R v Choi (Pong Su) (No 12)
[2005] VSC 32
•21 February 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1424 of 2004
| THE QUEEN |
| v |
| YAU KIM LAM CHIN KWANG LEE TA SONG WONG DONG SONG CHOI MAN SUN SONG MAN JIN RI JU CHON RI |
---
JUDGE: | KELLAM J. | |
WHERE HELD: | MELBOURNE | |
DATE OF RULING: | 21 February 2005 | |
CASE MAY BE CITED AS: | In the Matter of the Pong Su (Ruling No. 12) | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 32 | |
---
CRIMINAL LAW - Complicity – Aiding, abetting, counselling or procuring the importation of a prohibited import being a commercial quantity of narcotic – The elements of the offence – Whether it is sufficient to prove recklessness on the part of the accused as to whether the other person commits the offence of importation – Customs Act s.233B(1) – Criminal Code Act 1995 s.11.2
---
APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr J. Champion S.C. with Mr M.P. Cahill | The Solicitor for the Commonwealth Office of Public Prosecutions |
| For the Defendant Yau Kim Lam | Mr G. Meredith | Tony Danos |
| For the Defendant Chin Kwang Lee | Mr A. Shwartz | Halikopoulos Lawyers |
| For the Defendant Ta Song Wong | Mr T. Lewis | Lethbridges |
| For the Defendant Dong Song Choi | Mr J. O’Sullivan | Galbally & O’Bryan |
| For the Defendant Man Sun Song | Mr P. Faris, Q.C. with Mr I.Hayden | Ellinghaus & Lindner |
| For the Defendant Man Jin Ri | Mr N. Papas | Slades & Parsons |
| For the Defendant Ju Chon Ri | Mr S. Russell | Leanne Warren & Associates |
HIS HONOUR:
Ta Song Wong is indicted with the offence of importing a commercial quantity of heroin into Australia in breach of s.233B(1)(b) of the Customs Act 1901 (C’th). Each of the other accused persons is charged with aiding, abetting, counselling or procuring the commission of the offence of importing heroin into Australia.
The Criminal Code Act 1995 (“the Code”) applies to the offences upon which the accused persons are indicted.
By Part 2.4 of the Code, under the heading “Extensions of Criminal Responsibility” the Code makes provision for “complicity and common purpose” in the following terms:
“11.2 Complicity and Common Purpose
(1)A person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly.
(2)For the person to be guilty:
(a)the person’s conduct must have in fact aided, abetted, counselled or procured the commission of the offence by the other person; and
(b)the offence must have been committed by the other person.
(3)For the person to be guilty, the person must have intended that:
(a)his or her conduct would aid, abet, counsel or procure the commission of any offence (including its fault elements) of the type the other person committed; or
(b)his or her conduct would aid, abet, counsel or procure the commission of an offence and have been reckless about the commission of the offence (including its fault elements) that the other person in fact committed.
(3A)Subsection (3) has effect subject to sub-s.(6).
(4)The person cannot be found guilty of aiding, abetting, counselling or procuring the commission of an offence if, before the offence was committed, the person:
(a)terminated his or her involvement; and
(b)took all reasonable steps to prevent the commission of the offence.
(5)A person may be found guilty of aiding, abetting, counselling or procuring the commission of an offence even if the principal offender has not been prosecuted or has not been found guilty.
(6)Any special liability provisions that apply to an offence apply also to the offence of aiding, abetting, counselling or procuring the commission of that offence.”
The issue now before me is the determination of the elements of the offence of aiding, abetting, counselling or procuring an offence of the nature of which the accused persons, other than Wong, are indicted.
Physical and Fault Elements of the Offence
The Code provides that an offence consists of physical elements and fault elements[1]. Physical elements are specified in the Code[2]. They may be conduct, the result of conduct, or a circumstance in which conduct occurs. Fault elements specified in the Code[3] may be intention, knowledge, recklessness or negligence.
[1]Section 3.1
[2]Section 4.1
[3]Sections 5.1 – 5.6
The Prosecution’s Submission as to the Elements
The prosecution submits that before it may be proved that a person “aided, abetted, counselled or procured” the commission of an offence under the Code the following matters must be proved.
(a)The prosecution must prove that the conduct of each or any of the accused in fact aided, abetted, counselled or procured the commission of the offence by the other person. (See s.11.2(2)(a).) As this physical element consists of conduct, the fault element required is an intention that such conduct would aid, abet, counsel or procure the commission of any offence of the type the other person committed. (See s.11.2(3)(a).) In this regard, it should be noted that the prosecution puts its case on the basis of s.11.2(3)(a) and not on the alternative basis of s.11.2(3)(b).
(b)The prosecution must prove that the offence was committed by the other person. (See s.11.2(2)(b).) Because this physical element amounts to a circumstance the prosecution contends that the applicable fault element which applies is thus recklessness on the part of the aider and abetter. (See s.5.6(2).) Thus it is submitted by the prosecution that although it must prove that the offence which was aided and abetted was committed by the other person, the mental element which is required to be proven in relation to this is that the aider and abetter was aware of the substantial risk that the offence would be committed and unjustifiably took the risk.
The Submission made on behalf of Yau Kim Lam as to the Elements of the Offence
Mr Meredith of counsel who appears for the accused, Lam, submits that the Code makes no difference to the previously applicable common law position concerning the proof of aiding, abetting, counselling and procuring. He concedes that by reason of the enactment of the Code the law has been altered with respect to the proof of “common purpose” but not in relation to aiding, abetting et cetera. He contends that complicity is not a crime in itself. Rather it is a mode of participation in the crime of another, and thus an alternative route to criminal liability. Mr Meredith points out that s.11.2(1) of the Code bears this out in stating:
“A person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly.”
He submits that the default “fault elements” established by the Code do not apply to s.11.2 because s.11.2 does not create the substantive offence. He submits that the use of the word “conduct” in s.11.2(2)[HB1](a) is not used to denote a physical element of the “offence” of complicity or of any offence at all.
Mr Meredith contends further that the words “taken to have committed that offence” in s.11.2(1) should be contrasted with the words “shall be guilty of an offence”. He argues that whilst the latter phrase creates an offence, the former does not. Mr Meredith relies upon two decisions in support of this distinction. In R v Lewis[4], McGregor J gave consideration to ss.5 and 6 of the Crimes Act 1914 (C’th) which at that time provided:
“5.Any person who aids, abets, counsels or procures, or by act or omission is in any way directly or indirectly knowingly concerned in, or party to, the commission of any offence against any law of the Commonwealth or of a territory, whether past, before or after the commencement of this act, shall be deemed to have committed that offence and shall be punishable accordingly.
6.Any person who receives or assists another person, who is, to his knowledge, guilty of an offence against a law of the Commonwealth or of a territory, in order to enable him to escape punishment or to dispose of the proceeds of the offence shall be guilty of an offence.”
[4](1985) 18A Crim R 243
McGregor J said[5]:
“The statement of offences in the Crimes Act is indicated by the presence… of the formula, ‘shall be guilty of an… offence’. This is absent from s.5: the section does not provide that any person who aides and abets the commission of any offence against any law of the Commonwealth shall be ‘guilty of an offence’; it deems such a person to have committed ‘that offence’. That is, the offence the commission of which he has aided and abetted and which exists independently of s.5. The language of s.5 indicates that it was not intended or designed to enunciate a distinct or separate offence although it has the effect that conduct to which it refers may lead to conviction of offences established by other laws of the Commonwealth, and attract the same penalties.”
[5]At p. 251
Mr Meredith relies further upon a similar contrast which was drawn by Street CJ in R v Shin Nan Yong[6] when he said[7]:
[6](1975) 7 ALR 271
[7]At 273
“The Court has been referred to a number of authoritative observations upon the necessity for a principal offence to be proved to have been committed in order to sustain a charge and conviction of what might be described as a purely accessory offence. The present offence, however, is not of an accessory nature. The charge brought against the appellant was under s.233B(1)(d) which provides:
233B(1) Any person who –
(d)aids, abets, counsels or procures, or is in any way knowingly concerned in, the importation of any prohibited imports to which this offence applies… shall be guilty of an offence.”
Mr Sullivan QC has, with justification, contrasted this section with the terminology of s.236 which provides:
236.Whoever aids, abets, counsels or procures or by an act or omission is in any way directly or indirectly concerned in the commission of any offence against this act shall be deemed to have committed such offence and shall be punishable accordingly.
Clearly enough s.233B(1)(d) is not of the same character in an accessory sense as is s.236. The section does not depend for its operation upon what might be described as a principal or primary conviction. It is capable of operating in any circumstances where there has been an importation into Australia of any prohibited import.”
Mr Meredith contends that reference to extrinsic material demonstrates that ss.11.2(2)(a) and (b) of the Code merely restate common law principles and do not set out particular physical elements of the offence of aiding, abetting, counselling or procuring. In particular, he relies upon the final report of the Criminal Law Officers’ Committee of the Standing Committee of Attorneys General (“MCCOC Report”) which indicates that no change to common law principles governing the proof of accessoryship was contemplated by the drafters of the Code[8]. He points out that s.11.2(3)(a) of the Code sets out the necessary mental state required of an accessory, which is consistent with that required under common law. On the other hand, he submits that s.11.2(3)(b) addresses conduct which at common law would be more readily described as being an example of the operation of the doctrine of common purpose. That doctrine applies when two or more accused persons combine to carry out a primary criminal intention, but where it is sought to make one responsible for the act of another because that act had been in contemplation as a possible incident of the execution of the planned enterprise. He relies upon the report of the Officers’ Committee of the Code which makes reference to this matter and to the fact that the Code has made a change so far as this form of liability is concerned[9].
[8]MCC, Ch. 2: General Principles of Criminal Responsibility (final report 1992) p. 86ff
[9]MCC, Ch. 2: General Principles of Criminal Responsibility (final report 1992) p. 89
Thus, as I understand his argument, Mr Meredith submits that s.3.1(1) of the Code which provides that “an offence consists of physical and fault elements” does not apply to s.11.2, because the latter subsection does not create an offence. The logical consequence of this argument is that s.5.6 (which provides the “default” fault elements for offences which do not specify fault elements) similarly has no application to complicity as set out in s.11.2.
The submission made on behalf of Kiam Fah Teng[10]
[10]Subsequent to the provision of the written submission Kiam Fah Teng pleaded guilty to aiding and abetting the importation of heroin.
Mr Georgiou of Counsel who appears for Kiam Fah Teng provided me with a helpful written submission. He relied upon the fact that the Code is designed to “set out exhaustively the principles” of criminal responsibility and that liability of an aider or abetter is derivative and secondary to that of the principal offender. The Code requires proof that the principal offender committed the offence. This is, he submits, no different from the situation that exists at common law and results from the derivative nature of accessorial liability. The principal offender may be dead, unknown or acquitted but the “offence must have been committed by the other person” (s.11.2(2)(b)). He submits that there is only one physical element of the offence of aiding and abetting the importation of a prohibited narcotic good and the fault element of that is an intention to aid and abet any offence of the type committed by the principal offender.
He submits that the requirement of s.11.2(2)(b) that the offence must have been committed by the principal does not relate to the offender’s conduct but relates to that of the principal offender. Mr Georgiou argues that the function of s.11.2(2)(b) is to ensure that accessorial liability remains derivative and that the section does not establish a physical element of circumstance. Section 11.2(3) sets out in full the mental elements for those complicit in crimes.
The Submissions made on behalf of Chin Kwang Lee
Mr Schwartz of counsel who appears for Lee adopts the arguments of Mr Meredith and contends that the allegation made by the count on the indictment that Lee was an aider and abetter in the prohibited importation of a prohibited import into Australia is neither an element of the charge alleged nor can be viewed as a crime in its own right. He submits that s.11.2(2)(b) contemplates that criminal complicity is based on the fact that the offence must have been committed “by the other person” and that s.11.2(3)(a) restates the common law position that the actions giving rise to accessorial activities relate to the commission of the offence committed by “the other person”.
Submissions made on behalf of Dong Song Choi
Mr O’Sullivan of Counsel on behalf of Choi submits that the offence alleged in the indictment against his client, consists of a single physical element, namely conduct of a kind that either aided, abetted, counselled or procured the importation into Australia of narcotic goods. He submits that s.11.2 of the Criminal Code is contained within Ch. 2 of the Code, the stated purpose of which is “to codify the general principles of criminal responsibility under laws of the Commonwealth”. He submits that consistent with this purpose, the purpose of s.11.2(1) of the Code is to codify the principles of accessorial liability under Commonwealth law. He contends that the purpose of ss.11.2(2) – 11.2(6) is to set out a number of qualifications and exceptions applicable to the liability specified in 11.2(1). Thus, he contends that there is no reason to look beyond s.11.2(1) for the elements of accessorial liability under the Code and therefore the physical element of accessorial liability implicitly specified in s.11.2(1) of the Code is: an act or acts that take one of the four stated forms of accessorial complicity. On this basis, he submits that given that an act constitutes “conduct” pursuant to s.4.1(2) of the Code, the physical element implicitly specified in s.11.2(1) is conduct that takes one of the four stated forms and the accompanying fault element (given that none is specified in s.233B(1)(b) of the Customs Act) is intention (as provided in s.5.6(1) of the Code). He relies upon the judgment of Brennan J in He Kaw Teh v The Queen[11] wherein his Honour considered the question of whether knowledge was an element of offences pursuant to s.233B(1)(b) of the Customs Act 1901. Brennan J said[12]:
“If there be a legislative intention to apply a mental element to the circumstances different from the mental element applicable to the act involved in the offence, it is necessary to decide what circumstances are defined to be an integral part of the act (to which intent and therefore knowledge will ordinarily apply) and what circumstances are defined to be merely attendant (to which no mental element may be intended to apply or to which a mental element less than knowledge may be intended to apply). One of the intractable difficulties in the process of identifying the particular category of mens rea that applies to the respective external elements of an offence is the identification of the prohibited act on the one hand and the circumstances attendant on the doing of that act on the other.”
[11](1985) 157 CLR 523.
[12]At p.571.
Mr O’Sullivan relies further upon the following statement of Brennan J[13]:
“Importing simpliciter is not an act nor is it defined to be a prohibited act in par. b. Importing narcotic goods is an act; it is the act referred to in par. b. The character of the act involved in the offence depends on the nature of the object imported. The paragraph thus impliedly requires an intent to do the prohibited act – importing narcotic goods – and thus requires knowledge of the nature of the object imported. It is impossible to divide the act involved in an offence under par. b into an act and circumstances attendant upon its occurrence.”
[13]At p.584.
Mr O’Sullivan submits that the analysis employed by Brennan J in He Kaw Teh is equally applicable to the identification of the physical elements of the offence of aiding, abetting, counselling or procuring the importation into Australia of prohibited imports in that it can be said equally that:
(a)aiding, abetting, counselling or procuring simpliciter are not acts, nor are they defined to be prohibited acts in s.11.2(1) of the Code;
(b)aiding, abetting, counselling or procuring the importation of prohibited imports are acts; they are the acts referred to in the indictment;
(c)it is impossible to divide the act involved in the offence of aiding, abetting, counselling or procuring the importation of prohibited imports into an act, and circumstances attendant upon its occurrence.
On this basis, Mr O’Sullivan submits that the decision in R v Narongchai Saengsai-Or[14] where the Court held that the offence of importing narcotic goods into Australia, as interpreted in the context of the Code, consists of a single physical element of conduct, remains consistent with the decision in He Kaw Teh, which of course preceded the enactment of the Code.
[14][2004] NSW CCA 108
Furthermore, Mr O’Sullivan observes that the Commonwealth Criminal Code – A Guide for Practitioners states that[15]:
“The Code reflects the dominant common law view of the essential fault element in complicity.”
[15]Page 253
Finally, Mr O’Sullivan contends that acceptance of the submission made by the prosecution would lead to the anomalous result that, in order to prove the offence of importing narcotic goods against Ta Song Wong, the Crown is required to prove that he knew that the goods he was importing were narcotic goods, but that in order to prove the offence of aiding, abetting, counselling or procuring the commission of that offence by Choi, the Crown would be required to prove only that Choi was aware of a substantial risk that Wong was importing narcotic goods.
The Prosecution Response
The prosecution response to the arguments advanced by counsel for the respective accused men is that “committing an offence by aiding, abetting, counselling or procuring” the offence comprises the elements of:
(a)proof that the conduct of each or any of the accused men in fact aided, abetted, counselled or procured the commission of the offence by the other person;
(b)proof that the offence was committed by the other person, the physical element being a circumstance and thus that the applicable fault element is recklessness;
(c)proof that each or any of the accused men intended that his conduct would aid, abet, counsel or procure the commission of any offence of the type the other person committed, namely the offence of importing prohibited imports.
The prosecution reiterates that proof that a person is guilty of an offence by means of aiding, abetting, counselling or procuring requires the matters which are set out in s.11.2 of the Code to be proved. The prosecution contends that that provision contains both physical elements and fault elements attaching to those physical elements.
It submits that “a reasonable and plain interpretation” of the provisions of the Code is that the commission of the offence by “the other person” amounts to a physical element relevant to establishing guilt, and that a plain interpretation of the Code is that the commission of the offence by the other person is a circumstance in which the conduct of the aider, abetter, counsellor or procurer occurs. The prosecution submits that there is nothing in the Code which suggests that a circumstance in which conduct occurs, must be a circumstance attaching directly to some personal act or conduct of the aider, and thus it is apparent that the fault element of recklessness is the appropriate element in this instance.
The prosecution concedes that in Giorgianni v R[16] the majority of the High Court specifically rejected the notion that it was possible to aid, abet, counsel or procure the commission of an offence by acting recklessly.[17] However, the conclusion of the High Court in that case does not resolve the question of the interpretation of the elements of s.11.2 of the Code. It submits that the analysis of s.11.2 of the Code for which it contends is logical and resolves the inconsistency that exists between the narrow effect of the decision in Giorgianni and the English decision of DPP for Nothern Island v Maxwell[18], which inconsistency has been the subject of much academic debate.[19]
[16](1984) 156 CLR 435.
[17]Per Wilson, Deane and Dawson JJ at p.505.
[18][1978] 1 WLR 1350.
[19]See for example: Howards Criminal Law, Law Book Co. 5th Edition p.331 – 332 and (1993) 17 Crim. L.J. 242 and 305.
Furthermore, it contends that if the submissions for the accused men were accepted, it would mean that proof of the commission of the offence by the other person, although necessary to be proved beyond reasonable doubt, would be a matter not requiring a fault element. This it is submitted, would be contrary to the intent of the Code.
The prosecution contends that the provisions of the Criminal Code are clear and as far as interpretation of the Code is concerned “loyalty must be to the provisions of the Code, when looked at as a whole, and given its natural meaning”. It is contended that the Code should be given its natural meaning derived from its own context. It is submitted that the Code is not to be taken as merely restating the pre-existing common law, and the first step in the interpretation of it is to examine the language of the document rather than to establish what the pre-existing common law was, and then to attempt to make the Code fit with what the law was. The prosecution submits that “if the effect of the Code is to alter existing common law, then so be it”.
The submission of the prosecution that the Code should be given its natural meaning is clearly correct. However, it does not appear to me that the intention of the Code in relation to the required proofs of the mental elements of aiding and abetting of an offence is as apparent as is contended for by the prosecution.
The commentary in Federal Criminal Law[20] in relation to s.11.2 of the Code is as follows:
“This provision largely enacts the common law position reflected in decisions such as Giorgianni v R -
‘… The offence of being “knowingly concerned”, the meaning of which has been settled by a series of judicial decisions, has been abolished. It is clear from s.11.2(3) that intention to commit an offence is always an essential element and recklessness cannot suffice, although the sub-section is frequently misunderstood. Paragraph (3)(a) is directed to the ordinary case of accessorial liability, where the type of offence in question is intended by the offender although the common purpose may not extend to the precise details of the particular offence. Paragraph (3)(b) is directed to the case where there is an intention to commit an offence, but recklessness as to another offence that is committed in the course of the common purpose. The paradigmatic case is the agreement to commit a bank robbery whilst armed, in which the accessory is reckless as to whether the armed principal shoots and kills a security guard. Even in that case, it is necessary for the prosecution to show that the accessory intended to commit an offence. The recklessness aspect only applies to the additional offences committed beyond the scope of the common purpose.”
[20]Williams Payne McNaughton Butterworths, Looseleaf Service at p. 42, 252.
Furthermore, and whilst the submissions of the prosecution are said to be based upon a strict reading of the provisions of the Code, which are said to abandon the common law position, the interpretation for which the prosecution contends is in my view contradicted by The Commonwealth Criminal Code – A Guide for Practitioners (“the Guide”), a publication of the Commonwealth Attorney General’s Department. It should be noted that in other regards this publication has been relied upon by the prosecution in its submissions about various aspects of the Code. The Guide states in unequivocal terms that “the Code reflects the dominant common law view of the essential fault element in complicity”[21]. Moreover, the Model Criminal Code Officers’ Committee considered and rejected proposals to extend or restrict the traditional grounds for imposing liability on an accomplice.[22]
[21]Guide for Practitioners, p.253.
[22]Guide for Practitioners, p.249.
The common law position with respect to the law of complicity is generally accepted to have been set down in Giorgianni in which the High Court held that accessorial liability depended upon the establishment of two “fault elements”. First, the prosecution was required to prove an intention on the part of the person to assist or encourage the principal offender. Recklessness as to assistance or encouragement would not suffice. Secondly, the prosecution was required to prove knowledge of the essential elements of the offence on the part of the accused person. Recklessness as to the essential ingredients of the principal offender’s offence would likewise not suffice. It should be noted of course that whilst Gibbs CJ and Mason J agreed that actual knowledge was required, they accepted that “wilful blindness” could equate to knowledge.[23]
[23]At 482 and 495 respectively.
The common law position as stated in Giorgianni was criticised by a number of academic authors for adopting an overly narrow approach to the “knowledge” element of mens rea. For example, Professor Fisse argues[24] that:
“The effect of Giorgianni is severely to restrict the scope of liability for complicity. If knowledge in the sense of actual knowledge or accurate resolute belief is required, it follows that there is no liability for complicity where D renders aid or encouragement in advance of the commission of the principal offence and, at all times of D’s involvement, the principal offence has remained no more than a likelihood or strong possibility… Thus the law of complicity now seems a dead letter in situations where D is astute or lucky enough to confine his participation in crime to the formative or preliminary stages of criminal enterprise when the commission of the principal offence is merely possible or probable rather than certain.”
[24]Howards Criminal Law, 5th ed, Law Book Company at 332.
The prosecution in its written submissions argues that the restrictive approach adopted in Giorgianni was inconsistent with the English decision of Maxwell, in which the House of Lords adopted a “more flexible approach”. The prosecution submits that the Code by abandoning the common law position and introducing the fault element of recklessness in relation to the issue of the commission of the offence, adopts a construction of the law of complicity which removes the inconsistency between Giorgianni and Maxwell and the difficulties identified in the above case.
In Maxwell, the accused man was convicted of complicity in the offence of placing a bomb. The accused man led a group of men to a hotel, where he knew that they intended to make a terrorist attack, and then drove away. In dismissing his appeal, the House of Lords held that the fact that the accused man may not have known precisely what offences would be committed was irrelevant; it was sufficient that he knew that one offence within a range would probably be committed.
In R v Bainbridge[25], the accused supplied oxy-welding to others who used the equipment to break into a bank. The accused was held to be liable, as he knew when supplying the equipment that it would be used for breaking and entering. The Court of Appeal held that an accused needed to know only the general type of crime to be committed, rather than the specific crime, for criminal responsibility to be established.
[25][1960] 1 QB 129.
The apparent inconsistency between the approach in Giorgianni and that of Maxwell was observed by a number of commentators who sought to reconcile the two approaches[26]. One useful discussion may be found in Principles of Criminal Law[27]:
“The obvious way to resolve this uncertainty and reconcile these earlier cases with Giorgianni, is to extend the qualifications in Bainbridge and Maxwell to cover intention. This would mean that an accessory need intend only to assist or encourage an offence of the type committed in due course by the principal offender. Indeed, this solution to the problem of divergence has been adopted in the Criminal Code Act 1985 (C’th). Section 11.2(3)(a) states that for a person to be guilty, he or she must have intended that ‘his or her conduct would aid, abet, counsel or procure the commission of the offence (including its fault elements) of the type the other person committed’.”
[26]S Bronitt, “Defending Giorgianni – Part One: The fault required for complicity” (1993) 17 Criminal Law Journal 242; S Bronitt, “Defending Giorgianni – Part Two: New Solutions for Old Problems in Complicity” (1993) 17 Criminal Law Journal 305. In the first of these articles (at 254 – 255), Simon Bronitt suggests that Fisse’s analysis of the problems with Giorgianni erroneously assumes that “essential matters” must be defined by reference to the perpetrator’s conduct, rather than the perpetrator’s mental state. Bronitt acknowledges that on Fisse’s analysis of Giorgianni, the case would result in ridiculous acquittals. However, Bronitt suggests that “[b]y focussing on the perpetrator’s mens rea rather than his or her actus reus, the concept of essential matters becomes broad enough to resolve the problem of an accessory who participates before the commission of the perpetrator’s offence.” In support of this view, Bronitt cites the NSW decision of Stokes & Difford (1990) 51 A Crim R 25 at 38, in which Hunt, J. said:
… it seems to me, 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.” (emphasis in original)
[27]Bronitt and McSherry, Law Book Company 2001 at 396
The approach of Bronitt and McSherry referred to in the preceding paragraph is referred to at footnote 301 of the Guide. The accompanying text comments that:
“…the language of the Code formulation goes no further than the common law authorities in providing criteria for determining what constitutes a ‘type’ of offence.”
Thus it may be seen that the prosecution’s submission insofar as it suggests that the Code resolves the difficulty arising from inconsistency between the decisions of Giorgianni and Maxwell is correct. However, it appears to me that the resolution is achieved through the clear language of s.11.2(3)(a), which provides for proof of an intention to aid et cetera, the commission of any offence of the type the other person committed, and not through the attachment of the mental element of recklessness to the circumstance said to be described in s.11.2(2)(b).
The Model Criminal Code Report (1992)
It is apparent that the Model Criminal Code Report considered and rejected the inclusion of recklessness as a fault element of complicity.[28] The Report makes the following observations about the draft of the provisions in the Code relating to complicity.[29]
“The discussion draft included recklessness as a fault element for complicity. For the reasons outlined in relation to attempt [see para 39 below], recklessness has also been deleted from complicity. This had implications for the common purpose doctrine. In the discussion draft, the Committee had echoed concerns about the width of the existing common purpose rule, extending D’s liability to offences foreseen as possible by the co-offender which D foresaw as possible. It was argued that it would be unjust to allow recklessness or complicity and to allow common purpose. Therefore the Committee had proposed to abolish the common purpose rule. Submissions went both ways on the issue. With the abolition of recklessness generally from complicity, it was decided to restore common purpose in a modified form based on the general test of recklessness used in the Code … namely, foresight of a substantial and unjustified risk that another offence beyond the one agreed would be committed”.
[28]MCC – Chapters 1 and 2 – General Principles of Criminal Responsibility.
[29]At p.91.
The Report gives the following reasons for the exclusion of recklessness as a fault element of attempt:
“Several submissions opposed this proposal [ie to include recklessness as a fault element for attempt], principally on the basis that purposiveness is the essence of attempt. Secondly, it was said that to extend the extensions of criminal responsibility even further by allowing recklessness – as the Committee had done generally in Part 4 – was going too far. The Committee accepted these criticisms and deleted recklessness from attempt, complicity and incitement.”
Accordingly those who drafted the Code leave us in no doubt as to their intention that recklessness would not become an element of aiding, abetting, counselling or procuring under the Code. This conclusion is supported by the terms of the Code itself. In my view, the submission of counsel for the accused, that s.11.2(3) sets out in full the mental elements required to prove complicity in crimes is correct.
The distinction between s.11.2(3)(a) and 11.2(3)(b)
The prosecution submission requires that it prove that the person intended that his conduct would aid abet counsel or procure the commission of any offence (including its fault elements) of the type committed by the other person, and prove that that person was reckless as to whether the offence was committed by the other person.
Section 11.2(3)(b) provides that “For the person to be guilty the person must have intended that his or her conduct would aid, abet, counsel or procure the commission of an offence and have been reckless about the commission of the offence (including its fault elements) that the other person in fact committed.” The “intention” described in that sub-section thus resembles closely the underlined words in the above paragraph [42]. If the underlined words correctly describe the basis for liability when applying s.11.2(3)(a), then sub-s.(a) would be distinguishable only from sub-s.(b) by the words “any” and “of the type committed”. It is unlikely that this is the result intended by Parliament, especially as the element of “recklessness” (the inclusion of which departs from the common law position, and which was the subject of extensive consideration by MCCOC) has been specified in sub-s.(b) but not in sub-s.(a).
It is clear from the MCCOC Report, and indeed from the title of the section “Complicity and Common Purpose”, that s.11.2(3)(a) was intended to introduce a concept of complicity, that was in contradistinction to s.11.2(3)(b), which was intended to establish a concept of common purpose. As is evident from the quotation above (at para 39) it was considered by the Committee that to include both concepts would unduly extend criminal liability if recklessness was included as an element of complicity, except in relation to the retention of the doctrine of common purpose in a modified form based upon the general definition of recklessness used in the Code.
Furthermore, the manner in which the prosecution seeks to interpret s.11.2 would, in my view, render redundant the “recklessness” specified in s.11.2 (3)(b) when applying that section. The submissions made on behalf of the prosecution would have the following consequence.
(a)The prosecution must prove that the conduct of each or any of the accused in fact aided, et cetera, the commission of the offence by the other person (s.11.2 (2)(a)).
(b)The prosecution must prove that the offence was committed by the other person. The fault element attaching to this “circumstance” is that the person must have been reckless as to whether the offence was committed by the other person (s.11.2(2)(b)).
(c)The prosecution must prove that the person intended that his or her conduct would aid, et cetera, the commission of an offence and have been reckless about the commission of the offence that the other person in fact committed (s.11.2(3)(b)).
Thus, the second aspect of the fault element specified by s.11.2(3)(b) (the underlined words) would be rendered redundant if the prosecution’s interpretation of s.11.2(2)(b) were to prevail. If Parliament intended that the fault element of recklessness would attach to the circumstance in s.11.2(2)(b) it would have been unnecessary for it to enact the specific provision found in s.11.2(3)(b). It should be noted that neither the Model Criminal Code Report nor the Guide for Practitioners addresses the issue of whether or not “recklessness” should attach to s.11.2(2)(b) which, as the prosecution contends, appears to describe a “circumstance”. The report reveals that while the drafters gave much consideration to the issue of recklessness in complicity, the suggestion that recklessness could arise through a fault element attaching to s.11.2(2)(b) does not seem to have been considered. It may be that, as contended by Mr Meredith, the explanation for this is that s.11.2 does not create an offence. Rather, it can be seen as providing an alternative means of establishing the guilt of an accused person, and as setting out the parameters required for the extension of criminal responsibility by providing criteria upon which an accomplice may be taken to have committed the offence committed by the principal.
Whatever the explanation may be, it appears to me to be clear from the Code and from the extrinsic materials I have considered that the intention of Parliament was to exclude recklessness as a fault element for complicity save and except for recklessness in relation to “common purpose” which is the subject of s.11.2(3)(b) of the legislation. Accordingly, it follows that the prosecution must establish that the alleged accomplice meant to aid, abet or counsel the principal, or to procure the commission of an offence. This is in accordance with the common law view of the essential fault element in complicity. The requirement of an intention to aid, abet, counsel or procure the commission of an offence does not have to relate to a specific offence. However, liability is incurred when the principal commits an offence (of the type) which the accomplice meant to promote. It is apparent that if this intention is proved, then it is necessary for the prosecution to prove that the conduct of the accused person in fact aided, abetted, counselled or procured the commission of the offence by the other person, and there must be proof that an offence of the type that the accomplice intended would be aided et cetera, was in fact committed by the other person.
Likewise, it is clear from a consideration of the Code and the extrinsic materials that the issue of recklessness is intended to arise only in relation to circumstances whereby an accomplice has aided et cetera a particular type of offence and the principal has gone on to commit another type of offence. In such circumstances, the fault element of recklessness arises by reason of the terms of s.11.2(3)(b). However, that is not the case before me.
Conclusion
In my view, the effect of the Code is that in order to prove that the accused persons aided, abetted, counselled or procured the commission of an offence the prosecution must prove:
(a)That the conduct of each or any of the accused persons in fact aided, abetted, counselled or procured the commission of the offence which was committed by the other person (s.11.2(2)(a).)
(b)That the offence which was so aided, et cetera, was committed by the other person.
(c)That the accused person intended that his conduct would aid, abet, counsel or procure the commission of any offence (including its fault elements) of the type the other person committed. (s.11.2(3)(a).) In this case the type of offence is the offence of importing prohibited imports to which s.233B(1)(b) of the Customs Act applies.
---
[HB1]
3