Can actus reus be retroactive?

Question

This is a follow-up to Can a fulfilled justified anticipated approval of a crime make one an accomplice?.

Consider the followin scenario. There's a crime boss in town notorious for allegedly killing all his enemies. However, he never asks anybody to kill. Instead, re rewards the killers after the murders.

There is no bounty. There is no contract of any kind. No promises of rewards. Only the reputation that he always pays after the fact.

When accused of killing any specific person his defence is that he never asked for the murder. It's not his fault that everybody know who his enemies are. Yes, he paid; but that happened only after the murder, and with no prior arrangement.

Is the crime boss an accomplice?

This scenario is close to the ones in the question sited above, where the accepted answer is negative due to the lack of actus reus in the scenarios of that question. I wonder whether anything is different in this one. Can the action of fulfilling the implicitely expected payment becomes the necessary element to make the payer an accomplice?

Answer 1

Yes

It even has a specific name: accessory after the fact

A person is an accessory after the fact to the commission of a crime if, knowing that the crime has been committed, the person assists the principal offender.

Answer 2

france

Support, incitement, or instructions to commit a crime must happen before or simultaneously to make someone an accomplice but in situations like the one you describe, courts may very well look at all the facts and especially the reward itself as evidence of a pre-existing agreement, even if there is no direct proof that it was sealed before the murder.

There is no bounty. There is no contract of any kind. No promises of rewards. Only the reputation that he always pays after the fact.

As you describe it, the reputation is based on many past paid bounties. That may or may not be sufficient to establish that the crime boss instructed a specific murder but those are definitely positive acts that occurred before the murder.

It's not his fault that everybody know who his enemies are.

Surely the crime boss does not reward any and all random murders in town. This also means he must have given some hint of whom he counted as his enemies, it definitely could be his fault. Given his well-established reputation, this could also be interpreted as a promise or incitement to commit murder.

Ultimately, the question may be based on a false distinction. You're trying to contrive a situation where there is no evidence of direct communication between the boss and the killer but if the circumstances are clear enough for the perpetrator to know there will be a bounty, then they might be clear enough for a judge or jury to reach the same conclusion.

The decision is much more likely to hinge on whether the reputation, the murder, and the rewards are enough to establish that there was indeed an understanding between the killer and the crime boss than any theory focused solely on the reward. The standard of proof in criminal law may make all this somewhat difficult to establish in any particular case but there are precedents where the fact that a payment was made coupled with the knowledge that the primary offender was a repeat offender who would be incited to repeat the crime was enough to find that the payer was an accomplice.