Director of Public Prosecutions v Hudson (Ruling No 2)
[2025] VCC 1203
•25 August 2025 (First Revision 28 August 2025)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Unrestricted Suitable for Publication |
GENERAL LIST
Case No. CR-24-00847
CR-24-00846
CR-24-00844
CR-25-01445
Indictment No. C2316620.2A
C2316620.2B
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL HUDSON |
| and |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LUAL AJING |
| and |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JYE PITTARI |
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JUDGE: | HER HONOUR JUDGE MANOVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 August 2025 | |
DATE OF RULING: | 25 August 2025 (First Revision 28 August 2025) | |
CASE MAY BE CITED AS: | DPP v Hudson & Ors (Ruling No 2) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1203 | |
RULING
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Subject:COMPLICITY
Catchwords: difference between “in company” during the commission of an offence and entry into an “agreement arrangement or understanding to commit an offence.
Legislation Cited: Crimes Act 1958 (Vic), s77B, s323, s324, s324A, s324B
Cases Cited:The King v Rohan (2024) 280 CLR 288; Osland v The Queen (1998) 197 CLR 316; DPP v Gebregiorgis & Anor (2023) 71 VR 361; Mitchell v The Queens (2023) 276 CLR 299; R v Button; R v Griffen (2002) 54 NSWLR 455
Ruling: If the prosecution make out the elements of “complicity” in respect of each accused, the prosecution is not required to establish that an accused was physically present or “in company” with offenders who enter a home.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms E Ruddle KC with Mr A Buckland and Mr E Dober | Solicitor for the Office of Public Prosecutions |
| For the Accused Hudson | Mr J Moore with Ms I Siriwardana | Victoria Legal Aid |
For the Accused Ajing | Ms J Clark | Greg Thomas Barristers & Solicitors |
| For the Accused Pittari | Ms J Swiney | Stary Norton Halphen |
HER HONOUR:
Introduction
1This pre-trial ruling deals with one issue. On a charge of aggravated home invasion under s77B of the Crimes Act 1958 (Vic) (“the Act”), where the prosecution relies on complicity under s323(1)(c) of the Act, is there an additional requirement for the prosecution to prove that the accused was “in company” and present at the time of commission of the offence.
2In my view, the answer to this question is “no”.
3Mr Hudson and Mr Pittari could be convicted of aggravated home invasion under s323(1)(c) and s324 of the Act even if the Crown is not able prove they physically entered the relevant “home”.
4The basis of liability under s323 and s324 would be complicity in offending by others. This is a form of primary liability arising from a type of agency. Each would be found to have been involved in the commission of the offence, on account of having entered into an agreement with other/s, and pursuant to and within the scope of the agreement, those other/s have committed the offence.
5The argument was run by Ms Swiney on behalf of Mr Pittari. Mr Moore and Ms Siriwardana adopted Ms Swiney’s submissions on behalf of Mr Hudson.
6Ms Ruddle KC appeared with Mr Buckland and Mr Dober on the argument, for the Director. Mr Buckland and Mr Dober otherwise have the carriage of the prosecution.
Background
7In this case the prosecution alleges that, between May and November 2023, a number of young men committed a series of aggravated home invasions in the Western suburbs of Melbourne. The offences were committed using stolen cars for transport. Between the hours of 10.40pm and 3.40am, up to five, but always at least three or more offenders entered the premises at each incident. The offenders were armed with machetes and gardening implements, they wore face coverings and dark clothing. Entry was effected by prying or forcing open the front door of the premises, using the weapons. People were present at all of the premises in question and on some occasions, there were violent confrontations between the offenders and the occupants.
8The prosecution may not be able to identify with specificity which accused performed which actions. It is possible that, for some or all of the offences, the prosecution cannot exclude the possibility that Mr Hudson or Mr Pittari did not enter the home in question but remained outside as a get-away driver (or played some other role) while other offenders entered the homes and committed the offences.
9The prosecution relies on “agreement, arrangement or understanding” to enter into homes looking for cannabis. It says such agreement can be inferred from a body of evidence. That includes communications between the accused, their conduct on the nights in question, CCTV recordings at the homes of Mr Hudson and Mr Pittari which allegedly depicts them carrying cannabis plants from vehicles alleged to be connected to some of the offences, and other surrounding circumstances.
10There are two indictments.
11On one indictment, Mr Hudson is charged together with Mr Ajing, with two charges of aggravated home invasion alleged to have been committed on 18 May 2023 and 24 May 2023. Each is also charged with theft of a motor vehicle, which charge is not relevant to this ruling.
12Mr Ajing did not participate in or wish to be heard on this argument. His trial has been adjourned pending an interlocutory appeal due to be heard in September 2025.
13On the second indictment, Mr Hudson is charged together with Mr Pittari, with eight charges of aggravated home invasion alleged to have been committed on 16 August 2023, 11 October 2023, 17 October 2023 (two instances), 20 October 2023, 16 November 2023 (two instances), and 22 November 2023 and two charges of attempted aggravated home invasion alleged to have been committed on 23 August 2023 and 11 November 2023. They are also charged with theft of a motor vehicle, common assault, burglary and intentionally causing injury, which charges are not relevant to this ruling.
The applicable law
14Section 77B of the Act provides:
“77B Aggravated home invasion
(1) A person commits an aggravated home invasion if—
(a) the person enters a home as a trespasser with intent—
(i) to steal anything in the home; or
(ii)to commit an offence, punishable by imprisonment for a term of 5 years or more—
(A) involving n assault to a person in the home; or
(B) involving any damage to the home or to property in the home; and
(b) the person enters the home in company with 2 or more other persons; and
(c) at the time the person enters the home—
(i) the person has with them a firearm, an imitation firearm, an offensive weapon, an explosive or an imitation explosive; and
(ii) the person knows or is reckless as to whether there is or will be another person (other than a person referred to in paragraph (b)) present in the home while the person is present in the home; and
(d) at any time while the person is present in the home, another person (other than a person referred to in paragraph (b)) is present in the home.
(2) A person who commits an aggravated home invasion commits an offence and is liable to level 2 imprisonment (25 years maximum).
(3) A person may be found guilty of an offence against this section whether or not any other person is prosecuted for or found guilty of the offence.
(4)In this section—
explosive, firearm, imitation explosive, imitation firearm, and offensive weapon have the same meanings as in section 77;
home has the same meaning as in section 77A.”
Notes 1AA An offence against this section is a category 1 offence under the Sentencing Act 1991. See section 5(2G) of that Act for the requirement to impose a custodial order for this offence
1 Section 10AC of the Sentencing Act 1991 requires that a term of imprisonment be imposed for an offence against section 77B and that a non-parole period of not less than 3 years be fixed under section 11 of that Act unless the court finds under section 10A of that Act that a special reason exists.
(Emphasis added.)
15The prosecution relies on ss323, 324, 324A and 324B of the Act. Division 1 of Part II, which includes ss323 and 324, makes provision for “abettors, accessories and concealers of offences”.
16Section 323 of the Act provides:
“323 Interpretation
(1) For the purposes of this Subdivision, a person is involved in the commission of an offence if the person—
(a) intentionally assists, encourages or directs the commission of the offence; or
(b) intentionally assists, encourages or directs the commission of another offence where the person was aware that it was probable that the offence charged would be committed in the course of carrying out the other offence; or
(c) enters into an agreement, arrangement or understanding with another person to commit the offence; or
(d) enters into an agreement, arrangement or understanding with another person to commit another offence where the person was aware that it was probable that the offence charged would be committed in the course of carrying out the other offence.
(2) In determining whether a person has encouraged the commission of an offence, it is irrelevant whether or not the person who committed the offence in fact was encouraged to commit the offence.
Note
A person who committed an offence may include 2 or more persons who entered into an agreement, arrangement or understanding to commit the offence.
(3) A person may be involved in the commission of an offence, by act or omission—
(a) even if the person is not physically present when the offence, or an element of the offence, is committed; and
(b) whether or not the person realises that the facts constitute an offence.”
(Emphasis added.)
Section 324 of the Act provides:
“324 Person involved in commission of offence taken to have committed the offence
(1) Subject to subsection (3), if an offence (whether indictable or summary) is committed, a person who is involved in the commission of the offence is taken to have committed the offence and is liable to the maximum penalty for that offence.
(2) Despite subsection (1), a person is not taken to have committed an offence if the person withdraws from the offence.
…
Note
The common law recognises that in certain circumstances a person may withdraw from an offence in which the person would otherwise be complicit: for example, White v Ridley [1978] HCA 38; (1978) 140 CLR 342; R v Tietie, Tulele and Bolamatu (1988) 34 A Crim R 438; R v Jensen and Ward [1980] VicRp 24; [1980] VR 194.
(3) Nothing in this section imposes liability on a person for an offence that, as a matter of policy, is intended to benefit or protect that person.”
18Section 324A of the Act provides:
“324A Other offenders need not be prosecuted or found guilty
A person who is involved in the commission of an offence may be found guilty of the offence whether or not any other person is prosecuted for or found guilty of the offence.”
19Section 324B of the Act provides:
“324B Offender's role need not be determined
A person may be found guilty of an offence by virtue of section 324 if the trier of fact is satisfied that the person is guilty either as the person who committed the offence or as a person involved in the commission of the offence but is unable to determine which applies.”
20In The King v Rohan (A Pseudonym)[1] the High Court[2] considered the operation of s323 and s324 of the Act.
[1](2024) 280 CLR 288 (“Rohan”)
[2]Gageler CJ, Gordon, Edeleman, Gleeson and Jagot JJ
21Mr Rohan, together with two others entered into an agreement to supply alcohol and cannabis to “Daisy” age 11 and “Katie” age 12 in order to engage in sexual activity. They then carried out the terms of the agreement and engaged in sexual activity with “Daisy”.
22Mr Rohan was convicted on a complicity basis within the meaning of 323(1)(c). He appealed his convictions on the basis that the trial judge should have directed the jury it needed to be satisfied he knew the age of the children at the time of entering into the agreement with the co-offenders.
23The Court of Appeal[3] allowed his appeal.
[3]Emerton P and Kyrou and T Forrest JJA
24The High Court reversed the Court of Appeal decision and held that the trial judge had not misdirected the jury. The prosecution was not required to prove Mr Rohan knew the essential facts that made the proposed conduct an offence (the age of the children), where that knowledge or belief was not an element of the offence itself.
25Gageler CJ, Gordon and Edelman JJ said:
“Sections 324(1), 323(1)(c) and 323(3)(b) combine to provide that if an offence is committed, a person who entered into an agreement, arrangement or understanding with another person to commit that offence is taken to have committed that offence and is liable to the maximum penalty for that offence, whether or not the person realised that the facts constituted an offence.
…
The term ‘offence’ appears throughout the Subdivision. It is not defined … .
… the term ‘offence’ means the criminal offence – that is, the concatenation of factual elements (physical, mental and circumstantial) which give rise to criminal liability, rather than solely the physical acts. … .
…
But that is not the end of the inquiry. It does not necessarily follow that, because ‘offence’ refers to all the elements of the offence, it must be proved that a person who ‘enters into an agreement ... to commit the offence’ intends, knows, or believes in the existence of, all those elements . Section 323(1)(c) should not be construed simply by focusing on the meaning of a single word used throughout the Subdivision. What does s 323(1)(c) mean when it says ‘enter[] into an agreement, arrangement or understanding with another person to commit the offence’? The liability is based on agreement (extending to an arrangement or understanding) with another person or persons. The requisite agreement may be expressed in words. But there is no reason why the agreement may not be inferred from the parties' conduct. The jury must be satisfied beyond reasonable doubt that the person and another person or persons agreed something would be done or omitted to be done – to commit an offence.”[4]
(Emphasis added.)
[4]Rohan at 299 and 303, paragraphs [15] and [27]-[29]
26Their Honours outlined a three-stage test relevant to making a determination under s324(1) and s323(1)(c) and said that a person will be liable under those provisions if:
“… first, they enter into an agreement with another person or persons to do certain acts or omissions necessary to commit an offence; second, in accordance with (and within the scope of) that agreement, one or more parties to the agreement performs all of the acts or omissions necessary to commit the offence, in the circumstances necessary for the commission of that offence; and third, at the time of entering into the agreement, the person had the state of mind required for the commission of the offence. The person is then liable under s 324(1), subject to any excuses or defences that may be available to them.)”[5]
(Emphasis added and footnotes omitted.)
[5]Rohan at 305, paragraph [34]
27Their Honours said, of this three-stage construction, that it is reinforced by s324B of the Act. That section provides that a person may be found guilty of an offence if the trier of fact is satisfied that the person is guilty, either as the person who committed the offence or as a person involved in the commission of the offence, but the trier of fact is unable to determine which applies:
“… That is, where two or more persons entered into an agreement to commit an offence within the meaning of s 323(1)(c) and an offence was committed in accordance with that agreement, the jury need not be satisfied of what role each person played in the commission of the offence, provided that the acts committed were within the scope of the continuing agreement and the person had the state of mind required for the offence at the time of the agreement.
…
…The things done, in accordance with the continuing agreement, which are necessary to constitute the crime are attributed to all parties to the agreement and they are all equally guilty of the crime regardless of the part played by each in its commission. Where the crime is committed, s 323(1)(c) should not be understood as permitting or requiring the parties to an agreement to commit the crime to be treated differently according to who did what.
….
… The plain language of s 323(1)(c) should be given effect according to its terms. There is no need to read in an additional fault element, beyond the fault elements that make up the offence that is the subject of the agreement. The additional fault element in Giorgianni – that the accused knew all of the essential facts which made what was done a crime – is apposite to s 323(1(a), which, like aiding and abetting, is a form of derivative liability (requiring the commission of a crime by another), but is inapposite to s 323(1)(c), which, like the doctrine of joint criminal enterprise, is a form of primary liability.[6]
(Emphasis added and footnotes omitted.)
[6]Rohan at 305-6 and 308, paragraphs [34]-[36] and [41]
28Gleeson and Jagot JJ said that s323(1)(c) reflects the common law doctrine of common purpose – which involves “mutual embarkation on a crime”, in which event, if one person commits all acts or omissions necessary to constitute the crime, the others have also committed that crime, stating:
“… As McHugh J explained in Osland v The Queen, the correct principle in such a case is that the parties to the agreement, arrangement or understanding ‘are all equally liable for the acts that constitute the actus reus of the crime’. That is, ‘it is the acts, and not the crime, of the actual perpetrator which are attributed to the person acting in concert’. This means, for example, that the actual perpetrator of the acts may be acquitted of the crime and the other party or parties to the agreement, arrangement or understanding convicted of the crime”.[7]
(Footnotes omitted.)
[7](Ibid) at 315, paragraph [64]
29Their Honours disavowed any interpretation of 323(1)(c) which sought to incorporate (knowledge of the girls’ age), as proof of knowledge was not required as an element of the commission of the offence:
“[Section 323(1)(c)] involves entering into an agreement, arrangement or understanding with another person for either or both to commit the offence. In this ... case, the equivalence of criminal culpability between the parties to the agreement, arrangement or understanding is created by their mutual entry into the agreement, arrangement or understanding to commit the offence. This equivalence means that whatever mental and circumstantial state is sufficient for one party to commit the offence is also sufficient to mean the other party is taken to have committed that offence.”[8]
(Emphasis added.)
[8](Ibid) at 318, paragraph [73]
30In DPP v Gebregiorgis & Anor,[9] the Court of Appeal[10] considered the application of s323(1)(a) and (c) on a case stated.
[9](2023) 71 VR 361; [2023] VSCA 166
[10]Emerton P, Priest and Kaye JJA
31Mr Gebregiorgis and Mr Kassa are brothers. They were charged with the murder of Alier Riak. On the night in question they had all been to a venue in Melbourne and found themselves involved in an altercation with a number of men on Bourke Street. During the altercation, Mr Kassa was grabbed by one of the men, (Alier Riak) and thrown to the ground. Mr Gebregiorgis produced a knife and attacked Riak who retreated to a nearby park. Kassa caught him at the entrance to the park and stabbed him twice. Gebregiorgis then approached and stabbed Riak once in the chest. Riak escaped and ran out of the park. He died in an ambulance before reaching the hospital.
32The Court of Appeal answered “no” to two questions on the case stated;
(a) one directed at s323(1)(a), did the prosecution have to prove the secondary party intentionally encouraged the primary offender to kill the deceased;
(b) the other at s323(1)(c), did the prosecution have to prove that the agreement was for either or both to kill the deceased?
33In order for either Gebregiorgis or Kassa to be liable as a “secondary party” under 323(1)(c) for the murder committed by the other (principal offender) the prosecution must prove to the criminal standard:
(a) that Gebregiorgis or Kassa entered into an agreement to commit the offence of murder, in that they agreed to perform an act or acts directed to Riak (infliction of injury with a knife) with the intent necessary for murder (intent to kill or cause really serious injury);
(b) that either Gebregiorgis or Kassa actually performed the act causing the death, with the necessary intent for murder (intent to kill or cause really serious injury).
34Priest and Kaye JJA (with whom Emerton P agreed) said:
“Notwithstanding that the legislation by its terms does not replicate the common law, it nevertheless is clear that the form of complicity provided for in s 323(1)(c) closely resembles joint criminal enterprise at common law, a form of primary liability based on agency. So much is clear from Mitchell, in which Gordon, Edelman and Steward JJ observed:
The doctrine of joint criminal enterprise or common enterprise is based on agreement (also expressed as common purpose, design, or enterprise). Whether the agreement is expressed in words or inferred ‘from the parties’ conduct’, each party to an agreement to commit a crime will be guilty of the agreed crime and any crime ‘within the scope of the agreement’. It is therefore essential to identify what acts and omissions the parties agreed upon. The agreement need not be express and may be an inference drawn from the parties’ conduct, but it must be subjectively appreciated by the accused. …..
….
….‘if several persons act together in pursuance of a common intent, every act done in furtherance of such intent by each of them is, in law, done by all’. It is in this sense that joint criminal enterprise is a form of primary liability: all parties are liable as principals in the first degree because those persons who do not physically perform the acts are acting in concert and have the relevant mens rea. Accordingly, the liability of each party is not derivative, but primary. Hence, all those things done ‘in accordance with the continuing understanding or arrangement ... which are necessary to constitute the crime’ are attributed to all parties to the agreement and ‘they are all equally guilty of the crime regardless of the part played by each in its commission’.”[11]
(Emphasis added and footnotes omitted.)
[11] Gebregiorgis at 375, paragraph [59]
Submissions of the parties
Submissions on behalf of Mr Pittari[12]
[12] Submissions dated 14 August 2025
35Ms Swiney submitted that:
(a) despite the broad operation of s 323, a person cannot be guilty of the offence of aggravated home invasion if they do not actually enter the premises themselves. The reason for this is the wording of s 77B(1)(b) which requires the prosecution to establish that the accused “entered the home in company with 2 or more other persons”. The words “in company” must have work to do;
(b) Parliament intended for the home invasion provisions to apply to multiple offenders and for aggravated burglary to remain and to continue to apply to cases where one offender only enters a residence;
(c) Although the term “in company” is not defined in the Act, the cases suggest physical presence is required. Participation in the common purpose without being physically present, for example as a look out or get-away driver is not enough. Therefore, it is not possible to make out the offence under 77B(1)(b) if the home invasion was planned by three people but only one entered;
(d) The mandatory minimum 3 year non-parole period which attaches to offences under s77B supports a construction which requires the prosecution to prove physical presence by the accused at the commission of the crime;
(e) Therefore, the appropriate charge is aggravated burglary which does not require more than one accused to enter the premises.
Submissions on behalf of the prosecution[13]
[13] Submissions undated but sent to the Court on 15 August 2025
36Ms Ruddle KC submitted that:
(a) for an accused person to be convicted of aggravated home invasion on a complicity basis, s/he need not have physically entered the premises “in company” with anyone. The offence would be made out if the prosecution could prove the following:[14]
(i)that the acts making up the offence of aggravated home invasion had been committed by others. That is all of the elements in 77B have been satisfied, including entry by three or more offenders “in company with one another” (subject to the below);
(ii)that pursuant to s 323(1) the accused, being a person who did not enter “in company” with the other three offenders either:
1. intentionally assisted, encouraged or directed at least one of the other offenders to commit the acts which make up the offence of aggravated home invasion “in company” with two or more; (s323(1)(a)); or
2. entered into an agreement, arrangement or understanding with at least one of the others to commit the acts which make up the offence of aggravated home invasion “in company” with two or more; (s323(1)(c)).
[14]Transcript (“T”) 287
(b) In this matter, the offences are put against Mr Pittari as principal, and in the alternative on a complicity basis pursuant to 323(1)(a). Orally, Ms Ruddle KC focused the argument on s323(1)(c).[15] Reliance was placed on the three-stage test set out in Rohan;
(c) In essence, the principles of complicity only require that the secondary offender (in this case Mr Pittari/Mr Hudson) intended for another person (the primary offender) to enter in company with two or more persons.
[15]Ibid
37By way of response to the submissions on behalf of the accused, Ms Ruddle KC submitted that the argument conflates[16] the requirement to make out the elements of s 77B with the requirements of proving complicity under s 323. Each must be made out separately by the prosecution. However, where reliance is placed on 323(1), the accused is liable for home invasion, not because he committed home invasion, but because he was complicit in the commission of home invasion by others.
[16]T291
38This construction is supported by s323(3)(a), which clearly provides that a person may be involved in the commission of an offence, by act or omission even if the person is not physically present when the offence, or an element of the offence, is committed.
Consideration
39Pursuant to s324(1) of the Act, if an offence is committed, a person who is involved in the commission of the offence is taken to have committed the offence and is liable to the maximum penalty for that offence.
40The circumstances in which a person can be considered to be involved in the commission of the offence are set out in s323(1).
41The prosecution highlighted the three stage test in Rohan as the appropriate mechanism for reasoning to a conviction:
(a) first, the prosecution must show that the accused entered into an agreement with another person or persons to commit aggravated home invasion;
(b) second, within the scope of the agreement, one or more parties to the agreement committed the acts which make up the offence (that is, together with two or more offenders, entered the home with the requisite intent and weapons, and persons have been present);
(c) third, the prosecution must establish that the accused “is involved” in the commission of that offence that is, had the state of mind necessary for the commission of the offence.
42If all three steps above are completed, the accused is taken to have committed the offence. Self-evidently, this is not the same as “in fact having committed”. This liability is analogous to deeming provisions which can be found in a variety of non-penal statutes. Such provisions may “deem” a state of affairs to exist for certain purposes, when in actual fact it does not exist. [17]
[17]For example under the Social Security Act 1991 (Cth), for the purpose of assessment of eligibility for a pension, income test deeming rules “assume” a certain amount of income is derived from financial investments regardless of the actual amount earned by those investments, which at any time could be “nil”. Under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) members of Victoria police are “deemed” workers for the purposes of statutory benefits entitlements, however police are not in fact “workers” or “employees” see Konrad v Victoria Police (1998) 152 ALR 132
43Ms Swiney relied on R v Button; R v Griffen[18] (“Button”) as authority for the proposition that physical presence is required for offences committed “in company”.
[18](2002) 54 NSWLR 455
44I accept that submission. However, for the reasons outlined below, I consider it does not assist the argument that physical presence is required where the case is put on a complicity basis.
45In Button, five co-accused were convicted of the offence of “aggravated sexual assault” under s 61J of the Crimes Act 1900 (NSW) against one complainant. On the night in question, after festivities, the complainant accepted a lift home in a car occupied by the five co-accused. The vehicle stopped in a secluded location where she was raped in turn by each man. The charge was put on the basis that each accused himself raped the complainant “in company” with another, which was expressed to be a circumstance of aggravation of the rape charge itself.
46An issue in Button was whether acts of rape by one accused, which occurred about 50 metres from the group of other offenders, could be found to have been committed “in company” with those men.
47The Court of Criminal Appeal[19] held that proof of physical presence or a degree of proximity was required to satisfy the element of “in company”. The degree of physical proximity must have been such as “either to embolden or reassure the offender in committing the crime” or to “intimidate the victim into submission”.
[19]Heydon JA, Greg James and Kirby JJ
48Button does not help the argument of the accused, as the court was not there concerned with convictions based on accessorial liability. As Heydon JA said:
“...apart from Jarrett at the quarry none of these prisoners is charged as a principal in the second degree with the offences that his co-accused committed. So in determining the sentence each man has to serve I am not ascribing to him any accessorial liability in regard to offences committed by his co-accused. In this trial each man has only been charged with and convicted of, the offence which he personally perpetrated, saving, of course, the part Jarrett played in holding [the complainant] down in the back of the car at the quarry while Marr and then Button committed their offences upon her at that location.”[20]
(Emphasis added.)
[20]Button at 457
49Button makes it clear that physical presence/proximity in the element of “in company” in the offence under s 61J of the Crimes Act (NSW) is the same as physical presence/proximity in the element of “in company” in an offence under s 77B of the Act. In each case, if an accused is to be convicted as principal offender “in company” (of rape or aggravated home invasion), he would need to be physically present or proximate to the offence, either to embolden or reassure the other offenders or to intimidate the victim.
50In this case, the prosecution accepts that for the purposes of s 77B, it is necessary to establish that 3 offenders entered the residence as trespassers “in company” with one another. In other words, the prosecution accepts that in the circumstances found here, “persons acting as get away drivers (who did not enter the property) would not be “in company” with the offenders who entered the property.[21]
[21]Prosecution submissions at paragraph [6]
51Accepting that however, says nothing about persons who could be convicted on a complicity basis with the offenders who entered the home “in company”.
52The point can be illustrated by reference to the factual matrix in Button. If a person (person six) had agreed with one of the five offenders that the complainant would be raped “in company” with others, person six could be convicted on a complicity basis (s323(1)(c)), even if they were far away from the events in question.
53If person six had assisted, for instance by luring the complainant to the car or by holding her down while one of the five raped her, they could be convicted on a complicity basis even if they had not engaged in any acts of sexual penetration themselves (s 323(1)(a)). In such a case, the five offenders would be convicted as primary offenders under a rape charge, while person six would be convicted under s 323 as being deemed or taken to have committed the rape even though s/he didn’t actually physically penetrate anyone.
54The real substance of the submission on behalf of the accused is that the offence of aggravated home invasion can only be committed on a complicity basis if an additional element of physical presence is included. There are two major flaws with this argument.
55The first flaw is that if the argument is to be accepted, s323(3)(a) and s324(1) would have no work to do. The prosecution would be required to prove that every person involved in the commission of the offence (planners, look-outs, get-away drivers) also committed the offence by being physically present “in company” on entry to the home.
56The second flaw is that it seeks to bring in an additional fault element into s323(1) which does not exist in the words of the section. As the High Court said in Rohan:
“The plain language of s 323(1)(c) should be given effect according to its terms. There is no need to read in an additional fault element, beyond the fault elements that make up the offence that is the subject of the agreement. The additional fault element in Giorgianni– that the accused knew all of the essential facts which made what was done a crime – is apposite to s 323(1(a), which, like aiding and abetting, is a form of derivative liability (requiring the commission of a crime by another), but is inapposite to s 323(1)(c), which, like the doctrine of joint criminal enterprise, is a form of primary liability.”[22]
(Emphasis added.)
[22] At 308, paragraph [41]
57Pursuant to s 323(1)(a), a person is involved in the commission of an offence, if the person “intentionally assists, encourages or directs the commission of an offence”. This provision captures people like look-outs and get-away drivers. Such people would not be liable for having actually been “in company” with offenders under s77B. Effectively, their offence is derived from their involvement in the offending of others.
58In other words, on account of their involvement (by agreement or planning for instance), they are taken to have committed an aggravated home invasion, which they themselves did not commit, but was committed by others. As the Court of Appeal said in Gebregiorgis:
“We consider that a proper construction of the provisions leads inexorably to the view that liability under s 323(1)(a) is derivative. That view is supported by the terms of s 324B, which draws a distinction between the person who committed the offence and the person involved in the commission of the offence, one being the principal offender and the other the secondary offender (albeit that both are guilty of the offence).”[23]
(Emphasis added.)
[23] At 371, paragraph [45]
59Ms Swiney submitted “there is a tension between the general and wide scope of the complicity provisions at s 323, including s 323(3) and the asserted construction that s77B requires that a person physically enters in company”.[24]
[24] Defence submissions dated 14 August 2025 at paragraph [12]
60That tension so the argument goes, is the use of the words in 323(3) that a person “may be involved” in the commission of an offence even if they are not physically present. It was submitted that the use of the words “may” permit of flexibility so that, in effect this Court ought to find that physical presence is in fact required. The argument was illustrated by reference to the fact that the legislature did not use the word “must”.
61I consider that use of the word “must” in the section would make no sense. The provision would then read “A person must be involved in the commission of an offence, by act or omission (a) even if the person is not physically present when the offence, or an element of the offence, is committed.
62I consider that the proper construction of s 323(3) is that mere absence from the scene of the commission of an offence does not mean a person can’t be taken to have committed the offence (providing the other complicity provisions have been satisfied). As the High Court[25] said in Rohan:
“Sections 324(1), 323(1)(c) and 323(3)(b) combine to provide that if an offence is committed, a person who entered into an agreement, arrangement or understanding with another person to commit that offence is taken to have committed that offence and is liable to the maximum penalty for that offence, whether or not the person realised that the facts constituted an offence.”[26]
[25] Gaegler CJ, Gordon and Edelman JJ
[26]At paragraph [15]
63I consider that the above principle is equally applicable to the circumstances of this case. Each accused “who entered into an agreement, arrangement or understanding with another person to commit that offence is taken to have committed that offence and is liable to the maximum penalty for that offence, whether or not the person” was physically present at the time of the commission of the offence.
64The liability of the accused in that instance derives from s 323(1)(c). Therefore, the focus is on “agreement arrangement or understanding” with another person to commit aggravated home invasion, not on physical presence at the scene of the offence.
65If the prosecution proves that an offender[27] committed aggravated home invasion and establishes that each accused entered into an agreement with that offender, to commit the acts constituting that offence (together with others), then either accused could be convicted. That applies whether they were the get-away driver, or were playing Baccarat at Crown Casino, at the time the offence was committed.
[27]even if they are unknown or not being prosecuted
66In this case, the Crown relies on three alternative positions. In the first, Mr Hudson and Mr Pittari were physically present and in company with two or more offenders at each premises. In the second, they intentionally assisted, for instance as get-away drivers. In the third, they were planners in the sense that they entered into an agreement with one of the offenders who committed the aggravated home invasion. It is not necessary for the Crown to prove what role was played by each.
67As the High Court said in Rohan, section 324B of the Act provides that a person is guilty either as the person who committed the offence or as a person involved in the commission of the offence, but the trier of fact is unable to determine which applies:
“That is, where two or more persons entered into an agreement to commit an offence within the meaning of s 323(1)(c) and an offence was committed in accordance with that agreement, the jury need not be satisfied of what role each person played in the commission of the offence, provided that the acts committed were within the scope of the continuing agreement and the person had the state of mind required for the offence at the time of the agreement…..
…
…The things done, in accordance with the continuing agreement, which are necessary to constitute the crime are attributed to all parties to the agreement and they are all equally guilty of the crime regardless of the part played by each in its commission. Where the crime is committed, s 323(1)(c) should not be understood as permitting or requiring the parties to an agreement to commit the crime to be treated differently according to who did what.”[28]
(Emphasis added.)
[28]At paragraphs [35]-[36]
68The point can be understood by illustration. All participants in an armed robbery are liable to be convicted of armed robbery. That includes the get-away driver who never pointed a gun at a teller, the look-out who never entered the bank, the mastermind who planned the crime and agreed with or assisted the others, but was in another place when the crime was committed. Their liability arises under the complicity provisions, not under the offence of armed robbery itself. The acts of the person pointing the gun at the teller:
“…are attributed to all the parties to the agreement and they are all equally guilty of the crime regardless of the part played by each in its commission.”[29]
[29]Rohan at paragraphs [34]-[46]
69An example closer to the facts of the present case can be given. Take the case of a person who masterminds a series of aggravated home invasions, to enable cannabis to be stolen from people’s homes by multiple offenders. Suppose that person arranges for vehicles to be stolen, recruits participants for the entry into the premises, provides them with weapons, drives them to and from the homes, then takes or distributes the spoils of the enterprise. It cannot be the case that Parliament intended for that person to argue s/he is guilty only of home invasion (or some lesser offence) on the basis that did not enter the home, while the others are guilty of aggravated home invasion.
70That would be an incoherent application of the law which would enable those who mastermind and choreograph serious offences to argue they committed lesser crimes because they were not physically present. I reject such an interpretation as it is contrary to the letter and spirit of the complicity provisions in the Act.
Decision
71I accept the submissions on behalf of the prosecution that in order to succeed on a charge of aggravated home invasion on a complicity basis under s323(1)(a) or (c) of the Act, it is not necessary for the prosecution to establish that the accused was physically present and “in company” with other offenders at the scene of the crime.
72To succeed on the charge, the prosecution must satisfy the three stage test in Rohan, that is that:
(i)first, the accused entered into an agreement with another person or persons to do certain acts or omissions necessary to commit the offence of aggravated home invasion;
(ii)second, in accordance with (and within the scope of) that agreement, one or more parties to the agreement performs all of the acts or omissions necessary to commit the offence, in the circumstances necessary for the commission of that offence (that is one or more of the parties to the agreement entered a home with two or more others with the requisite intent, armed and people were present in the home);
(iii)third, at the time of entering into the agreement, the accused had the state of mind required for the commission of the offence of aggravated home invasion.
(b) The accused would then be liable under s 324(1), subject to any excuses or defences that may be available to them.
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