Criminal Law Code as at 1st March 2007 (d) the crime actually committed— (i) was the crime for the commission of which they associated with each other; or (ii) was, if not the specific crime for the commission of which they associated with each other, a crime whose commission they realised was a real risk or possibility. (3) If any accused person referred to in subsection (2) who is not the actual perpetrator of the crime— (a) does not discharge the burden mentioned in subparagraph (i) or (ii) of paragraph (d) of subsection (2), his or her liability as the co-perpetrator of the crime shall not differ in any respect from the liability of the actual perpetrator, unless he or she satisfies the court that there are special circumstances peculiar to him or her or to the case (which circumstances shall be recorded by the court) why the same penalty as that imposed on the actual perpetrator should not be imposed on him or her; or (b) discharges the burden mentioned in subparagraphs (i) and (ii) of paragraph (d)16 of subsection (2), he or she shall be found guilty of assisting the actual perpetrator of the crime as an accomplice or accessory. (4) Where there is a dispute between or among two or more accused persons referred to in subsection (1) as to the identity of the actual perpetrator (which dispute cannot be resolved by reference to the evidence that is available to the State) the burden of proving that any particular accused person did not actually perpetrate the crime shall rest with that person. (5) If any of the accused persons referred to in subsection (4) fails to discharge the burden there referred to and the actual perpetrator is not identified, the accused person or persons concerned shall be liable for punishment as if he or she or each of them was the actual perpetrator. (6) It shall not be necessary to prove that there was a prior conspiracy to commit the crime for the commission of which a person is associated with another person or other persons in order for a court to find that any person is liable as a co-perpetrator of any crime. (7) A person charged with being a co-perpetrator of crime may be found guilty of assisting the actual perpetrator of the crime as an accomplice or accessory if such are the facts proved. (8) For the avoidance of doubt it is declared that this section may not be used to convict a co-perpetrator of murder unless he or she was present with the actual perpetrator while the victim was still alive and before a mortal wound or mortal wounds had been inflicted. 197 Liability of accomplices (1) Subject to this Part, an accomplice shall be guilty of the same crime as that committed by the actual perpetrator whom the accomplice incited, conspired with or authorised or to whom the accomplice rendered assistance. (2) An accomplice may be found guilty of the crime committed by the actual perpetrator whom the accomplice incited, conspired with or authorised or to whom the accomplice rendered assistance, even if⎯ (a) the accomplice lacks the ability or capacity to commit the crime himself or herself; or 16 As amended by s. 31 of Act 9/2006 [reference to paragraph (d) substituted for reference to paragraph (b)]. - 113 -