What happened
In early March 2007 Christopher O'Brien, a 22-year-old man with an intellectual age of approximately 14, was living in a special care residence in Noble Park, Melbourne. After an accusation that he had stolen a bracelet and, separately, suspicion that he had taken a mobile phone from the appellant's home, O'Brien was lured to the house occupied by Dimitrios Likiardopoulos (then aged 47), his sons John (19) and Constantine (17), Hakan Aydin (26), Shalendra Singh and others. Once inside he was subjected to a sustained and brutal beating that lasted approximately two days.
The assaults involved repeated punches to the head and face, kicks to the body, blows with ashtrays, sticks and a hammer, and forced drinking of detergent. The appellant personally administered two "king hits" that dislodged two of O'Brien's teeth, joined in punching and kicking, and gave directions during the ordeal. When O'Brien lost control of his bowels the appellant ordered others to take him to the bathroom, clean him up and bring him back. On his return O'Brien was unable to walk unaided, fell from a chair, convulsed on the floor and died. The appellant then directed the disposal of the body (which was dumped in Dandenong Creek at Bangholme) and the removal of incriminating evidence. Skeletal remains later recovered showed multiple fractures.
Seven people, including the appellant, his two sons, Aydin, Singh, Darren Summers and Antoinette, were charged with murder. The charge against Antoinette was withdrawn. Aydin and Singh ultimately gave evidence for the Crown. The Director of Public Prosecutions accepted guilty pleas to manslaughter from John Likiardopoulos and Aydin, and to accessory after the fact to manslaughter from Singh and Constantine Likiardopoulos. Only the appellant was committed for trial on murder. At his trial in the Supreme Court of Victoria both a principal liability case (joint criminal enterprise to inflict really serious injury) and an alternative accessorial case (that he had directed, encouraged and exhorted the others to commit murder) were left to the jury. He was convicted of murder.
The appellant appealed to the Victorian Court of Appeal, contending that the accessorial case should not have been left because the Crown had accepted that the alleged principals were guilty only of lesser offences. That ground was rejected. Special leave to appeal to the High Court was granted on the single ground that it was an error to leave the accessorial case. The High Court (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) unanimously dismissed the appeal.
Why the court decided this way
The joint judgment of Gummow, Hayne, Crennan, Kiefel and Bell JJ (with which French CJ agreed subject to a reservation on prosecutorial reviewability, and Heydon J wrote separately) began from the uncontroversial proposition that accessorial liability is derivative. However, the court held that this derivative character did not prevent conviction on the accessorial case. The evidence summarised by the Court of Appeal showed that the appellant had been present for significant parts of the two-day beating, had administered forceful blows, and had repeatedly urged the participants to continue or renew their assaults. That evidence was capable of proving both that the appellant intentionally assisted or encouraged the fatal assaults and that the persons so assisted or encouraged had assaulted O'Brien intending to cause him really serious injury, thereby causing death. In short, the evidence was capable of proving that a murder had been committed by those whom the appellant had directed and encouraged.
The court rejected the submission that, "for juristic purposes", there was no murder once the Crown had accepted pleas to lesser offences. It distinguished Surujpaul v The Queen and the discussion in Osland v The Queen on the basis that those authorities concerned inconsistent verdicts returned in a single joint trial. In the present matter the alleged principals had been dealt with in separate proceedings on the basis of different bodies of evidence and different admissions. Their convictions for manslaughter or accessory after the fact to manslaughter were conclusive only as between each of them and the Crown; they were not conclusive against the world. Accordingly the Crown was not estopped from leading evidence in the appellant's trial that John Likiardopoulos, Aydin and Singh had in fact murdered O'Brien.
The abuse of process argument fared no better. The court recalled the principles stated in Maxwell v The Queen that prosecutorial discretions are generally insusceptible of judicial review because of the constitutional separation of powers and the practical impossibility of courts assessing the multifarious policy and evidentiary considerations that inform charging decisions. While acknowledging that an exercise of prosecutorial discretion could in principle amount to an abuse of process, the court found no such abuse here. At the time the pleas were accepted the case against the co-offenders was weak; their cooperation enabled the Crown to place before the jury direct evidence of the appellant's dominant role. The appellant was a mature man who had exercised dominance over younger participants, urging Singh to "get back into it" by asking "Do you remember how it felt when it was happening to you? Is that all you've got?" and directing others to continue after the victim had been cleaned up. His moral culpability could reasonably be viewed as greater than that of the principals. In those circumstances the acceptance of the lesser pleas did not produce unfairness of the kind that would bring the administration of justice into disrepute. The trial judge had therefore been correct to leave the accessorial case to the jury and the conviction could stand.
Heydon J reached the same result by a slightly different route, emphasising that the appellant had not demonstrated that the evidence was incapable of proving that the alleged principals were in fact guilty of murder. He regarded the "juristic purposes" and "legal purposes" language relied on by the appellant as cloaking the practical reality that the principals had committed murder on the evidence led against the appellant.
Before and after state of the law
Before Likiardopoulos the common law maintained sharp distinctions between principals in the first degree, principals in the second degree (aiders and abettors present at the scene) and accessories before the fact (those who counselled or procured but were not present). As explained in Osland v The Queen (cited in the joint judgment), the liability of an accessory before the fact was purely derivative and at common law the accessory could not be tried until the principal had been convicted and attainted. That procedural bar proved inconvenient and was removed by 19th century English legislation, re-enacted in Victoria as s 323 of the Crimes Act 1958 (Vic): "A person who aids, abets, counsels or procures the commission of an indictable offence may be tried, indicted or presented and punished as a principal offender."
Osland had already established that, after s 323, it would rarely be necessary to decide whether a person present at the scene was guilty as principal or accessory. Surujpaul illustrated the limits of derivative liability in the context of a joint trial where all alleged principals were acquitted, rendering an accessory conviction "offensive to the law as to logic". Maxwell v The Queen had emphasised the limited role of the judiciary in reviewing prosecutorial charging decisions so as to preserve the separation of powers and the perception of judicial impartiality.
Likiardopoulos did not alter the statutory text or the underlying common law principles. Instead it clarified their practical operation in the modern context of sequential prosecutions and plea bargaining. After the decision it is clear that separate proceedings against an accessory may proceed on evidence that proves the commission of the principal offence even though the alleged principals have been dealt with for lesser crimes. The convictions of the principals do not create a bar, an estoppel or an automatic inconsistency. Prosecutorial decisions to accept lesser pleas in order to secure evidence against a more culpable participant will not lightly be characterised as an abuse of process. The judgment also left open (without deciding) the respondent's invitation to "sweep away all the outdated distinctions between principals and accessories" in favour of a single principle of complicity based on the accessory's own mens rea. French CJ expressly reserved the question whether statutory prosecutorial powers are wholly immune from judicial review for jurisdictional error under s 75(v) of the Constitution or the supervisory jurisdiction of state Supreme Courts.
Key passages with plain-English translation
The joint judgment contains several passages that repay close attention. At the heart of the ratio is the statement (echoed by Heydon J) that "the evidence in the appellant's trial was capable of proving that those whom the appellant was said to have directed and encouraged to commit the offence had murdered the deceased." In plain English: the Crown does not need the principals to have been convicted of murder; it only needs to be able to prove murder on the evidence called against this defendant. Once that threshold is met, the derivative nature of accessorial liability is satisfied.
On the estoppel argument the court said: "Their convictions for manslaughter were not conclusive against the world of the facts on which they were based. The Crown was not precluded from adducing evidence to establish the fact that John Likiardopoulos and Aydin murdered the deceased." Translation: a guilty plea and sentence binds the person who pleaded and the Crown in any future case between them, but it does not freeze the factual universe for everyone else. Other trials can still examine what actually happened.
Dealing with abuse of process the court observed: "it is possible to envisage cases in which an exercise of prosecutorial discretion may amount to an abuse of the process of the court. However, there is nothing in the conduct of the proceedings arising out of the death of the deceased that has produced unfairness of the kind that would lead a court to intervene to prevent the abuse of its process." In plain language: we can imagine a hypothetical prosecution so unfair that a court would stop it, but this is not that case. The Crown's decision to trade lesser charges for evidence against the ringleader was legitimate.
French CJ's reservation is also significant: he declined to endorse any absolute proposition that "the exercise of a statutory power or discretion by a prosecutor is immune from judicial review for jurisdictional error, however limited the scope of such review may be in practice." This leaves breathing space for future constitutional argument without affecting the outcome.
What fact patterns trigger this precedent
The decision is engaged whenever an accessory or secondary participant is prosecuted after the Crown has accepted lesser pleas from those alleged to be the principal offenders. Typical triggers include:
- a group assault or homicide in which one participant (often older or more dominant) directs, encourages or organises the violence but does not necessarily deliver the fatal blow;
- an initial evidentiary picture that is weak against most participants, prompting the Director to accept manslaughter or accessory-after-the-fact pleas in exchange for cooperation and testimony;
- a subsequent trial in which the secondary participant faces both joint enterprise and accessorial formulations, the latter relying on words and conduct at the scene that demonstrate knowledge of murderous intent and intentional encouragement;
- a defence submission that there is, "for juristic purposes", no principal offence because the principals have been convicted only of lesser crimes.
The precedent makes clear that such a submission will fail if the evidence at the accessory's trial is capable of proving that the principals did commit the more serious offence. It will also fail as an abuse of process argument unless the defendant can point to unfairness going beyond the ordinary disparity that arises when prosecutors make pragmatic charging decisions to secure evidence against the most culpable actor. The moral-culpability differential noted by the court (mature ringleader versus younger followers) is likely to be influential in future cases.
How later courts have treated it
Although the present judgment does not itself survey subsequent authority, its reasoning builds directly on Osland, Surujpaul and Maxwell and has reinforced the proposition that derivative liability does not create an absolute barrier once evidence capable of proving the principal offence is available. The careful distinction drawn between inconsistent verdicts in a joint trial and the position in sequential separate proceedings has removed a potential obstacle that previously troubled trial judges. The emphasis on the practical necessity of plea bargains to "unlock" evidence in otherwise weak multi-accused cases has been absorbed into the mainstream understanding of prosecutorial discretion. Trial judges after Likiardopoulos have been confident to leave accessorial cases to juries even where all identified principals have been dealt with for lesser offences, provided the evidentiary threshold is met and no specific unfairness is shown. The reservation by French CJ on the reviewability of statutory prosecutorial powers continues to be cited whenever parties seek to challenge charging decisions by prerogative writ or stay application, but the high threshold for intervention affirmed in the joint judgment has kept successful abuse-of-process applications rare.
Still-open questions
Two important questions were expressly left unresolved. First, the respondent's invitation to abolish the remaining common-law distinctions between principals in the first, second and third degrees and to replace them with a single coherent principle of complicity (liability fixed by the accessory's own mens rea rather than derivative guilt) was not decided. The court noted that such a step would be radical, might have unforeseen consequences for accused persons, and could only be taken by legislation in any event. Second, French CJ's reservation keeps alive the constitutional question whether a statutory prosecutorial discretion can ever be wholly immune from judicial review for jurisdictional error. The joint judgment did not need to answer that question, but the existence of statutory offices of Director of Public Prosecutions across Australia means the point may require determination in a future case where a charging decision is said to involve jurisdictional error rather than mere disagreement with its merits.
A further practical question left open is the precise limits of the "unfairness" that could turn an otherwise legitimate plea bargain into an abuse of process. The court gave the present facts a clean bill of health because the appellant's dominance and the evidentiary utility of the pleas were clear. In a future case where the accessory's culpability is not obviously greater, or where the Crown has made inconsistent factual admissions in the earlier pleas, the abuse-of-process argument may have more traction. Trial judges will continue to wrestle with how explicitly they may direct juries about the fact that other participants have been dealt with for lesser offences without creating prejudice or implying that the jury must accept the Crown's current characterisation of those participants as murderers. These issues ensure that Likiardopoulos remains a living authority rather than the last word on accessorial liability and prosecutorial strategy in group violence cases.