DPP v Gebregiorgis

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2023 0092

DIRECTOR OF PUBLIC PROSECUTIONS

ARON GEBREGIORGIS

and

TEAMRAT GEBREGIORGIS KASSA

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JUDGES:	EMERTON P, PRIEST and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	6 July 2023
DATE OF JUDGMENT:	14 July 2023
DATE OF REASONS:	14 July 2023
ORIGINATING PROCESS:	Case stated, Hollingworth J, Supreme Court of Victoria, 29 May 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 166

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CRIMINAL LAW – Case stated – Questions of law reserved for determination by Court of Appeal – Murder – Joint commission – Intention of secondary party – Whether secondary party must encourage primary offender to kill victim – Whether secondary party must agree with primary offender that victim be killed – Not necessary for prosecution to prove that secondary party encouraged primary offender to kill victim or agreed that victim would be killed – Crimes Act 1958 (Vic) ss 323(1)(a) and (c) – Questions answered accordingly.

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Counsel
DPP:	Ms E Ruddle KC with Mr N Hutton and Mr G Buchhorn
For A Gebregiorgis:	Mr C Carr SC
For T Gebregiorgis Kassa:	Ms G Morgan
Solicitors
DPP:	Ms A Hogan, Solicitor for Public Prosecutions
For A Gebregiorgis:	Stary Norton Halphen
For T Gebregiorgis Kassa:	Robinson Gill

EMERTON P:

I have had the considerable advantage of reading a draft of the judgment of Priest and Kaye JJA. I am grateful for their Honours’ clear exposition of the facts, the relevant provisions of the Crimes Act 1958 (‘Act’) and the submissions of the parties.
I agree with their Honours that both questions in the case stated must be answered ‘no’.
Hence, it is not necessary for the prosecution to prove that Aron Gebregiorgis (‘Gebregiorgis’) intentionally encouraged Teamrat Gebregiorgis Kassa (‘Kassa’) to kill the deceased (or vice versa); nor is it necessary for the prosecution to prove that Gebregiorgis entered into an agreement with Kassa that they (whether through the actions of one or the other, or both of them) would kill the deceased. It is sufficient that the encouragement by Gebregiorgis or Kassa and/or the agreement between Gebregiorgis and Kassa was to cause really serious injury to the deceased.
This flows from the language of the relevant provisions of the Act. I agree with and respectfully adopt the textual analysis in [64]–[67] in the judgment of Priest and Kaye JJA.
Nonetheless, I accept the submission made by counsel for Gebregiorgis and Kassa that the enactment of div 1 pt II of the Act in 2014[1] (ss 323–324C) effected fundamental changes to the law of complicity. In line with the recommendations of the Simplification of Jury Directions Project report authored by Weinberg JA in 2012 (‘Weinberg report’), the doctrines at common law of acting in concert, joint criminal enterprise and common purpose (including extended common purpose) have been expressly abolished, as has the common law of complicity in relation to aiding, abetting, counselling or procuring.[2]
[1]By the Crimes Amendment (Abolition of Defensive Homicide) Act 2014.
[2]Act, s 324C.
In my view, the concept of ‘involvement’ in the commission of an offence[3] is clearly based on the Weinberg report, which recognised the need to significantly reform the substantive law in order to simplify jury directions, and proposed a ‘new model’ for liability for complicity.[4] As counsel for Gebregiorgis and Kassa pointed out, that ‘new model’, so far as group activity is concerned, is based upon the law of conspiracy. According to the Weinberg report, group activity in which an accused has entered ‘into an agreement, arrangement or understanding with another person to commit the offence or an offence of the same general character’ is
in truth, a ‘completed conspiracy offence’. That is to say that liability under this ground will be made out if a conspiracy has been proved which has resulted in the commission of the substantive offence which was the subject of the conspiracy.[5]

[3]Ibid s 323(1).

[4]Weinberg report (August 2012) 99 [2.288].

[5]Ibid 97 [2.279].

The Weinberg report further states that the fault element required for this mode of participation will be ‘in line with that specified for traditional forms of accessorial liability’ in Giorgianni v The Queen,[6] because it is implicit in the terms ‘agreement, arrangement or understanding’ that there must be a specific degree of knowledge, and intent, in order to fall within the notion of a conspiracy.[7]
[6](1985) 156 CLR 473 (‘Giorgianni’).
[7]Weinberg report (August 2012) 97–8 [2.280].
I observe in this context that Giorgianni did not require knowledge or intention of the consequence of death to be established in order to make out the fault element for the offence there in issue.[8] More fundamentally, however, while I accept that the enactment of ss 323–324C of the Act was intended to effect a significant conceptual shift, I do not accept that Gebregiorgis and Kassa can avoid liability as complicit to the offence of murder unless the agreement, arrangement or understanding between them was to complete the offence of conspiracy to murder. The plain language of the Act says otherwise.

PRIEST JA

[8](1985) 156 CLR 473, 495 (Mason J), 501–3 (Wilson, Deane and Dawson JJ).

KAYE JA:

Introduction

Gebregiorgis and Kassa are brothers. An indictment filed in the Supreme Court charges them with the murder of Alier Riak (charge 1).[9] They are also charged, together with Mageri Sari (‘Sari’), with intentionally causing injury to Kuol Riak (charge 2). The circumstances in which they came to be charged are these.
[9]The indictment alleges murder at common law. There is no charge under s 3A of the Crimes Act 1958.
On 13 March 2022, Gebregiorgis, Kassa, Sari and three others had been at an event at the Watermark Hotel, located in Bourke Street, Docklands. Alier Riak, Kuol Riak and some of their friends had also attended the event.
In the early hours of that morning, as the crowds were dispersing after the event concluded, Alier Riak, Kuol Riak and their friends were standing between some cars that were parked in Bourke Street. They were approached by Gebregiorgis, Kassa, Sari and three others. Kassa and Sari each produced a knife. They started an attack on Kuol Riak, who retreated. As he retreated backwards, Kuol Riak fell over twice. He was attacked first by Kassa and then by Sari.
Alier Riak followed the attackers along Bourke Street, himself followed by Gebregiorgis. He intervened in the attack on Kuol Riak, grabbing Kassa from behind and throwing him to the ground. At that point, Gebregiorgis produced a knife and attacked Alier Riak, swinging a knife at him several times. As a result, Alier Riak retreated into a nearby park. Kassa caught up to Alier Riak at the entrance to the park and stabbed him once in the chest. Gebregiorgis then approached and also stabbed Alier Riak once to the chest. Alier Riak then escaped by running further into the park.

As Alier Riak ran away, he was chased by Kassa and Gebregiorgis. He tripped and fell to the ground. Kassa was quickly on him and held him down. Gebregiorgis then caught up to where they were, as did other members of both groups. Gebregiorgis then stabbed Alier Riak a further number of times. There is no evidence that anyone other than Gebregiorgis and Kassa stabbed him.
Having been stabbed, Alier Riak was able to walk back towards the parked cars, before collapsing on the roadway. He was helped by his friends and emergency services, but died as he was being transported to hospital.
A pathologist determined that Alier Riak had been stabbed eight times. There were two fatal wounds: one to the left femoral artery and one to the pericardial sac. He also had an incised wound on the back of his right arm. The remaining stab wounds were less serious.
The prosecution case is that Kassa and then Gebregiorgis each stabbed Alier Riak once to the chest. They then pursued him into the park, where Kassa caught him and held him, while Gebregiorgis stabbed him a number of times.
The prosecution case for murder is put on three alternative bases:
•first, both Gebregiorgis and Kassa are primarily liable for the murder of Alier Riak;
•secondly, one of them is primarily liable for the murder, and the other is complicit pursuant to s 323(l)(a) of the Act by intentionally encouraging the primary offender to commit the offence of murder; or
•thirdly, one of them is primarily liable for the murder, and the other of them is complicit pursuant to s 323(l)(c) of the Act by entering into an agreement with the primary offender for him to commit the offence of murder.
There is no dispute between the parties as to the elements of murder in the case of a principal offender.
Pursuant to s 199 of the Criminal Procedure Act 2009 (‘CPA’), Gebregiorgis and Kassa sought a pre-trial ruling from the trial judge on the following question: ‘what are the elements of statutory complicity under s 323(l)(a) and (c) that must be proved by the prosecution in respect of murder?’.
In written submissions to the trial judge, the prosecution contended that Gebregiorgis would be liable for murder under s 323(l)(a) if, at the time he encouraged Kassa to stab Alier Riak, Gebregiorgis intended that Kassa, by a conscious, voluntary and deliberate act, performed without lawful justification or excuse, would stab the deceased with intent to thereby kill him or cause him a really serious injury. The prosecution contend that Gebregiorgis is liable for murder under s 323(1)(c) if, at the time he entered into an agreement with Kassa to stab Alier Riak, he intended that Kassa, by a conscious, voluntary and deliberate act, performed without lawful justification or excuse, would stab Alier Riak with intent to thereby kill him or cause him a really serious injury. Alternatively, Kassa is said to be liable under s 323(1)(a) or (c) on a similar complicity basis.
Counsel for Gebregiorgis and Kassa contend that, for liability to arise under s 323(1)(a) or (c), the secondary party must at the relevant time have intended that the principal, by a conscious, voluntary and deliberate act, performed without lawful justification or excuse, would stab at the relevant time with intent to thereby kill him.
Given the conflicting positions of the parties, and uncertainty as to which position is to be preferred, on 29 May 2023 the trial judge reserved two questions of law for determination by the Court of Appeal pursuant to s 302 of the CPA (‘the case stated’). The two questions were:[10]
1For the prosecution to establish that a secondary party is guilty of murder on the basis that he/she was involved in the commission of the offence of murder pursuant to s 323(1)(a) of [the Act], by reason of having intentionally encouraged the primary offender to commit the offence of murder, is it necessary for the prosecution to prove that the secondary party intentionally encouraged the primary offender to kill the deceased?
2For the prosecution to establish that a secondary party is guilty of murder on the basis that he/she was involved in the commission of the offence of murder pursuant to s 323(1)(c) of [the Act], by reason of having agreed with the primary offender to commit the offence of murder, is it necessary for the prosecution to prove that the secondary party entered into an agreement with the primary offender that they (whether through the actions of one or other, or both of them) would kill the deceased?
[10]Emphasis added.
For the reasons that follow, we would answer the questions in the case stated as follows:
1No.
2No.

Submissions of the parties

The Director of Public Prosecutions

Counsel for the Director submitted that, under s 323(1)(a), the prosecution must prove that the secondary party encouraged the primary party to stab Alier Riak with a knife (thereby killing him or causing him a really serious injury), while the primary party was intending to kill Alier Riak or cause him a really serious injury; and, at the time he encouraged the primary party to stab Alier Riak, the secondary party also intended that the stab would kill or cause really serious injury. Counsel submitted that, under s 323(1)(c), the prosecution must prove that the secondary party entered into an agreement with the primary party that the primary party would stab Alier Riak (thereby killing him or causing him a really serious injury), while the primary party intended to kill Alier Riak or cause him really serious injury; and, at the time that the secondary party entered into that agreement, the secondary party intended that Alier Riak would be killed or suffer a really serious injury.[11]
[11]Counsel relied on R v Novakovic and Ors (Rulings No 2–4) [2019] VSC 339 (Croucher J) (‘Novakovic’).
In the context of this case, counsel submitted, ‘the offence’ referred to in ss 323(1)(a) and (c) is murder. But, in order to be liable for murder, the secondary party’s encouragement or agreement to kill is not required. Instead, the act causing death must be encouraged or agreed, at a time when both the primary offender and the secondary offender intend to kill or cause really serious injury.
Counsel for the Director submitted that the terminology used in ss 323(1)(a) and 323(1)(c) largely reflects the terms in which the common law concepts of aiding and abetting and joint criminal enterprise are explained to juries. Those provisions were intended to largely simplify and clarify the common law, but not to entirely discard it. As counsel put it in oral submissions, the legislature did not intend ‘to throw the baby out with the bath water’. In support of that submission, counsel referred to the explanatory memorandum for the Crimes Amendment (Abolition of Defensive Homicide) Bill 2014 and the Second Reading Speech of the Attorney-General. Having done so, counsel submitted that the requirement, in para (a), that the assistance, encouragement or direction be intentional, reflects the principle in Giorgianni;[12] that is, that the secondary offender’s conduct must be intentionally aimed at the commission of the acts that constitute the offence. Similarly, counsel submitted that s 323(1)(c) reflects the common law principle that the secondary party must share a common purpose or agreement to commit the particular crime.[13]
[12]Giorgianni v The Queen (1985) 156 CLR 473, 506 (Wilson, Deane and Dawson JJ) (‘Giorgianni’).
[13]Under the heading Division 2—Complicity reform, the Explanatory Memorandum contains the following:
New section 323(1)(a) covers the behaviour that would be covered by aiding, abetting, counselling and procuring at common law. The reference to ‘intentionally’ is consistent with the fault element required by Giorgianni v R (1985) 156 CLR 473. That is, the person must have intended to assist etc. another to commit a particular offence.
New section 323(1)(c) covers group activity that would be covered by the common law doctrines of acting in concert, joint criminal enterprise and common purpose.
Further, counsel for the Director submitted that the contention advanced by counsel for Gebregiorgis and Kassa — that the secondary party must not only intend or agree that the acts constituting the offence take place, but must also intend the proscribed result — would, in cases involving involuntary killing such as manslaughter and culpable driving, have the effect that for the secondary offender to be guilty, he or she must intend (in the case of manslaughter) not only that the primary offender act in a manner which is unlawful and dangerous or grossly negligent, but also that such conduct should cause the death of the victim.

Gebregiorgis and Kassa

Counsel for Gebregiorgis and Kassa submitted that, since the offence of murder requires the killing of another, an agreement to commit murder cannot be anything less than an agreement to kill; and to intentionally encourage the commission of murder cannot be anything less than the intentional encouragement of the killing of another. Where the prosecution seeks to establish liability for murder pursuant to s 323(1)(a), counsel submitted, it is not sufficient to establish that the accused intentionally encouraged another ‘to stab’ or ‘to cause really serious injury’. Only intentionally encouraging another to murder (that is, to kill) is sufficient. And where the prosecution seeks to establish liability for murder pursuant to s 323(1)(c), it is not sufficient to establish that the accused entered into an agreement ‘to stab’ or to cause really serious injury. Only entering into an agreement to murder (that is, to kill) is sufficient.[14]
[14]Counsel sought to rely on DPP v Hansen (a pseudonym) [2020] VSCA 307, [43] (Maxwell P and T Forrest JA) (‘Hansen’) and distinguish Novakovic.
In support of those propositions, counsel for Gebregiorgis and Kassa submitted that the provisions of pt 2, div 1(1) of the Crimes Act 1958 (ss 323 to 324C), constitute a ‘code’, specifically replacing the various forms of complicity at common law. Thus, s 324C provides — with one exception (relating to the circumstances in which a person may withdraw from an offence) — that the law of complicity in relation to aiding, abetting, counselling or procuring the commission of an offence, and the doctrines at common law of acting in concert, joint criminal enterprise and common purpose, were specifically abolished. Moreover, counsel submitted, the language in which the various forms of complicity contained in s 323(1) are described is relevantly different to the terms in which the common law concepts were described. Counsel also referred to passages of the report entitled Simplification of Jury Directions Project: A Report to the Jury Directions Advisory Group, prepared by Justice Mark Weinberg and published in August 2012 (‘the Weinberg report’), which, it was submitted, further support the intention of the amending legislation to entirely abrogate the common law principles of complicity, and to replace them with a freestanding code. In advancing that submission, counsel relied on the principle of statutory construction that a statutory code should be construed according to its natural meaning and without any presumption that its language is intended to do no more than restate the common law.[15]
[15]Stuart v The Queen (1974) 134 CLR 426, 437 (Gibbs J); Pickett v Western Australia (2020) 270 CLR 323, 337–8 [22]–[25]; Namoa v The Queen (2021) 271 CLR 442, 447 [11].
Counsel further submitted that, in its ordinary meaning, ‘offence’ as it appears in ss 323(1)(a) and (c), refers to and incorporates all of the elements that constitute the particular offence in the commission of which the accused person is alleged to have been involved. Thus, where the ‘offence’ requires the offender to cause a particular result, para (a) requires that the secondary offender intentionally assist, encourage or direct the primary offender to cause that result. In the case of a murder, s 323(1)(a) requires that the prosecution must prove that the secondary offender intentionally assisted, encouraged or directed the primary offender to kill the victim. Accordingly, counsel submitted, the prosecution must prove that the secondary offender intended the death of the victim, and not merely that the victim suffer really serious injury.
Similarly, counsel submitted, s 323(1)(c) — which provides for derivative, not primary, liability — requires that the secondary offender enter into an agreement, arrangement or understanding with another person to commit the particular offence in question. As the crime of murder is not complete unless the victim is killed, it follows that a person may only agree to the commission of a murder if that person agrees that the victim be killed. In support of that submission, counsel referred to a passage in the Weinberg report, in which it was proposed that the form of criminal liability, contained in para (c), be equivalent to that of a ‘completed conspiracy offence’.[16]
[16]Weinberg report, [2.279].

Discussion

Given the manner in which the questions in the case stated are framed, it is convenient to refer to the person whose act was the direct cause of Alier Riak’s death as the ‘primary offender’, and the person allegedly complicit under ss 323(1)(a) or (c) as the ‘secondary party’.
Any analysis must begin with s 324(1) of the Act, which provides that, if an indictable 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.
The circumstances in which a person ‘is involved in the commission of an offence’ are spelled out in s 323(1). In the present case, the prosecution relies on paragraphs (a) and (c) of subsection (1), which are in the following terms:
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
…
(c) enters into an agreement, arrangement or understanding with another person to commit the offence; …
Expressed in simple terms, in a case such as the present, ss 323(1) and 324 in combination dictate that a person who has intentionally assisted, encouraged or directed the commission of the offence of murder; or who entered into an agreement, arrangement or understanding with another to commit the offence of murder; is taken to have committed that offence of murder.
Significantly, so long as the provisions of ss 323 and 324 are engaged, it will not be necessary for the prosecution in the present case to establish which of Gebregiorgis or Kassa actually inflicted the fatal wound, since s 324B provides that a person may be found guilty of the offence (of murder) by virtue of s 324
if the trier of fact is satisfied that the person is guilty [of murder] either as the person who committed the offence [of murder] or as a person involved in the commission of the offence [of murder] but is unable to determine which applies.
When determining the boundaries of complicity statutorily created by ss 323 and 324, it needs to be borne in mind that s 324C evinces a clear legislative intention to abolish common law concepts of aiding and abetting, and counselling and procuring, and with respect to the doctrines of acting in concert, joint criminal enterprise, common purpose and extended common purpose. Thus, s 324C provides:
324CAbolition of certain aspects of complicity at common law
(1) The law of complicity at common law in relation to aiding, abetting, counselling or procuring the commission of an offence is abolished.
(2)The doctrines at common law of acting in concert, joint criminal enterprise and common purpose (including extended common purpose) are abolished.
Note
The common law concerning the circumstances in which a person may withdraw from an offence in which the person would otherwise be complicit is not abolished by this section.
For the purposes of the present case, it is not disputed that the act causing Alier Riak’s death was a wound inflicted with a knife, whether that be the wound to the left femoral artery or the wound to the pericardial sac. Further, it is not disputed that the act causing death was the infliction of a knife wound by Gebregiorgis or Kassa (or one or other or both of them), whether that be the infliction of the wound to the left femoral artery or to the pericardial sac. Finally, it is not disputed that both Gebregiorgis and Kassa — and only them — stabbed Alier Riak in the chest. Self-evidently, one of those acts of stabbing Alier Riak in the chest must have caused the injury to the pericardial sac.
To risk repetition, the prosecution asserts that Gebregiorgis might be found guilty of murder on the basis that he intentionally encouraged the commission of the offence of murder by Kassa, or entered into an agreement with Kassa to commit the offence of murder; and that Kassa might be found guilty of murder on the basis that he intentionally encouraged the commission of the offence of murder by Gebregiorgis, or entered into an agreement with Gebregiorgis to commit the offence of murder.
For the ‘primary offender’ to be guilty of murder, he must have caused Alier Riak’s death by a conscious, voluntary and deliberate act, done without lawful justification or excuse, with the intent to kill him or cause him really serious injury. The secondary party will be involved in the commission of that offence of murder if he intentionally encouraged the commission of that offence of murder, or entered into an agreement with the primary offender to commit that offence of murder.
Both questions posed for this Court’s consideration are, however, directed at the state of mind of the ‘secondary party’ who is said to have encouraged the primary offender’s alleged murder of Alier Riak, or to have entered into an agreement with the primary offender to commit the alleged murder (although we note that, for the purposes of liability for murder under s 323(1)(c), it may be more accurate conceptually to describe both Gebregiorgis and Kassa as primary offenders or principals, rather than ‘secondary’ parties).[17]
[17]See [58] below.
Turning to their proper construction, we note that the genesis of the provisions of the Act dealing with complicity (ss 323 to 324C) was described in Rohan[18] (an exercise which we need not repeat). Clearly, they evince a legislative intention to abrogate common law concepts (although some vestiges of the common law — withdrawal from the commission of an offence being an example — remain). Plainly, their proper construction will dictate the answers to be given to the questions posed in the case stated.
[18]Rohan (a pseudonym) v The King [2022] VSCA 215, [67]–[70] (Emerton P, Kyrou and T Forrest JA) (‘Rohan’).
Crennan J summarised the principles which must inform their construction in Northern Territory v Collins:[19]
The applicable principles of construction can be shortly stated. Construction must begin with a consideration of the text itself. The meaning of the text cannot always be determined in isolation from its context, which includes the general purpose and policy of the provision, in particular the mischief which the statute was designed to remedy. Secondary material seeking to explain the words of a statute cannot displace the clear meaning of the text of a provision, not least because such material may confuse what was ‘intended ... with the effect of the language which in fact has been employed’.
[19](2008) 235 CLR 619, 642 [99] (citations omitted).
As the authorities make clear, in construing the language of the relevant provisions, it is necessary to have regard to their context — including their historical context — and purpose.[20]
[20]See, e.g., SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, 368 [14] (Kiefel CJ, Nettle and Gordon JJ); Rohan, [57].
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).
Moreover, the view that liability under s 323(1)(a) is derivative is reinforced by the use of the terms ‘assists, encourages or directs’ when directed to the commission of an offence. Although, for the purposes of construction, those words must be treated as ordinary English words, it cannot be ignored that they are terms traditionally used to describe accessorial liability at common law as an aider and abettor — a principal in the second degree. As to that, having reviewed the authorities, Cussen ACJ observed in Russell:[21]
Taking these authorities as a whole, I am of opinion (1) that if a person present at the commission of a crime in the opinion of the jury on sufficient evidence shows his assent to such commission, he is guilty as a principal, and (2) that assent may in some cases be properly found by the jury to be shown by the absence of dissent, or in the absence of what may be called an effective dissent. Various words, such as ‘aiding’, ‘abetting’, ‘comforting’, ‘concurring’, ‘approbating’, ‘encouraging’, ‘consenting’, ‘assenting’, ‘countenancing’, are to be found in the authorities. A principal in the second degree is sometimes defined as a person present aiding or abetting, but in this context each of these words has, as I have indicated, a wide meaning. A common dictionary meaning of ‘abetting’ is ‘encouraging’, or ‘countenancing’; and this is to be remembered when the words ‘aiding or abetting’ alone are used. All the words abovementioned are, I think, instances of one general idea, that the person charged as a principal in the second degree is in some way linked in purpose with the person actually committing the crime, and is by his words or conduct doing something to bring about, or rendering more likely, such commission.
[21]R v Russell [1933] VLR 59, 66–7. See also Giorgianni v The Queen (1985) 156 CLR 473, 493 (Mason J).
At common law, in order to fix an accused person with accessorial liability by way of aiding and abetting, the prosecution needed to prove that he or she directly or indirectly expressed a willingness to assist the principal offender if required, even if his or her willingness to provide assistance did not in fact assist the principal, or the encouragement did not in fact encourage the principal.[22] For the purposes of complicity under s 323(1)(a), that position has been legislatively entrenched by s 323(2). Further, although an aider and abettor was one who was present when the offence was committed, any necessity for presence has been removed by 323(3). Thus, ss 323(2) and (3) of the Act provide:
[22]See R v Makin (2004) 8 VR 262, 266–7 [14]–[15] (Ormiston JA); 275 [44] (Callaway JA).
(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.
In this case, for liability to be attracted under s 323(1)(a), the prosecution must prove that Gebregiorgis or Kassa (or one or other or both of them) intentionally encouraged the other to commit the offence of murder. We consider that — as was the position at common law — an accused person cannot intentionally encourage another to commit an offence unless he or she has knowledge of the essential facts of the principal offence. Those essential facts include knowledge by the secondary party of the relevant state of mind or intention of the primary offender.
As Wilson, Deane and Dawson JJ made clear in Giorgianni:[23]
Intent is an ingredient of the offence of aiding and abetting … and knowledge of the essential facts of the principal offence is necessary before there can be intent.
[23]Giorgianni, 504–5.
A clear exposition of the common law principle is to be found in the reasons for judgment of Hunt J in Stokes:[24]
To establish that an accused is an accessory to the commission of a crime by another person (whether or not he is a co-accused), by aiding and abetting him, the Crown must establish:
(1) the commission of that crime by the principal offender, and
(2) that the accused was present at the time when the crime was committed, and
(3) that … the accused knew all the essential facts or circumstances which must be established by the Crown in order to show that the crime was committed by the principal offender (whether or not the accused knew that they amounted to a crime), and
(4) that, with that knowledge, he intentionally assisted or encouraged the principal offender to commit that crime.
The accessory’s intention to assist or encourage the principal offender must be based upon that knowledge. Those propositions were authoritatively stated in Giorgianni v The Queen (1984) 156 CLR 473 at 487–488, 494, 500, 504–505, 506–507 …; see also Yorke V Lucas (1985) 158 CLR 661 at 667.
[24]R v Stokes & Difford (1990) 51 A Crim R 25, 37–8 (‘Stokes’).
Hunt J added[25] that
it is usually more appropriate to speak of the accessory’s knowledge (or awareness) of the principal offender’s intention to do an act with a particular state of mind at the time when the accessory aids, abets, counsels or procures the principal offender to commit the crime in question than it is to speak of the accessory’s knowledge of the act done by the principal offender with that state of mind. The knowledge will usually crystallise in the accessory’s mind before he involves himself as an accessory to that crime.
In the case of an accessory who is present and who intentionally gives the principal offender assistance and encouragement in relation to his commission of that crime, it may well be that either or both of them has or have already been involved in an assault upon the victim. The accused charged with being an accessory — having become aware of the principal offender’s intentions no doubt by reason of his involvement in the assault up to that time — only at that stage, and with that knowledge, intentionally assists and encourages the principal offender — for example, by himself continuing to assault the victim. That was the basis of the decision in Mohan.^[[26]] But even in such a case, it is strictly with the accessory’s awareness of the principal offender’s intentions for the future that he then encourages and assists him, rather than with his awareness (except in the loosest sense) of the actions done by the principal offender in the past.
[25]Ibid 38–9.
[26]Mohan v The Queen [1967] 2 AC 187.
In Likiardopoulos,[27] the applicant was convicted by a jury of murder. At trial, the prosecution alleged that the applicant acted together with others to beat the victim with the intention of inflicting really serious injury; or, alternatively, that he counselled and procured others to beat the victim with that intention; in circumstances where the deceased had been held captive at the home of two of the accused for about two days, during which he was repeatedly beaten by a number of persons, including the applicant. The applicant was not present in the immediate vicinity at all times when the victim was under attack. It was open to the jury on the evidence to conclude that the victim’s death had been caused by the beatings, although no particular act, at any particular time, could be ascribed to any particular individual as being causative of death.
[27]Likiardopoulos v The Queen (2010) 30 VR 654 (Buchanan, Ashley and Tate JJA) (‘Likiardopoulos’).
Seeking leave to appeal against conviction, the applicant contended, first, that the trial judge erred by directing the jury that the applicant need not know or believe that death will result from the acts of the principal (or principals); and, secondly, in failing to direct that the applicant ‘must be shown to have intentionally counselled or procured the principal(s) to assault the deceased knowing or believing that the actions of the principal(s) would cause death’. Counsel submitted that the actus reus was not just the assault (or assaults), but the assault (or assaults) causing death.[28]
[28]Ibid 673 [79].
Evoking parallels with the present case, the Court in Likiardopoulos expressed the question to be decided as follows:[29]
The question raised by the applicant is this: what were the essential circumstances of the offence of which the applicant must have had knowledge? Specifically, was it enough that he knew or believed that the principal(s) must commit assaults with an intention of doing the victim really serious injury? Or must he have known or believed that the action of the principal(s) would in fact cause death?
[29]Ibid 674 [81].
Drawing on statements of principle derived from a number of authorities — including those of Wilson, Deane and Dawson JJ in Giorgianni, and that of Hunt J in Stokes — the Court concluded that it was enough to fix the applicant with liability for murder as a counsellor and procurer if he knew or believed that the principal (or principals) would commit assaults with an intention of doing the victim really serious injury.[30]
[30]Ibid 674 [82].
The statements of principle applied in Likiardopoulos reflect the fundamental proposition that, in order that a secondary offender be liable for an offence, the secondary offender must know each element of that offence, which necessarily includes the knowledge and intention of the principal offender. There is nothing in the wording of s 323(1)(a) which would support or reflect any departure from that underlying basic principle. Rather, the requirement that, in order to be involved in the commission of an offence, the secondary offender must ‘intentionally’ assist, encourage or direct the commission of the offence reflects that fundamental and longstanding principle. That proposition is further reinforced by s 324, which, as with the common law, equates the liability of the secondary offender with that of the primary offender.
It follows that the construction of s 323(1)(a) must be informed by the principles to be derived from cases such as Giorgianni, Stokes and Likiardopoulos. Hence, in this case, for Gebregiorgis or Kassa to be liable as a ‘secondary party’ under s 323(1)(a) for the murder of Alier Riak committed by the other, ‘principal offender’, the prosecution must prove to the criminal standard that:
•first, the secondary party knew or believed that the principal offender was going to perform (or was committing) an act directed to Alier Riak — in this case the infliction of injury with a knife — with the intent necessary for murder; that is, an intent to kill or cause really serious injury;
•secondly, with that knowledge or belief, the secondary party intentionally encouraged the principal offender to perform that act with the intent necessary for murder; and,
•thirdly, that act caused Alier Riak’s death.[31]
[31]See Novakovic, [9], [289]–[291], and cf [356].

That conclusion applies, with even greater force, to the form of criminal responsibility prescribed by s 323(1)(c). By way of contrast to the form of complicity created by paragraph (a) — which, as we have indicated, is a form of derivative liability — we consider that, properly understood, the species of complicity provided for in s 323(1)(c) is a form of primary liability arising from a type of agency, whereby a person ‘is involved in the commission of the offence’ if he or she ‘enters into an agreement, arrangement or understanding with another person to commit the offence’.[32]
[32]See Osland v The Queen (1998) 197 CLR 316, 343-4 [75] (McHugh J); 383 [174] (Kirby J; 402 [217] (Callinan J).
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.[33] So much is clear from Mitchell, in which Gordon, Edelman and Steward JJ observed:[34]
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’.[35] It is therefore essential to identify what acts and omissions the parties agreed upon.[36] The agreement need not be express and may be an inference drawn from the parties’ conduct,[37] but it must be subjectively appreciated by the accused.[38] The scope of such an agreement has therefore been expressed as involving matters that each party subjectively considered. In this respect, ‘it is essential to identify what the parties did agree upon and what it was that each contemplated might occur’,[39] which requires consideration of whether each party contemplated the criminal acts ‘as a possible incident of the execution of their agreement’.[40] But the jury must be satisfied that each party subjectively agreed (authorised or assented) to the conduct, including the criminal act. Hence, the ‘true position’ for nearly two centuries has been that ‘if one of the [parties to the agreement] goes beyond what has been tacitly agreed as part of the common enterprise, [the other party] is not liable for the consequences of that unauthorised act’.[41]
Joint criminal enterprise is a principle of primary liability based on a form of agency.[42] The acts of the perpetrator that are within the scope of the agreement, and therefore done with the authority of the other parties, are attributed to the other parties to the agreement. That is, ‘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’.[43] 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.[44] 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’.[45]
[33]See Novakovic, [91].
[34]Mitchell v The Queen (2023) 407 ALR 587, 599–600 [54]–[55] (emphasis added) (‘Mitchell’).
[35]Miller [Miller v R (2016) 259 CLR 380] at [4]. See also McAuliffe (SP) v R (1995) 183 CLR 108 at 114; 130 ALR 26 at 30 (McAuliffe); Gillard v R (2003) 219 CLR 1; 202 ALR 202; [2003] HCA 64 (Gillard) at [111].
[36]Gillard at [124].
[37]Miller at [4].
[38]McAuliffe at CLR 114; ALR 30.
[39]Gillard at [124] (emphasis in original).
[40]Miller at [4].
[41]R v Anderson [1966] 2 QB 110 at 118–19; [1966] 2 All ER 644 at 647. See also R v Collison (1831) 4 Car & P 565 at 566; 172 ER 827 at 828; R v Pearce (1929) 21 Cr App R 79 at 80–1; R v Lovesey [1970] 1 QB 352 at 356; [1969] 2 All ER 1077.
[42]IL v R (2017) 262 CLR 268; 345 ALR 375; [2017] HCA 27 (IL v R) at [29], [103], [146]–[149] (IL v R); O’Dea v Western Australia (2022) 273 CLR 315; 96 ALJR 710; 403 ALR 200; [2022] HCA 24 at [55]. See also Kadish, “Complicity, Cause and Blame: A Study in the Interpretation of Doctrine” (1985) 73 California Law Review 323 at 354; Dressler, “Reassessing the Theoretical Underpinnings of Accomplice Liability: New Solutions to an Old Problem” (1985) 37 Hastings Law Journal 91 at 110–11.
[43]Macklin, Murphy, and Others’ Case (1838) 2 Lewin 225 at 226; 168 ER 1136 at 1136 (Macklin, Murphy, and Others’ Case).
[44]Osland v R (1998) 197 CLR 316; 159 ALR 170; [1998] HCA 75 (Osland) at [93]. See also at [174], [257]; IL v R at [30], [34], [40], [66], [74], [103], [146].
[45]McAuliffe at CLR 114; ALR 30.

In the passage from Mitchell set out above, Gordon, Edelman and Steward JJ referred with apparent approval the following exposition of principle by McHugh J in Osland:[46]
Where the parties are acting as the result of an arrangement or understanding, there is nothing contrary to the objects of the criminal law in making the parties liable for each other's acts and the case for doing so is even stronger when they are at the scene together. If any of those acting in concert but not being the actual perpetrator has the relevant mens rea, it does not seem wrong in principle or as a matter of policy to hold that person liable as a principal in the first degree. Once the parties have agreed to do the acts which constitute the actus reus of the offence and are present acting in concert when the acts are committed, the criminal liability of each should depend upon the existence or non-existence of mens rea or upon their having a lawful justification for the acts, not upon the criminal liability of the actual perpetrator. So even if the actual perpetrator of the acts is acquitted, there is no reason in principle why others acting in concert cannot be convicted of the principal offence. They are responsible for the acts (because they have agreed to them being done) and they have the mens rea which is necessary to complete the commission of the crime.
[46]Osland v The Queen (1998) 197 CLR 316, 150 [93].
Consistently with established principle, we consider that the proper construction of s 323(1)(c) leads to the conclusion that an accused person will be liable under s 323(1)(c) if, first, he or she enters into an agreement (arrangement or understanding) with another person (or persons) to commit an offence; secondly, in accordance with the agreement, one or more parties to the agreement performs all of the acts necessary to commit the offence charged; and, thirdly, the accused person has the state of mind required for the commission of the relevant offence at the time of entering into the agreement.
In the circumstances of this case, therefore, for Gebregiorgis or Kassa to be liable as a ‘secondary party’ under s 323(1)(c) for the murder of Alier Riak committed by the other, ‘principal offender’, the prosecution must prove to the criminal standard that:
•first, Gebregiorgis or Kassa entered an agreement to commit the offence of murder, in that they agreed to perform an act or acts directed to Alier Riak — in this case the infliction of injury with a knife — with the intent necessary for murder, that is, an intent to kill or cause really serious injury; and
•secondly, that either Gebregiorgis or Kassa actually performed the act causing death with the intent necessary for murder, being an intent to kill or cause really serious injury.[47]
[47]See Novakovic, [277]–[283].
These conclusions conform with, and are based on, the structure of the provisions in pt 2, div 1(1) of the Act, and the terms in which ss 323 and 324 are expressed.
At the risk of repetition, s 324 specifically applies where it is not alleged or proven that the ‘secondary party’[48] performed the relevant actus reus of the offence (in this case, inflicted the particular stab wound that caused death). In such a case, where such a person has been ‘involved in the commission of the offence’ that person is taken to have committed ‘the offence’.
[48]See [32] above.
Section 323(1) then defines the circumstances in which such a person is taken to have been ‘involved in the commission of [the] offence’. It provides, in para (a), that the assistance, encouragement or direction by the secondary party to commit the offence must be intentional. The offence of murder is committed where an offender (the primary offender) performs an act(s), with the intention of killing, or causing really serious injury to the victim, and which act(s) result in the death of the victim. Thus, in the case of murder, the secondary party will be ‘involved in the commission of [that] offence’ if the secondary party intentionally assisted, encouraged or directed the doing of an act which causes the death of the victim, with the intention to kill the victim or cause the victim really serious injury.
By s 323(1)(c), a person is involved in the commission of an offence if that person enters into an agreement, arrangement or understanding with another person ‘to commit the offence’. In the case of murder, if the primary offender and the secondary party enter into an agreement, arrangement or understanding to cause really serious injury to a victim; and if, pursuant to, and within the scope of, that agreement, the primary offender attacks the victim with the intention of causing him or her really serious injury, and in so doing causes the victim’s death, the primary offender is guilty of murder. The primary offender would have committed the offence of murder by acting within the scope and contemplation of the agreement entered into with the secondary party; that is, that the victim be set upon with the intention of causing the victim really serious injury. In those circumstances, ss 323(1)(c) and 324 impose criminal liability on the secondary party as a person ‘involved in the commission of the offence’, he or she having entered into an agreement, arrangement or understanding with the primary offender to commit that offence.
That construction of s 323(1)(a) and (c) is reinforced by s 324B, which provides that a person may be found guilty of an offence by virtue of s 324 — that is, by virtue of being involved in the commission of the offence — if the trier of fact is satisfied that the person is guilty either as the person who actually committed the offence, or as a person ‘involved’ in the commission of the offence, but the trier of fact is unable to determine which. That provision would be unworkable if, as counsel for Gebregiorgis and Kassa contended, the requisite mens rea for the commission by a primary offender of a particular offence (such as murder) could be different to the requisite mens rea of the secondary party for that offence. Thus, for example, in a case such as the present, where it cannot be determined which particular accused actually inflicted the fatal wound on the deceased, s 324B may apply. In such a case, in a murder trial, s 324B would have no work to do unless the requisite mens rea of the secondary party be the same as the requisite mens rea of the primary offender, namely, an intention to either kill or cause really serious injury.
That anomaly would be even more pronounced where two or more persons are charged with manslaughter in a case in which it is not possible to prove which offender inflicted the fatal blow on the victim, but in which each intentionally assisted or encouraged the other to unlawfully assault the victim. In such a case, if the construction of s 323(1)(a), contended for by counsel for Gebregiorgis and Kassa, were correct, s 324B would only apply if it could be proven that each offender intended to kill the victim.
It follows from the foregoing discussion that, contrary to the submissions advanced on behalf of Gebregiorgis and Kassa, in the case of murder, in order to prove the guilt of a secondary party pursuant to s 323(1)(a), it is necessary for the prosecution to prove that the secondary party intentionally assisted, encouraged or directed the primary offender to kill, or cause really serious injury to, the victim. Likewise, in order to prove the guilt of a secondary offender for murder pursuant to s 323(1)(c), it is necessary for the prosecution to prove that the secondary party entered into an agreement, arrangement or understanding with the primary offender to kill, or cause really serious injury to, the victim.
The questions in the case stated being understood in light of the foregoing discussion, we would answer them as set out above.[49]
[49]At [23].
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[2023] VSCA 166

14 July 2023