parties of Offences will be discussed in this paper. Another reason is because Australia and Indonesia are geographically close, which influences regulation - in this case Criminal Law - in each country. Because of the modern era, there is always a possibility for an offender in Indonesia to be arrested in Australia or vice versa. So, comparison of the two legal systems is al ways beneficial.
The determination of guilt in offenders always involves a reference to criminal responsibility. This criminal responsibility has a main role in the criminal justice system and cailllot be separated from the system of law of a country. Although there are some similarities in criminal responsibility in Indonesian and Australia in this case Queensland, there are some distinctions as well. These similarities
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and distinction will be an interesting issue which need to be discussed further.
Especially because their amlysis can be useful in predicting outcomes in different
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systems of law. These issues will not be discussed in this paper because of the limited reference and time which I have. But that part will be an interesting issue to be discussed in the later paper when I have an opportunity to do that.
Some minor issues will be mentioned in connection with parties of offences as part of criminal law system in a later chapter.
UNDERSTANDING PARTIES OF OFFENCES IN INDONESIA
1. The Indonesian Criminal Law System
Indonesia was colonized by the Dutch for about three hundreds years. During the colonial tilne, the Dutch Government forced Indonesia to implement a near exact criminal code to their own. In Criminal Law, the law which applied to Indonesian people was the Criminal Act as regulated under the Code number 732, which was put into effect in 1915. After that time, all criminal conduct was regulated according to those Acts. After Indonesia proclaimed its independence, based on section 2, transitional part of the Indonesian Constitution, the Criminal Act still applied, but with some changes. Thereafter, Indonesia enacted laws which made the Criminal Act applicable for all Indonesian people. 11ms, unification was its essential character .
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-Because the Criminal Law in Indonesia was inherited from the Dutch Government, the system which influenced it is Dutch Law or Civil Law. The Civil Law System, including Criminal Law has four sources - Constitution,
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statutes or acts, custom or case law and doctrine.1 Ever since, Criminal Law in Indonesia still relies mostly on statutes. The statutes which have been the main statutes in Indonesian Criminal Law is Indonesian Criminal Code, which is codified and consists of general provision for the implication of all criminal law in Indonesia.
Beside this Code, there are some others Acts which regulate specific kinds of crime in Indonesia. However, for the implication of this Acts, general provision in the Criminal Code has to be used. Exception can be applied, if the acts regulates another differel1t general provision for its special implication.
2. Criminal Division in Indonesian Law System
I ro I' .,
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. , ,Indonesian Law System has influenced by the Civil L'1w. The Civil Law for the Criminal Law in Indonesia differentiates criminal conduct into felonies or crimes (mala in se) and minor offences (lIlalll prohibita). Main ill se involves serious offences i.e offences that involves seriously anti-social 01' immoral conduct. Mala prohibita is prohibited conduct because the statutes so declares. The divisiun above spread outin the Criminal Code, by regulating it in the different chapter of the Code. In the Indonesian Criminal Code, the distinction between felony and minor offence is reflected in the punishment provided.
Beside the division. according to the Criminal Code, there is another distinction of criminal conduct according to the doctrine. Those are the division of conduct between formal offence and material offence. Formal offence is the offence with the formal formulation (in the Code). Examples of this conduct are; theft, provocation and counterfeiting. Material offence is an offence which exist when the result has already happened. Some examples of this offences are murder, manslaughter and grievous bodily harm.
Beside those divisions above, reference will be made to some division of Criminal Law in Indonesia, like here below.
Objective Criminal and Subjective Criminal Law2
Objective Criminal Law (jllS poennle) is all of the regulations which accommodate prohibition and obligation for all people. People who breach the regulations will be punished. Subjective Criminal Law (jus poeniel1di) is all''Qf the regulations which accommodate the government's right to sentence a'person who committed a prohibited act. Subjective Criminal Law will exist with reference to objective criminal law. So, the government's right to punish will 'exist after being stipulated by the objecti ve criminal law. Clearly, the government cannot punish arbitrarily, because their right is limited by the. objective criminaFlaw.
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Material Criminal Law and Formal Criminal Law3
Material criminal law is objective criminal law which is mentioned above, which accommodates regulations on :
• Kinds of conduct which are prohibited;
• Persons who can be punished for criminal responsibility;
• Kinds of punishmenl which can be imposed on persons who commit the conduct which is prohibited.
Formal criminal law or Procedural Law is the regulations which all ow the government to implement the criminal law.
General Criminal Law and Specific Criminal Law
General Criminal Law is criminal law which is implemented generaIly for all of the people. This criminal law is stipulated in the Codified Criminal Act. Specific Criminal Law is criminal law which is implemented specificaIly for a group or groups of people, e.g. Army members or that which is assigned for particular forms of conduct such as economic crime, subversion, corruption and drug abuse. This specific criminal law is stipulated in acts other that Codified Criminal Act. In this specific criminal law, judges can sentence in accordance with the alternative-cumulative system of punishment.
3. Parties of Offences
Parties of Offences is stipulated in General Provision in the Indonesian Criminal Code. It applies to all criminal conduct in all criminal statutes except the statutes which regulate otherwise. Nearly all of the criminal statutes have to rely on the General Provision in the Criminal Code, with some exceptions which already have a general provision written into the statute. Parties of offence in the Criminal Code is divided into two sections. Sectioll 55 of the Criminal Code regulates three different kinds of offence such as; a person who gives an order to
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do a criminal conduct, a person who participate in criminal conduct or join principal with another, a person who procures some one else to do a criminal conduct.
The sentences for those kinds of offence are the same as sentences for person who conduct a crime alone.
In another section, section 56 of the Criminal Code, there is a regulation about person who acts as an accomplice to a crime.
Beside the kinds of parties of offences above, there are any other sections which regulate conspiracy and participation in an association who has an aim to commit a crime. But this issue will not be discussed in this paper.
Now I will discuss each of the aforementioned offences.
Ordering to Commit a Crime
In this offence, there are two kinds of person who may be found guilty of an offence, the person who gives an order and the person who receives an order and then commits a crime. A person who gives an order is called indirect agent, because he/she does not do the crime by him/herself. A person who commits a crime on orders, is called material or direct agent.
According to section 55 Criminal Code, an indirect agent is liable the same sentence as the materid or direct agent. However, there are some conditions in section 55(1) of the Criminal Code that must be filled in oreder to find a defendant in this situation guilty: 4
1) she/he has to be unable to be sentenced, because of insanity;
2) by she/he has a mislead element of the conduct;
3) she/he does not have intention as required the statute;
4) she/he conducts thE' crime under compulsion;
5) she/he commits the conduct under a good faith to execute an unlawful order. ,
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In conclusion, person who receives an order to commit a crime cannot liable for his/her conduct. It is because person who receives an order or material or direct agent is only a tool to :ommit a crime.s Because they do not have their own intention to do the cond ucl.
Besides, the above requirements, an order to a material agent does not have to be directly given by the an indirect agent. An order can be given through another person.
loin Principal or Participation
The second kind of parties of offences in Criminal Code is pmticipation or join principal. In this offence, there are always more than one defendant who committed the crime.
To be a join principal, each of the accused do not have to commit a complete crime. But they must share the same intention to finish a crime. They can be a join principal which each satisfies the conduct or when neither of the principal, commits all of the element of the conduct.
Intention or mens rea element and common purpose will be an important requirement. The intention of each of the join principals in the commision of an offence must be the same. For example, if one join principal intends to commit homicide and the other only intends to commit assault and or grievous bodily harm, the cr;me cannot be classified as one of join principal or participation.
Hoge Raad6 has held that to be a join principal it is required that each of the accused has the same intention and common purpose of the conduct. 7 For example in a case of join principals, one of the offender intend to kill the victim with the knife, the other offenders have to have the same intention, that is to kill the victim. Not only attack the victim but also kill the victim.
The above issues has not been followed by Indonesi.\111 JurisRrudence in the
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Cassation Judgment which held that the requirement of samejntention is not
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'Hoge Raad, 14-2-1916, N.J., 1916, p. 681, W.9958.
6 HopI": Rn~n Q.?lQI4 N 1 n fi4R W Q,;?n nnrll·rnup Rnnrl O.h.IO')' t-..I rill,)" .... 7Q" U/I1,11:"7
necessary in a join principals.s So, in the judgment, each offender in a join principals can have a different intention. It is enough that all of the accused satisfy all of the conduct element's requirement. All that is needed to be a join principal is complete cooperation between or among the accused.9
To distinguish between a person who is a join principal and someone who gives aid for another person to do a crime, there are two theories used: objective theory
and subjective theory.1li ",
According to objective theory, whether the accused is a join principal or an aider, depends on the nature of the person's conduct. If the conduct objectively can cause the crime which requires, so the person categorized as a join principal.
While in relation to subjective theory, whether there is a join principal depends on the purpose of the accused. A join principal will have their own intentions and these intentions do not depend on another person's aims. It will defer from the person who procures other person to commit a crime. conduct or aim T le procurer will depend their intention to the principal's conduct. If the principal does not commit the crime, there is no procurement.
Procurement
The definition of procurement a¢.cording to the Criminal Code is : an intention to motivate or activate other person who can responsible for their conduct, with the ways which were determined by the code.
By this doctrine, the procurer is called the intellectual principal. And the procuree is called provocateur agent.
There are some dissimilarities between procurement and order, such as :
(1) a person who receiv·"s an order has to be a person who cannot legally be responsible, Person who receives a procurement has to be liable for their conduct.
7 Lamintang, Principles of Criminal Law, p. 594.
826.6·1971, No. 151K1Kr.l1970.
, Lamintang, op. Cit., p. 595.
10 TI.!.J _. t:'nn
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(2) the ways an order is given is not determined by the code, but the code gives limitation on the method or manner which a person gives procurement to others.
The sentence for the intellectual principal in procurement can be the same as the provocateur agent. But, even though the intellectual principal can be liable for the consequences of L1e conduct, he/she can not liable for provocateur agent's conduct which has exceeded directions.ll
There are two objective requirements for the existence of the procurement:
(1) the conduct whicl' has been procured has to be a result from on a complete criminal conduct or a:1 attempt;
(2) that the conduct which has committed was resulted by the procurement, with the method which were determined by the code.
Furthermore, Criminal Code has limited the method which the procurement has been given:
(1) by giving commission or wages;
(2) by an agreement;
(3) by abusing the power or high position;
(4) by using force or threat;
(5) by misleading people to commit a crime.
The use of ,force or threat in this case must not make the provocateur agent cannot be responsible for their conduct because of commit a crime under compulsion.
Aiding or Abetting
The fourth kind of parties of offences is aiding or abetting, which has mentioned in article 56 Criminal Code. This kind of offence is a dependent conduct. It means that whether the person who gives aid to others to commit a crime can be liable, depends on the principal who receive the aid. If the principal who receives the
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aid has committed the criminal conductt the person who gives the aid can
be
sentenced.
There are two kinds of aiding:
(1) giving an aid at the time the principal commits the crime;
(2) giving aid before the principal commits the criIT'e.
All of the kinds of aiding has to be given with intention. There are two requirements before a conduct categorized as an aid. They are objective requirement and subjcctive requirement. Objective rClluircmcnt, requires person to do a conduct which act~ally supports or aid the criminal conduct. If, for
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example, the principal did not use a tool that a person has given to do a criminal conduct, the person cannot be liable for aiding,
Subjective requirement requires a person who gives an aid to do aiding with intention, specifically intention to do a criminal conduct.
Sentence for aiding is not the same as the principaL The maximum penalty for the principal will deducted by one third for person who gives the aid, For example, if the penalty is death or a life sentence, they will be sentenced for the maximum 15 years,
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saPARTIES OF OFFENCES IN QUEENSLAND-AUSTRALIA
1. System and Division of Criminal Law in Australia
Criminal Law is a branch of public law, the law which is concerned with the relationship of members of the community and the state. The most important thing which distinguishes the system of Criminal Law in Queensland from other systems of law - such as Contract Law - is that the law, in the main, has a statutory basis. This contrasts fundamentally with the situation prevailing in the criminal law of Eng'.and, New South Wales, Victoria and South Australia, where the common law is still an important source of the primary source of the law rather that the legislation of parliament,12 In Queensland, any criminal dispute must be solved by the statute, although case precedent can be used at sometimes as well.
Unlike Indonesian criminal law which is divided into two main parts, substantive criminal law and procedural criminal law, the Queensland criminal code does not recognize that division. Regulation of criminal law procedure is integrated in the statutes or acts. The only division which is regulated specifically is the division or classification of offences such as Crimes, Misdemeanors, Indictable Offences and Non-indictable offences, which has an influence on the trial process.
b.,PARTIES OF OFFENCES IN QUEENSLAND
Introduction and defi~ition
There may only be one .person involved in committing an offence, and some offences, such as rape or robbery, 'are perhaps more often committed this way. 13 There is no legal rule which limits the number of people who may be charged
12 R G Kenny, An Introduction /0 Criminal Law in Queensland and Wes/el'l1 Alls/ralia, 4th Edition, Butterworths, 1997, p. I.
1 1 . . . . . ... • • " ' ' ' ? " ' O f " 1 •. 1 ' '1"101"1 •• "4'"1
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with any offence, and very often there will be more than one person involved (in a robbery or burglary, fc.r example).
In Queensland where more than one person is involved in the commission of any
offence, criminal responsibility may be determined in related with ss 7, 8 and 9 of the Criminal Code of Queensland.14
Responsibility for a criminal offence extends beyond the person who commit the crime to covers others who,"'in one way or another, assist tha,t person,'ls
In Queensland, the offender who has perpetrated the offence is known as a principal and in certain case may be more that one principal as persons jointly commit an offence.16 A person who is present at the commissi.on of the crime, aiding, counseling or procuring the principal is k'lown as a principal in the second degree or the accomplice or the secondary party. The secondary party is liable to be tried and punished for the offence in the same way as the principaJ.17 The liability for the secondary party is the same either for doing felonies or misdemeanors. In a fdony, a person who was present when the principal commits a crime (either aiding or abetting) is known as second degree principal.
A person who was absent, but who counseled and procured the principal is known as accessory before the fact.
In misdemeanors, a peraon who present or absent when the principal commits a
crime but participated in either aiding or abetting, is called as accessories.
Penalties or punishment for a person promotes or assists the offence before or during the commission is subject to the same maximum penalties as the principal. For person who participate after the col111nission liable for the offence may be convicted of the separate offence. They usualy are liable for a lesser penalties.
Here below some understanding of the term which will be used in this discussion.
14 R G Kenny, p. 137.
15 Brett, Willer and Williams, Criminal Law Text and Cases. glh Edition, llullcrworths, 1997, p. 464.
16 Dr Georgos Mousourakis, Criminal Law - Parties to Offences, Study Guide, 1'.1.
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Aiding is a term which is used for activity of a person who helps,
supports or
assist the principal. Abetting is an activity of a person who incites, instigates or encourages the principal. Counseling is the advice or encouragement given to the principal before the commission of the offence. Procuring is where a person causes the offence to be committed or where that person's conduct is such that it brings about the commi~;sion of the offence by the principal.
Principal and Secondary Parties
The Criminal Code Acts in Queensland do not employ the term "accessory" in their general complicity provisions, but instead identify all of the participants in an offence as' being either "parties" or a "principal".18 In the above explanation, we know that a principal is a person who perpetrates the crime under s 7 (a) of the Codes. If several people are involved in the same conduct, the principal is the person whose act is the most immediate cause (nelus reus) of the offence.
Whenever two or mor'c person doing the same offence, they can be a join principals which each of them satisfies the offence. Or they can be a join principals while neither of them commits all the elements of the offence. Beside that, there will be a join prindpa,ls where each party, with the relevant mens ren, commits some part of the actus reus and together all their acts meets all the actus reus elements of the offence.
The secondary parties (sometimes referred to as the accessory) has been stipulated under s 7 (b) and (c) of the Codes. Sections 7 (b) and ( c) operate to make the aider or counselor liable in a derivative manner -that is, liable for the offence actually perpetrated by another.19 Section 7 is applicable in circumstances when an offence is committed. In the case that the perpetrator, is not brought to
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trial at all, the aider 01' counselor could not be liable.20 This reflects in Miller 21 ,
18 Peter Gillies, The Law v/Criiiiinal Complicity, The Law Book Company Limited, 1980, p. 43.
19 R G Kenny, p. 138,
20 Ibid.
21 r 1 QR011? AI R 1? I
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but now has been swept away with the result that one conspirator can now be guilty regardless of the guilt of his co-conspirator.
That rule had no application to s 7 in any event and, therefore, provided there has been the commission of an offence by someone, there can be liability for aiding or counseling of an offence. 22
The s 7 provides that where the accused procures another to commit an offence, the accused is guilty of the offence even if the person who actually committed the acts is not found guilty of the offence.23 In Cogan 2" the principal was convicted for doing rape but then had a complete defence on the grounds of lack of mens rea. However the husband who was found to have aided and abetted the otiLer principal, was stll convicted as a principal in the second degree to the crime of rape.
Under ss 7 and 8, the secondary parties is deemed to have committed the offence by the principal. It means that in Queensland, the principal and the secondary parties cannot be convicted of different offences. In Bnrlolll25 , the accused as a secondary party did not take part in killing the victim, he only requested the victim to go to the gymnasium. The majority of the Court Appeal, quashed Barlow's conviction on the basis that because murder and manslaughter were separate crir_"les, Barlow could only be convicted of murder, along with the principal, or be acquitted.26 However, clause 9 Code Bill 1996 (Qld) proposes enactment of a new s IDA for the Code in Queensland which will have the effect of reversing the decision in Bllrlow. This amendment will support the alternate conviction of manslaughter of a person in Barlow's position.27
The Mens rea element
22 R G Kenny, op. Cit.
23 Ibid, p. 139.
24 [1967] QB 217.
2S (unreported) CA 373 of 1994 (C.A. Qld)
26 RG Kenny, p. 139.
27 Ibid, p. 140.
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The mens rea required of a secondary parties differs from that required of the principal, because it conC2rns the secondary's state of mind not only in relation to his or her own conduct but also in relation to the intentions of the principal.
The secondary parties must, at the time of committing the act of complicity:
(1) intend or know that the conduct will promote or assist the principal's
commission of the actus reus of the offence;
(2) have knowledge that the principal commits or plans to commit the actus reLis with the mens rea (if any) required of the offence.
From the words of s 7 (b) we can see that the secondary parties must have done the act for the pL\l'pose of enabling or aiding the other to commit the offence.28 Furthermore, under s 7( c) the secondary parties must knowingly aid t,le principal. A subjective requirement also applies to counseling or procuring under s 7 (d).29
These mens rea requirements apply to the secondary parties even where the principal's crime is one of the recklessness, negligence or strict liability. But reckless or negligence assistance will not be enough for the secondary parties to liable. It is not necessary that the secondary parties know the precise crime for
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which the aid, counseling or procL\l'ing is given.3D In Ancuta 31 the secondary party drove a terrorist to a hotel, knowing that the latter intended either to shoot persons or to deposit a bomb, but without being certuin of which, the secondary party was held liable for murder caused by the consequential bomb blast.32
Doctrine of Common Purpose
. The scope of accessorial liability under s 7 is extended by the terms of ss 8 and 9 of the Code.33
The extension of criminal responsibility under ss 8 and 9 arises because the provisions rely upon objective criteria. In their operations, s 8 serves to extend the scope of s 7(b)
28 R G Kenny, op. Cit.
29 Ibid.
JO RG Kenny, p. 141.
31 [1991]2 Qd R 413.
32 Rg Kenny, op. Cit.
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and s 7 ( c) in respect of aiding; and s 9 extends the scope of s 7 (d) in relation to counseling. "
Section 8 operates independently to establish a separate basis liability beyond s 7(b) and ( c). Section 8 relates to doctrine of common purposes. In this doctrine, the join principals (II and B) agree to commit a particular crime (the foundation crime) and in the co~rse of committing that crime A commits a further crime (the incidental crime), B will be liable not only for the foundation crime but also for the incidental crime if the further crime committed by A was one that B foresaw as a possible outcome of pursuing the cornman purpose. B will be liable for all offences committed within the scope of the common purpose. The doctrine has the effect of making an secondary parties liable for incidental crimes which he or she did not, and would not have agreed to, participate in.
The same concept of the doctrine applies for an accessory as well.
An accessory bdore the fact bears, as does a principal in the second degree, a criminal liability for the act which was within the contemplation of both himself and tho principal in the first degree as an act which might be done in lhe course of carrying oUl the primary criminal intention - an act contemplated as a possible incident of the originally planned particular venture,35
On the contrary, where the principal deliberately acts beyond the common design and commits a crime that is different in type from that intended, contemplated or foreseen as a possibility, the secondary parties will not be liable as an accessory.
To know whether there is a common purpose in the offender, there are three elements has to be proofed ;36
(1) that there is a common intention to prosecute an unlawful purpose;
(2) that an offence was committed in the prosecution of the common unlawful;
(3) that the offence committed was of such a nature that its commission was the probable consequence of the prosecution of the common unlawful purpose.
33 RG Kenny, p. 145.
l4 Ibid.
3S Ibid.
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In !OJlIls37 the accused joined with two others in planning an armed robbery. The accused drove one the principal offenders near' the victim lived and waited in his vehicle while the other two proceeded to carry out the robbery. The accused knew one of the principal offenders was carrying a pistol and WfiS quick-tempered and violent.
The plan was that when the robbery had been completed the principal offenders would rejoin the accu::ed and would hand over the proceeds to him. However during the robbery there was a struggle, and the victim was shot and killed. The accused was charged as an accessory before the fact to murder.'"
In his judgment in the Court of Criminal Appeal, Street
CJ
has drawn attention to one important practical distinction between the accessory before the act and the accessory at the act. TI-.e common purpose which serves to associate him with the criminality of the others will usually remain fixed as at the moment when the active perpetrators of the crime set off to commit it.39Stephen]. held then that as to that crime, one who, while not actually phYSically present and participating in its commission, nevertheless knows what is contemplated, and both approves of it and in some way encourages it thereby becomes an accessory before the act. His knowledge, coupled with his acrions, involves him in complicity in that crime.
Mode of Execution Immaterial
Section 9 is deeming provision which operates in conjunction with s 7(d). The elements of s 9 are :40
(1) that the accessory counselled the perpetrator to commit an offence;
(2) that an offence was committed by the perpretrator after such counsel;
(3) that the facts which constitute the offence actually committed were a probably consequ.ence of carrying out the counsel.
When all of those element are satisfied, the secondary party is deemed to have committed the offence and it is immaterial whether the offence committed is the same as that counseled or a different. 41
37 [1980]28 ALR 155.
38 Brett, Waller and Williams, Criminal Law Text and Cases, 8'" Edition, Butlerworths, 1997, p. 482.
39 Thi,-l .... Ii 21
For example, where A counsels B to commit a crime against C and B deliberately commits the crime against a different person, A will not liable as an accessory to the crime. But where A counsel B to commit a crime against C and B commits the crime against D accidentally or by mistaking D for C, both A and B will be liable for the crime against D.
Withdrawal
An accessory may escape liability for an offence which he or she has promoted or assisted in by withdrawing from the offence before it is committed by the principal. However, even if successful in withdrawing from the offence before it is committed, an accessory may still be liable for incitement or conspiracy or attempt.
The Queensland Code makes no provision for such timely withdrawal.
Accessories after the fact
A person who assists a criminal after the commission of certain offences is known as an 'accessory after the fact'. The accessory after the fact has not participated in the crime of the principal and so does not attract liability for complicity. In Queensland, the liability of an accessory arises under ss 544 and 545 of the Code.
For the liability of an accessory after the fact to arise, it is necessary for the Crown to establish the. commission of the principal offence. However, it is not necessary that the principa·l offender be convicted or be amenable to justice:!2
For the accessory after the fact, liability only arises if the principal offence has been committed. If the principal offender is acquitted the accessory after the fact cannot be convicted unless there is sufficient evidence tha t the principal offence took place.
40 Dr. Georgos Mousourakis, p.3.
41 RG Kenny, p. 148.
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Regarding the actus reus element, the accessory after the fact must have done an act which assisted or had the potential to assist the principal offender in escaping from the administration of justice.43 In regard to the wens rea element, the accessory after the faet must have knowledge of the princip<ll offence and intend to assist the principal to evade justice.44
If an accessory after the f<let assists the principal for p"rsonal benefit as well as to help the principal evade justice, he or she will be liable for the offence.
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COMPARISON AND CONTRAST BETWEEN THE TWO SYSTEMSAs mentioned in the introduction~ the aim of this paper is to consider some of the similarities and differenc"s between the two systems of criminal law, to assist in the development of the criminal justice system in Indonesia. Because the laws of Queensland and Indonesia are both statutory based, the similarities seem to be
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more easily found in the two systems, especially in respect of parties of offences.
Sources of the Criminal Law
In Indonesia, because of the influence of the Dutch Colonial period, the Criminal Law system is a Civil Law system or European Cc,ntinental System. The Civil Law system, as mentioned above, is mainly based on statute. This means that case precedent docs not playa major role in the Civil Law system.
In contrast, in Queensland, although the Criminal Law system is also based on statute, case precedent still playa major role. This is because of the influence of the Common Law system which is the traditional basis of all Australian (state and federal) criminal law systems.
Nevertheless, tl~e major similarity between the two systems is that the main source of law is statutory. This similarity extends to the regulation on criminal responsibility, especially through parties of offences, of the two jurisdictions.
43 Ibid.
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The Division of Criminal Law
In Indonesia, the division of the criminal conduct - according to the Civil Law - are felonies or crimes and minor offences or misdemeanors. The division's main consequence is seen in the punishment which applies. The statute provides for separate regulation in the punishment of the felony and the misdemeanor. The felony is regulated in chapter two of the Criminal Code while the misdemeanor is regulated in chapter three. Because the felony is the more serious crime, the punishment is usually harsher than that for a misdemeanor.
In Queensland, the criminal conduct is divided according to the seriousness of the conduct into indictable and non indictable offences. The division relates to the determination of tLe court of trial and the procedure of the prosecution.
Division of the Parties of Offences
1 In Indonesia, parties c i offences is divided into two parts and has taken place in
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the two different articles in the Code. It means that Indonesian Criminal Codediffers the one from another. The former one is about secondary parties or accessory and the later is about aiding or abetting.
Indonesian Criminal Code differs those two things because of the seriousness of the conduct. "Being an accessory is considered a more serious crime than aiding, as evidenced by the punishments made available for the two offences. A person who aids a principal in the commision (before or after the fact) of a crime, VI 11 be liable for the same punishment as the principal with reducing two third of the maximum penalty.
The Indonesian Criminal Code divides accessory into three kinds of conduct such as ordering or receiving order conduct, joint principals or participation and procurement.
Parties of offences in Queensland is stipulated in ss 7, 8 and 9 of the Code.
Section 7 describes the definition of the parties which are included as persons
who commit an act, gives aid, joins the principals and counsels or procures anyone to commit the offence.
It means that in Qucen~land, a pcr~on who givc~ [lid will receive the same penalty as person who counsels or joins with principals. With the exception of . the person who participates after the commission. In this situation they may be convicted of a separate offence with lesser penalty.
The Mens Rea element
The Mens rea element become an important issue in Indonesian parties of offences, because it has 1 great influenc on the findmgs of the responsibility of the offender. In all kinds of parties of offences in Indonesian Criminal Code, the intention of the offender i~ always necessary.
In the Indonesian crim'Qal code, joint principals are not required to have the same intentions. If each of the accused has satisfied all of the conduct element's requirement, this is enough to say that there is joint principals or participation.
In regard to aiding, the person who aids or abets has to have knowledge that her or his aid is helping to commit a crime. This is the same case with procurement.
In this kind of parties of offences the procurer cannot be liable for the conduct of the principal who deviates from the instructions given by the procurer.
In all kinds of partie~ of offences, there is no di~cus~ion about common purpose in Indonesia. Even the Criminal Code did not mention common purpose and there is no judgment relating with the issue.
However there is a similarity in the mens rea element in Queensland Crin inal Code. In Queensland, the accessory must have intention that the conduct will assist the principal's commission.
In regard to the doctrine of common purpose, section 8 of the Queensland Code requires liability of an accessory who assist an act which went further. There is an objective test that the offence committed was of such a nature that its commission
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was the probable consequence of the prosecution of the common unlawful purpose.
This doctrine is very significant in connection with responsibility of the offender in parties of offences in committing a crime. Since in current Indonesian Criminal Code there is no section dealing with this issue, it is better to consider it in the Indonesian new criminal code has recently which has been started to arrange.
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BIBLIOGRAPHY
Brett, Willer and Willic:.ms, Criminal Law Text and Cases, 8th edition, Butterworths, 1997.
Cremona, Marise, Criminal Law, Mac Millan Education Limited, London, 1989.
Fokkema, Introduction to Dutch Law for Foreign Lawyers, Kluwer-Deventer, 1978.
Gilles, Petter, The Law of Criminal Complicity, The Law Book Company Limited, 1980.
Kenny, RG, An illtrodllction to Crill/inai Law in QlIeells/and and Western Australia,
4th edition, Butterworths, 1997.
Lamintang, P AF, Dasm-dasar Hu!cum Pidana (Principles of Criminal Law), Citra Aditya Bhakti, 1990,
Mousourakis, Georgos, Criminal Law - Parties to Offences, Study Guide.
Simons, Leerboek I, in Princi pIes of Criminal Law.
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Sastrawinata, Sofyan, Hukum Pidana (Criminal Law), Armico, Bandung, 1995 .
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