Criminal Liability for Getaway Drivers in Western Australia

“I was only driving the car” may seem like a good excuse, but the criminal law in Western Australia has other ideas. Being the getaway driver for an offence can, in many circumstances, give rise to equal criminal liability to the principal offender.

Even if a person does not enter a house, threaten a victim or physically steal property themselves, they can still be convicted of a serious offence if they helped the principal offenders escape.

The following outlines the main principles which apply to alleged getaway drivers in Western Australia, including knowledge requirements and how involved a person needs to be in order to be equally liable.

Key Takeaways

• A getaway driver can potentially be charged with the same underlying offence as the person who physically committed it if they intentionally aided or enabled the offending.
• Knowledge and intention are central. Simply driving a person who later commits an offence will not, by itself, establish criminal liability.
• Common purpose provisions can extend liability where people share an unlawful plan and another offence occurs as a probable consequence of carrying it out.
• Withdrawing from a shared unlawful purpose requires more than privately changing your mind; the withdrawal must meet specific requirements.
• Police may rely on CCTV, phone records, messages, GPS data, vehicle evidence and conduct before and after the offence when investigating a getaway driver.

Can a Getaway Driver Be Charged With the Same Offence in WA?

Under the criminal law, we call the person who is criminally liable for an offence, such as robbery or murder, the ‘principal offender’.

Section 7 of the Criminal Code Act Compilation Act 1913 (WA) (‘the WA Criminal Code’) defines principal offenders broadly. This includes not only the person who physically performs the act constituting the offence, but also a person who does or omits an act for the purpose of enabling or aiding another person to commit it, a person who aids another in committing it and a person who counsels or procures its commission.

This means a getaway driver can potentially be convicted of the robbery, burglary, assault or another offence which the driver intentionally helps to carry out. The prosecution does not have to charge the driver with a lesser offence merely because they remained in the vehicle.

Does a Getaway Driver Have to Know What the Others Are Planning?

Knowledge and intention are central to determining whether a getaway driver is a principal offender.

Merely being the driver of a vehicle in which an offender travelled is not enough. Generally, the getaway driver would need actual knowledge of the essential facts constituting the offence that is being, is about to be, or might be committed, together with intentional assistance.

Knowledge and purpose are often proved circumstantially, with relevant evidence including messages between offenders before the offence, discussions about a plan and the driver’s behaviour.

What Is Common Purpose?

Section 8 of the WA Criminal Code also contains a provision extending liability where two or more people form a common intention to pursue an unlawful purpose together. This ‘common purpose’ liability not only extends to the principal offence, but also other offences which may arise from that offending in accordance with the statutory test.

For example, a group might agree to commit a burglary and one participant commits a violent assault offence during the incident. The fact that the driver personally expected to remain outside does not necessarily resolve liability for the further offence. The court must examine the unlawful purpose which was shared and whether the further offence was a probable consequence within the statutory test.

What If the Getaway Driver Changes Their Mind?

Section 8 of the WA Criminal Code expressly addresses withdrawal from a common unlawful purpose which, if accepted, could avoid deemed liability for being a planned getaway driver.

To be effective, a person must withdraw before the further offence is committed, communicate the withdrawal to each other person with whom the unlawful purpose was formed and take all reasonable steps to prevent the commission of the offence.

Simply becoming nervous or privately changing one’s mind will not amount to an effective withdrawal.

What If You Only Help Someone Escape After the Crime?

Helping someone avoid authorities after an offence is generally dealt with as a separate form of criminal liability known as being an ‘accessory after the fact’.

Section 10 of the WA Criminal Code describes an accessory after the fact as a person who, knowing that another person has committed an offence, receives or assists that person in order to enable them to escape punishment.

For indictable offences, section 562 of the Code makes being an accessory after the fact a crime. The maximum penalty for the accessory-after-the-fact offence is 14 years’ imprisonment where the principal offence is punishable by life imprisonment. In other cases, the maximum is generally half the penalty with which the principal offence is punishable on indictment.

What If the Driver Does Not Know Exactly What Offence Is Planned?

A getaway driver may argue that they knew the passengers intended to do something unlawful but did not know the precise offence. The legal effect depends on the charge and the basis of accessorial liability being relied upon.

For direct aiding under section 7 of the Code, the prosecution must establish the required intentional assistance for the relevant offence. This does not necessarily mean that the driver must know the precise legal offence being committed or every detail of how it will be carried out. However, the prosecution must prove that the driver had actual knowledge of the essential facts constituting the offence that was being, was about to be, or might be committed, and intentionally did something to aid or assist its commission.

For common purpose liability under section 8 of the Code, the question includes whether the offence actually committed was a probable consequence of the shared unlawful purpose. A driver may therefore be liable for an offence even if they did not know in advance precisely how the offending would unfold, provided they shared the relevant unlawful purpose and the further offence was a probable consequence of carrying out that purpose.

What Evidence May Be Used to Establish a Getaway Driver’s Involvement?

Modern investigations often combine physical and digital evidence, which can include:

• CCTV showing where the vehicle waited and how quickly it left;
• vehicle registration and automatic number-plate recognition evidence;
• mobile-phone location information;
• calls and messages between participants;
• GPS or navigation history;
• dashcam footage;
• statements made before or after the offence;
• conduct following the offence; and
• division of stolen property or other proceeds.

Investigators may also rely on evidence found in the vehicle, such as stolen property, clothing, weapons or tools, although possession of an item must still be considered in context.

What If the Underlying Offence Is a Commonwealth Offence?

Comparable principles of complicity can also apply to Commonwealth or Federal criminal offences.

Section 11.2 of the Criminal Code Act 1995 (Cth) (the Commonwealth Criminal Code) provides that a person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly. The person’s conduct must in fact have assisted the offence and the required mental element concerning that assistance and the offence committed must also be established.

The Code also contains a joint commission provision under section 11.2A. Where people enter into an agreement to commit an offence and an offence is then committed in accordance with, or in the course of carrying out, that agreement, a participant may be treated as having committed the joint offence even though another participant performed the physical act. Further, section 11.5 of the Code separately creates conspiracy liability for qualifying Commonwealth offences where there is an agreement, the necessary intention and an overt act pursuant to the agreement.

What If You Were Just Giving Someone a Lift?

Being the driver of a vehicle associated with an offence does not, by itself, explain what the person knew or intended. The prosecution still needs to establish the person’s involvement and knowledge of what they were participating in.

WA criminal law recognises that some individuals may be innocently used by offenders and may lack the required knowledge to be held criminally liable. An accused person’s explanation can be important. As such, legal advice should be obtained before deciding whether to participate in a recorded police interview.

Author Andrew Williams