Commonwealth Director of Public Prosecutions v Poniatowska [2011] HCATrans 46

The Commonwealth Director of Public Prosecutions (CDPP) sought special leave to appeal from a decision of the Full Court of the Federal Court of Australia concerning the interpretation of s 11.1(1) of the *Criminal Code Act 1995* (Cth) (the Code). The respondent, Ms Poniatowska, had been charged with offences under s 134.2(1) of the Code, which relates to making false or misleading statements to obtain financial advantage. The core of the dispute involved whether the CDPP could rely on a general provision of the Code, s 11.1(1), which deals with complicity in the commission of an offence, to prosecute Ms Poniatowska for offences committed by another person, where the specific offence provision, s 134.2(1), did not itself contain any reference to complicity.

The High Court was required to determine whether s 11.1(1) of the Code, which creates liability for intentionally aiding, abetting, counselling or procuring the commission of an offence, could be applied to an offence created by s 134.2(1) of the Code, which does not expressly refer to complicity. Specifically, the question was whether the general provisions of Chapter 2 of the Code, which includes s 11.1(1), apply to offences defined in other Chapters of the Code, such as Chapter 7 where s 134.2(1) is located, even if those specific offence provisions do not incorporate the general principles of criminal responsibility.

The High Court granted special leave to appeal and, in a joint judgment, held that the general principles of criminal responsibility contained in Chapter 2 of the Code, including those relating to complicity, apply to all Commonwealth offences unless expressly excluded. Their Honours reasoned that the structure of the Code, particularly the introductory provisions of Chapter 2, indicated an intention for these general principles to have broad application. The Court found that s 11.1(1) was not limited to offences defined within Chapter 2 itself, but rather provided a general framework for attributing criminal liability for the commission of any Commonwealth offence. Consequently, the CDPP was entitled to rely on s 11.1(1) to prosecute Ms Poniatowska for aiding and abetting the commission of offences under s 134.2(1).

The High Court allowed the appeal, set aside the orders of the Full Court of the Federal Court, and remitted the matter to the Federal Court for determination according to law.