R v Rohan (a pseudonym)

[2023] HCATrans 132

[2023] HCATrans 132

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M33 of 2023

B e t w e e n -

THE KING

Appellant

and

ROHAN (A PSEUDONYM)

Respondent

GAGELER J
GORDON J
EDELMAN J
GLEESON J
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 12 OCTOBER 2023, AT 9.45 AM

Copyright in the High Court of Australia

MS E.H. RUDDLE, KC:   May it please the Court, I appear with my learned friend MS J.B. WARREN for the appellant.  (instructed by Solicitor for Public Prosecutions (Vic))

MR T. KASSIMATIS, KC:   May it please the Court, I appear with my learned friend MS G.F. CONNELLY on behalf of the respondent.  (instructed by Greg Thomas Barrister & Solicitor)

GAGELER J:   Ms Ruddle.

MS RUDDLE: May it please the Court. This appeal turns on the interpretation of section 323(1)(c) of the Crimes Act, which provides a person is involved in an offense if he or she:

enters into an agreement, arrangement or understanding with another person to commit the offence –

and then, pursuant to section 324(1) of the Crimes Act:

a person who is involved in the commission of the offence is taken to have committed the offence –

The key question for this appeal, in our submission, is the meaning of the words “enters into an agreement, arrangement or understanding . . . to commit the offence”.

GAGELER J:   Well, the key question is the meaning of the word “offence” in subsection (1) of 323, is it not?

MS RUDDLE:   Sorry, your Honour?

GAGELER J:   The key question is as to the meaning of the word “offence” within that collocation.

MS RUDDLE: Yes, your Honour, save that, in our submission, the use of the entire phrase in both subsection (1)(a) and (1)(c) needs to be considered, not just the word “offence” alone. Your Honours will find the relevant sections at page 21 of volume 1, part A of the joint book of authorities. It is the submission of the appellant that these sections were intended in some ways to codify, and in some ways to limit, the common law affecting joint criminal enterprise and aiding and abetting. Specifically, it is the submission of the appellant that, when one looks at section 323(1)(a), that is intended to cover – essentially codify – the concepts relating to aiding, abetting, counselling and procuring. Section 323(1)(c), that is:

enters into an agreement, arrangement or understanding with another person to commit the offence –

was intended to codify and cover group activities such as acting in concert, joint criminal enterprise and common purpose, whereas sections 323(1)(b) and (d) create an extension of liability different in scope to the common law.

In order to answer the question posed by this appeal, consideration, in our submission, must be given to the law prior to the enactment of these sections.  Prior to the enactment of these sections, whilst aiding and abetting was partially codified in the old section 323, joint criminal enterprise and group activity was entirely covered by the common law.  Of course, this Court has recently discussed the nature of joint criminal enterprise or common purpose in the case of Mitchell v The King (2023) 97 ALJR 172. That case is, of course, one of a long‑standing line of authorities that recognises the fundamental difference between complicity by aiders and abetters and complicity by those engaged in joint criminal enterprise. We do not understand ‑ ‑ ‑

EDELMAN J:   I mean, part of the difficulty that arises here is the same difficulty that has arisen more than a hundred years since Stephen produced his Digest, which is that the tendency to put all forms of complicity together in a list, irrespective of whether they are primary or derivative.

MS RUDDLE:   Yes, your Honour, but, in our respectful submission, the legislative choice in splitting the categories into subsection (a), being assisting, encouraging or direction, and subsection (c), “agreement, arrangement or understanding”, reflects the dichotomy between those two general broad principles.

GORDON J:   I think that is what Justice Edelman is putting to you.  In other words, there is a distinction drawn between (a) and (c) between what, on the old language, might be called derivative and primary liability.  In other words, you do not put them all into one bucket and treat them under the one heading.  One has to identify what is being addressed.

MS RUDDLE:   Yes, your Honour.  In our submission, the flaw in the Court of Appeal’s reasoning is that they have attached the concepts, particularly from the case of The Queen v Giorgianni, which is a case relating to derivative liability for aiders and abetters, into what we submit is a form of primary liability along the lines of the decision of this Court in Osland and affixed a fault element that is inappropriate for joint group activity.

GLEESON J:   Well, it might be important to tease out the meaning of derivative in this context because it seems as though the Weinberg report uses that concept in a couple of different respects.

MS RUDDLE:   Yes, your Honour, and so does the explanatory memorandum, in our submission.  So, of course, in one way, all liability for complicity is derivative in that it requires, as a primary precondition, that an offence has been committed, but in our submission, that is a different question to that nature of the liability attaching to the complicit offender.

GLEESON J:   The former seems to be the way in which the Weinberg report speaks about the derivative nature of the crime, at least at paragraph 2.44 of the report.

MS RUDDLE:   I am sorry, your Honour, I did not catch the end of that question.

GLEESON J:   Paragraph 2.44, when it says that:

The current position in this State is that the liability of secondary parties to a crime is derivative.

But, of course, that kind of begs the question of what a secondary party is.

MS RUDDLE:   Yes, your Honour, but when one reads the whole of the Weinberg report, it is clear that the authors of that report are alive to the difference in liability primary for concurrent wrongdoers – sorry, that is completely wrong – for those engaged in the joint criminal enterprise, and the liability relating to aiders and abetters.  Of course, it is apparent from that report that the authors of that report have made the recommendation that all liability should become derivative, and that is the concept of the completed conspiracy offence.

GORDON J:   But that is not adopted in the EM, is it?

MS RUDDLE:   No, your Honour, and we say it is not adopted anywhere by the legislature.  The particular – and again, that that is an error that the Court of Appeal have made by presuming a wholesale adoption of the recommendations of the Weinberg report.

GORDON J:   If you come back to the question Justice Gageler asked you, which is the focusing on the offence in paragraph (c) as distinct from (a) – and let us just take (a) for the moment.  If we are dealing with, in a sense, a version of joint criminal enterprise in (c), which is I think what (c) is directed at – do you accept that?

MS RUDDLE:   Yes, your Honour.

GORDON J:   The questions you have to ask yourself for that is:  what is the agreement?  What did the parties agree to do, and did that constitute, in effect, the offence?  So, here, did they agree to sexually penetrate Daisy, who happened to be under 12?  That is the offence.

MS RUDDLE:   Yes, your Honour, and ‑ ‑ ‑

GORDON J:   Just one moment.

MS RUDDLE:   I am sorry.

GORDON J:   That is one way of looking at the offence in the concept of (c).  The offence has the same meaning for (a), but you are looking at it for a different purpose.  Is that the way your argument is put?

MS RUDDLE:   It is, your Honour, and that the distinction between fault elements is reflected in the use of the word “intentionally” in paragraph (a).  That is where that additional fault – additional knowledge element picked up from common law in Giorgianni, and it is clear from both the Weinberg report and the explanatory memorandum that was the intention of the legislature in adopting that wording.  That word does not appear in subsection (c) and, in our submission, the nature of the liability of these types of offenders is quite different.  Offenders who assist or aid are at a distance from the offence.

EDELMAN J:   The short point is that whether you say it is at a distance, whether you call it derivative, someone else must have committed the offence for you to be liable under (a).  You are intentionally assisting another person.  In that sense, it is derivative. 

MS RUDDLE:   Yes, your Honour.

EDELMAN J:   Whereas in (c), it is your own offence that you are liable for.  You do not need to derive your liability from that of another person.

MS RUDDLE:   That is the submission of the appellant, your Honour, and I was going to take the Court to the similar statement of his Honour Justice McHugh in Osland, but I think the point has been made.  In our submission, there is a qualitative difference between the type of liability covered and intended to be covered by subsection (a) and the type of liability intended to be covered ‑ ‑ ‑

EDELMAN J:   It is much, much older than just Justice McHugh’s statement in Osland.

MS RUDDLE:   Yes, of course.

EDELMAN J:   It is at least 200 years older than that.  The only question here, as I understand it, is whether the Parliament intended to abolish that distinction.

MS RUDDLE:   Yes, your Honour.  For a number of reasons, we submit that it is apparent that they did not intend to abolish that distinction.  Perhaps if I might move through some of them as I was going to take the Court to.

GAGELER J:   So, ultimately, we are concerned with a question of statutory construction.

MS RUDDLE:   Yes, your Honour, in our submission – I am sorry, did I cut your Honour off?

GAGELER J:   At some stage, I would be assisted by focusing on the statutory language and showing us how the words, particularly the word “offence”, is to be read in the various operative provisions, including not just 323(1)(a) and (c), but the whole of sections 323, 324 and 324B.

MS RUDDLE:   Yes, thank you, your Honour, for that indication.  In our submission, it is both important and illustrative that the language of section 323(1)(a) and 323(1)(c) picked up much of the nomenclature of the common law.  So, if I might take the Court – and we have listed a number of these cases and examples in footnote 7 of our reply, but if I could just take the Court briefly to a couple of examples.  In Matusevich v The Queen (1978) 137 CLR 633, the key passage of which your Honours will find at page 329 of the joint appeal book, you can see that the ‑ ‑ ‑

GORDON J:   What page of the authority is that, please?

MS RUDDLE:   Of the authority itself, page 636, your Honour; page 329 of the joint court book, and it is behind tab 16.  That is picking up the language of an earlier case, just commencing from the fourth line from the bottom.  As stated by Justice Smith in R v Lowery and King [No. 2]:

“The law says that if two or more persons reach an understanding or arrangement that together they will commit a crime and then, while that understanding or arrangement is still on foot and has not been called off, they are both present at the scene of the crime and one or other of them does, or they do between them, in accordance with their understanding or arrangement, all the things that are necessary to constitute the crime, they are all equally guilty of that crime regardless of what part each played in its commission.”

What is necessary, for this principle to apply, is that the two or more persons concerned had a common design, or in other words had formed a common intention and were acting together in a common enterprise to achieve an object which was in law criminal.  The question whether two persons have entered into an agreement, or have made an arrangement, or formed an understanding, to pursue a particular object is simply one of fact.

In our respectful submission, that language mirrors the language of subsection (1)(c) of 323, you see the words “understanding”, “arrangement” and “agreement”, and it accurately describes the nature of the complicity, as your Honour Justice Edelman stated, around the fact that it is not distant, it is not derivative, it can and is – as it was in the case here – a set of common intentions followed by a set of common acts.

That language continued through the various authorities.  If I could then take the Court to McAuliffe v The Queen (1995) 183 CLR 108, and at page 114 of that authority, which appears at page 369 of the joint book of authorities, we see that same language mirrored. Starting from just after the number (13) on the first line:

But the complicity of a secondary party may also be established by reason of a common purpose shared with the principal offender or with that offender and others.  Such a common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime.

So, again, we see the phrase “understanding or arrangement” which has been picked up by the legislature.  So, in our respectful submission, these words were not selected out of thin air; they represent concepts well known to the common law.  It is important legislative choice in picking those words.

Ultimately, as we have discussed, the Weinberg report recommended a significant change to the law of joint criminal enterprise and common purpose.  It is our case that whilst the legislature adopted much of the Weinberg report, particularly in relation to changing the scope of extended common purpose, it did not adopt the recommendations insofar as they recommended to change the principles of complicity to import the concept of a completed conspiracy.

GLEESON J:   But they did recommend the very language that was incorporated into the statute.  So, your case must be that the authors of the Weinberg report misinterpreted that language because they took the view that it correlated with their recommendation. 

MS RUDDLE: Yes, your Honour. In terms of the opening words of what now is section 323(1)(c), we accept that the wording is the same as recommended by the authors of the Weinberg report, but it is clear that there has been some consideration of both the structure and the nature of that section by the legislature prior to bringing those matters in.

Undoubtedly, the authors of the Weinberg report felt that this phrase somehow imported the concepts of what they have described as a completed conspiracy, but in our submission, that is not reflected in the language of the statute; it does not give any work for the word “intentionally” to do in subparagraph (a); it does not deal with the fact that those words have been adopted from the common law; and it, particularly, does not deal with the extrinsic material, which makes no reference to this purported significant change to the law relating to group activity, which would take the State of Victoria into a completely different category to the other States.

So, perhaps, if at that juncture, if I might take the Court to the explanatory materials, or the extrinsic materials.  First, the second reading speech for the Abolition of Defensive Homicide Bill 2014, which your Honours will find commencing at page 919 of the joint book of authorities.  It is at page 920 that I wish to take the Court.  First, you will see that there is an overview of the Crimes Amendment (Abolition of Defensive Homicide) Bill.  Then, on the following page, page 921, the eighth paragraph in the first column indicates very briefly – this is in the statement of compatibility for the Charter of Human Rights and Responsibilities – that:

The reform of the law of complicity and the amendments to the Jury Directions Act do not limit the right to a fair hearing set out in section 24 of the charter act.  These provisions are designed to enhance the right to a fair trial by, in the case of complicity, simplifying the legal framework in accordance with general criminal law principles –

In our respectful submission, that language of simplification is important.  It is not creating a new set of rules; it is really reflective of the removal of some of the distinctions, such as aid as in the first degree, aid as after the fact; those sort of matters that – removal of the requirement of presence for types of complicity.  Then, if I could take the Court to page 922 of the court book, so the following page, and the last two paragraphs on that page, you will see that it states:

In line with the recommendations of the Weinberg report, the bill will amend the Crimes Act 1958 to provide that a person who is involved in the commission of an offence is taken to have committed the offence. A person is involved in the commission of an offence if, for example, they assist or encourage the offence, or if they enter into an agreement or understanding with another person to commit the offence.

Except for extended common purpose, these provisions have a similar scope to the common law doctrines, but remove confusing and unhelpful distinctions between different types of complicity.

Your Honours will then see that there is quite a detailed description of the changes that are said to be wrought to the concept of extended common purpose, but no reference in the second reading speech to a significant change in the status of group activity.

The difference is even more stark when one goes to the explanatory memorandum to the Crimes Amendment (Abolition of Defensive Homicide) Bill 2014.  That commences at page 924 of the joint book of authorities, but I wish to take the Court to page 936 of the book, which is page 13 of that report.  The language of this document, in our submission, is illustrative.  It provides that:

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.

So, again, we see the same language used – that is, “covers the behaviour” or “covers by” – in relation to subparagraph (1)(a), which everybody accepts is essentially a codification and adoption of the principles of common law, and section 323(1)(c), which the appellant submits reflects the legislature’s intention to pick up and adopt the general principles applying to group activity.

Like the second reading speech, there is then an extensive discussion in the following paragraphs of the changes wrought to the concept of extended common purpose by the legislation, much more detailed, much clearer in their intention to impose a change.  If I could take the Court to the fifth paragraph that starts “New section 323(1)(b)”, you can compare and contrast that language where it says:

New section 323(1)(b) extends liability in relation to aiding, abetting, counselling and procuring at common law.

Likewise, when we go to paragraph 6, the language is again the language of change:

New section 323(1)(d), in conjunction with new section 324C(2), narrows the current common law.

So, in both cases, one can see the contrast to the language used for subsection (1)(a) and subsection (1)(c).  It is also apparent that there is a distinction retained implicitly, if I can take the Court to the following page, 937 of the court book, page 14 of that document.  The final paragraph, which is the eighth paragraph, provides that:

The common law test –

this is the discussion about withdrawal:

The common law test may apply differently depending upon whether a person has aided and abetted, counselled or procured, or been involved in a joint common enterprise.  The greater a person’s involvement in an offence, the more the person will need to do to effectively withdraw from that offence.  While new section 324C abolishes the common law concerning the ways in which a person may be held to have been complicit in the commission of an offence, that section does not abolish the common law concerning withdrawal from an offence.

In our submission, that is important because in leaving the law as to withdrawal, which has two different tests – one for aiders and abetters, and one for those involved in group activity – the legislature has again reflected and acknowledged the difference in the nature of those two liabilities.

GLEESON J:   Just looking two paragraphs up on page 937, the first sentence says:

It is clear that liability is derivative –

What does “derivative” mean in that context?

MS RUDDLE:   So, in our submission, that is a similar reference to the one your Honour took me to before at paragraph 2.44 of the Weinberg report.  It is clearly, when one reads the entire paragraph – and you really, in my submission, have to read the whole thing together – a reference to the necessary precondition of an offence having been committed before anyone can be complicit in that offence.

EDELMAN J:   Having been committed by another person.

MS RUDDLE:   Not necessarily another person, your Honour.  An offence has to be committed in order for complicit liability to attach.

EDELMAN J:   Not necessarily by another person?  So, you can be complicit in your own offence?

MS RUDDLE:   Where there are actors acting together in a joint activity, it may be that parts of the offence are committed by the complicit offender and parts by their co‑offenders.  But it is not that an entire offence needs to be committed by another person and you do not commit part of that offence – that is the point that I am seeking to make, that of course in a joint activity, the complete offence might be made up of parts by different offenders.

GAGELER J:   The facts in McAuliffe are a good example, are they not?

MS RUDDLE:   Yes, indeed, your Honour.

EDELMAN J:   But joint enterprise – of course you do not need someone else to have committed the offence because it is primary liability, and you are liable for having committed the offence yourself, even though another’s acts may be attributed to you.  As I understand what the reference here to “It is clear that liability is derivative” is talking about is what has always been meant by derivative at common law, which is derived from liability of another.

MS RUDDLE:   In my submission, when one looks at particularly the language of the Weinberg report at the paragraph her Honour Justice Gleeson took me to, it is clear that the authors of that report have used “derivative” in two different fashions:  one to reflect the common understanding set out and discussed by this Court in Mitchell, that an offence needs to be committed; then again, in a different way, to reflect the two separate concepts, one of primary and one of derivative liability, in those two distinctions of joint criminal enterprise and aiders and abetters.

Of course, my learned friends put that paragraph against our interpretation in their written case, and in our submission it does not support what ‑ ‑ ‑

EDELMAN J:   But it seems to me – the paragraph that you have just taken us to in the EM, where it says:

It is clear that liability is derivative, as an offence has to have been committed for a person to be complicit in that offence.

That is talking about, as I understand it, the common law notion, for example, of aiders and abetters, that there needs to be an offence committed by some other person, which is why they go on to say, as the common law had recognised:

this does not require any other person to be prosecuted for, or found guilty of –

as long as in the prosecution of the aider and abetter it is found that there had been some other, perhaps unknown, person who had committed the offence.

MS RUDDLE:   Yes, your Honour.  That is exactly what we submit they are making reference to.  But by use of the word “derivative” in that context, they are talking about the general concepts of the necessity for a crime to have been committed.  So, again, the starting point where the authors of the Weinberg report make reference to “derivative” or liability being derivative, this is what they are talking about.  It is confusing to use the phrase in two different ways, but in my submission that is what the authors of the report have done, and the authors of this document have picked up.  Sorry, your Honour.

GAGELER J: Getting back to the statutory language, the explanatory memorandum in that paragraph on page 14 that we have been discussing, it is clear that, in context, is commenting on the structure of section 324(1), is it not?

MS RUDDLE:   Yes, your Honour.

GAGELER J:   Which says:

if an offence . . . is committed, a person who is involved in the commission of the offence is taken to have committed the offence –

I do not take the word “derivative” to be doing anything more in that commentary on that provision than referring to the structure of that provision itself.  First find the offence committed, and then find the person involved, determined in accordance with section 323.

MS RUDDLE:   Yes, your Honour.  In our submission, it strongly mirrors the structure of the Western Australian and Queensland Criminal Codes that were the subject of consideration by this Court in both Barlow and Pickett, particularly section 7 of the Code starts with the words:

When an offence is committed –

and section 324 uses the phrase:

if an offence . . . is committed –

So, they are very similar in their structure.

GORDON J:   Let us put the Codes aside and come back to 324(1).  If you accept, as Justice Gageler has put to you, the proper construction of 324(1), does it mean in the “if an offence . . . is committed” in the first line to make it work with 323(1)(c) that that means if the agreement has been performed amounting to an offence?

MS RUDDLE:   Yes, your Honour.

GORDON J:   Yes.

MS RUDDLE: And, in our submission, the plain words of section 323(1)(c) – if you gave those words to a jury member – and this is what these changes were designed to do, to make this simpler for jury members – and say, these two people entered into an agreement to commit an offence, a jury would consider that as being agreed to do the things that were done.

GORDON J:   Yes.  So, one reads “if an offence” – that is, if the agreement to do the offence is performed and therefore it amounts to an offence, an offence is being committed, then you are both liable. 

MS RUDDLE:   Yes.  In our submission, that is how the jury was charged in this case, and the error of the Court of Appeal in adding the requirement that the complicit offenders have some additional knowledge that is said to be – the court describes it as the hinging of the word “involvement” in (1)(a) into (1)(c).  In our submission, that cannot be borne out by the statutory language.

GORDON J:   One of the complications may well have been here – although, it does not affect the constructions – of course, these were absolute liability and strict liability offences, and that seemed to be the thing which caused the issues.  Whereas, if the agreement is to sexually penetrate Daisy, who happens to be under 12, the offence is committed.

MS RUDDLE:   That is our submission, yes.

GORDON J:   Yes, I see.  And the same in relation to the supply of drugs; I agree to supply drugs to Daisy and Katie, who happen to be under 18.

MS RUDDLE:   Yes.  In the case of the supply of drugs cases, any of the individual offenders could have proven their reasonable belief.

GORDON J:   Separately.

MS RUDDLE:   Separately. Then a pathway to acquittal exists individually for them. But that is not the work of section 323(1)(c).

GAGELER J:   So, here we have an offence, relevantly, that includes conduct elements and what might be called circumstantial elements. In section 323(1)(c), as I understand it, you say the word “offence” is limited to the conduct elements. Is that correct?

MS RUDDLE:   Yes.

GAGELER J:   In section 324(1):

if an offence . . . is committed –

do you read the word “offence” in that narrow way, or is it the entirety of the offence; all elements of the offence?

MS RUDDLE:   In my submission, you still read it in that same narrow way.  It is the word “intentional” that does the work of adding the need for knowledge.

GAGELER J:   No, I am sorry, 324(1).

MS RUDDLE:   Sorry, 324(1).  No.  In our submission, you would have to read that as the whole of the offence, as in the concatenation of circumstances that render somebody liable to punishment.

GAGELER J:   All right.  So, can we stick with this word “offence” for a moment.  In section 323(1), how do you read it in paragraph (a)?

MS RUDDLE:   In all of the paragraphs of – sorry, of 323(1), it is our submission that it relates to the acts.

GAGELER J:   Just the conduct?

MS RUDDLE:   Just the conduct, because that is what people agreed to do or that is what people assist in.  Once one moves to section 323(2) and onwards, we accept that the only rational reading of that word in those contexts is the concatenation of circumstances that renders one liable to punishment. 

We accept, of course, that ordinarily principles of statutory construction would see legislature use the word in the same way throughout the section, but that is a rebuttable presumption, in our respectful submission, and when one looks at the plain wording of section 323(1), it is clear that that word the “offence” must attach to the conduct.

GAGELER J:   And solely to the conduct.

MS RUDDLE:   Yes, your Honour.

GAGELER J:   Now, it is very difficult to read section 323(2) as using the word “offence” in some different way, given that it is referring to how you interpret and apply section 323(1), is it not?

MS RUDDLE:   Yes, your Honour.  In our submission, particularly the second use of the word “offence”, was in fact was encouraged to commit the offence.  Logically, it would mean the whole of the offence, being the concatenation of ‑ ‑ ‑

EDELMAN J:   I must say, I cannot understand how you can treat 323(1) – let us start with (1)(a), for example.  How can “offence” mean anything other than the completed offence if it is going to be consistent with common law?  There are many, many cases at common law that say that in order to be liable for aiding and abetting there has to be another person who has completed an offence, and that is all elements of the offence.

MS RUDDLE:   Yes, your Honour, but in our submission, that is the work of the word “intentionally” in that circumstance.

EDELMAN J:   Yes, but – because if you accidentally assist somebody who has committed an offence, then you have not aided and abetted.

MS RUDDLE:   Yes, your Honour.

EDELMAN J:   But there still has to be “offence” in 323(1)(a).  It still has to involve another person having both the mental elements and the physical elements of the offence, otherwise there is a radical departure from the common law.

MS RUDDLE:   I accept that, your Honour.

GORDON J:   I mean, I do not understand why you shy away from that submission, because it does no harm to the Crown’s position.  I mean, the consistency of language would follow from a proper – or classic principles of statutory construction.  One has to have – I mean, just take the offence here, the offence here is, as we have been discussing, a physical act done, agreement to do it, in relation to a child who happens to be under 12.  The offence is – one does not have to sit there and determine whether it is acts, conduct, whether there is circumstance – that is the offence.

MS RUDDLE:   Yes, your Honour.

GORDON J:   The same construction can apply with (a), can it not?

MS RUDDLE:   Yes, I accept that, your Honour.

GORDON J:   So, what is the downside, or why do we not embrace that?

MS RUDDLE:   I am happy for the Court to embrace that.  I withdraw my initial position on that.  I accept that in that context ‑ ‑ ‑

GORDON J:   Well, do not withdraw it unless you need to.  It is just that ‑ ‑ ‑

GAGELER J:   Well, I would like to know what your positive submission is then.

MS RUDDLE:   Yes, my positive submission is that this section was intended to pick up the common law and therefore must mean the concatenation of circumstances that renders one liable for punishment.  In particular, in this case, we accept ‑ ‑ ‑

GAGELER J:   So which section – I am sorry, I am getting confused.

MS RUDDLE:   I am sorry, your Honour, section 323(1)(a).  To intentionally aid and abet an offence one must have – we accept the principles in Giorgianni apply and one must have knowledge of all the essential facts.  So, in that case, if it was not aiding and abetting, we accept that knowledge of Daisy’s age would have been a factor that needed to be proven; where it is a joint criminal enterprise, we submit it is not.  That reflects the difference between aiding and abetting at common law and in this section.

EDELMAN J:   Because when you agree to do something or have an understanding that something will be done by somebody else, their actions are the same as your actions.  You have agreed that the actions be performed, it does not matter at common law who the person is that ultimately goes ahead and does those actions.

MS RUDDLE:   Yes.  In our submission, the common law principles are picked up by the use of the words “agreement, arrangement or understanding”.

EDELMAN J:   That is the essence of your submission, is it not?

MS RUDDLE:   It is entirely the essence of my submission, yes, your Honour.  In particular, one does not even need to go back to the common law to get to that point.  That is what a jury would understand those words to mean.  An agreement to do something is an agreement to do acts.  It does not, in our submission, import – as the Court of Appeal has done here – some additional element of knowledge about matters that are not required to be proven. 

GAGELER J:   But that additional element of knowledge is in (a).

MS RUDDLE:   Yes, I accept that, your Honour.

GAGELER J:   It cannot ‑ ‑ ‑

GLEESON J:   It is in (a) through the word “offence” or through the word “intentionally”?

MS RUDDLE:   In our submission, you have to read the whole sentence together; you cannot divvy them up in this way.  It does result in “offence” meaning two different things in (a) and (c), but in our submission, that is permissible because one needs to look at the whole of the sentence and what is intended by the legislation bringing this section in.

I accept, of course, that the Code discussed in both the cases of Pickett and Barlow is different, but in our submission, the ultimate results are the same; that the word “offence” in subsection (c) should be read as the acts, the subject of the agreement.  That, in our submission, is incredibly important in this case, and you can see – and I cannot recall which of your Honours said – that there seems to have been the strict liability, or the lack of requirement for “intention” that has set the Court of Appeal off on a journey that, in our submission, has taken them to the wrong place.  We also submit that section ‑ ‑ ‑

EDELMAN J:   I am not sure that is right for (c).  It might be on your case on the facts before the Court and the particular offence that is involved, but if you had an offence, for example, that did require knowledge of the age, and an agreement was entered into for sexual penetration and so on, would there not also need to be knowledge of each person who was party to the agreement of the age in those circumstances?

MS RUDDLE:   Yes, your Honour, but their individual knowledge would impact their individual intention.  So, if the child was, for instance, 14, and two of the offenders knew that she was 14, and one of the offenders reasonably believed that she was 18, in our submission, there would be a pathway to acquittal because there is a defence available to that offender not available to the others that ‑ ‑ ‑

EDELMAN J:   I am not taking about defences.  I am just saying if we had a different offence – take away offences of sexual penetration, because section 323 applies generally to offences – if you had a different offence where knowledge of a particular fact was required, then the fact that there was an agreement to commit the offence would require knowledge by all of the parties to the agreement in order to satisfy their liability for that offence.

MS RUDDLE:   If knowledge was an element of the offence? 

EDELMAN J:   Yes.

MS RUDDLE: Yes, your Honour. So, in our submission, the addition of the fault element, over and above the elements of the offence, is where the Court of Appeal has fallen into error in its interpretation of section 323(1)(c). In our submission, it is important to look at the other provisions that came in at the same time, particularly section 324B, which provides that:

A person may be found guilty of an offence by virtue of section 324 if the trier of fact is satisfied that the person is guilty either as the person who committed the offence or as a person involved in the commission of the offence but is unable to determine which applies.

So, in this particular scenario, the Court of Appeal has said where the individual – the person who penetrates Daisy – sexually penetrates Daisy, they do not need to know their age to be found liable for the offending. Where they are the complicit offender, they do need to know that, by virtue of some fault element read into section 323(1)(c). However, if you just take the following small change to the factual scenario and imagine that if, before Daisy is penetrated seven times, she is blindfolded and we do not know which of the three offenders sexually penetrated Daisy on each of those seven occasions, by logic, section 324B would say that makes no difference, because the Crown can prove that these three men were in this agreement and the acts that followed were in line with that agreement. That, in our submission, is what the combined effect of 323(1)(c) and 234B are.

But, on the Court of Appeal’s interpretation, because we are using section 323(1)(c), an additional fault element of knowledge of the age of the victim or the complainant is required. So that, to prove each of those seven offences, the Crown would be required on that reasoning to prove knowledge by each offender of the age of the child. That is despite it not being an element of the offence under section 49A, and mistaken belief in age not being a defence, pursuant to section 49ZC. So, on this interpretation – and we say it is important to look at the consequences of the interpretation in the concept of statutory construction – section 324 is rendered useless.

GLEESON J:   So, in the Weinberg report, the consequences are described at paragraph 2.304 that the section ensures that:

where an accused is charged with the substantive offence as the principal offender, the trier of fact may instead determine . . . that the accused is guilty under these provisions.

That explanation of the consequence is consistent with your submission.

MS RUDDLE:   Yes, your Honour.  Given that the sections were all brought in together, it is incumbent on the Court to read them coherently where they can and, in our submission, the only coherent determination is defined at – section 321C picks up the primary liability at common law that agreement just means – agreement to commit an offence means agreement to commit the acts.  That is all.

GAGELER J:   Section 324B in its application to joint criminal enterprise, I think, is a reflection of the common law position, is it not?

MS RUDDLE:   Yes, your Honour, and again, similar to the situation in McAuliffe.

GORDON J:   Sorry, I missed that last comment.

MS RUDDLE:   It is similar to the situation in McAuliffe that his Honour Justice Gageler highlighted in discussion earlier.

GORDON J:   Thank you.

MS RUDDLE: So, it is the submission of the appellant that rendering all complicit liability derivative in the way that the court has purported to do in this case will create a conceptual difficulty for juries, particularly where section 324B has application, or where an offence has been jointly committed in that each offender committed separate acts that combined make up the act. Because, after all, it is the acts and omissions constituting the offence that are attributed to a party to a joint criminal venture and not the crime constituted by those acts. That is what the legislature intended by section 323(1)(c). If your Honours might give me a moment to speak with my junior to see that I have covered everything.

Unless I can be of further assistance to the Court, those are the matters for the appellant.

GAGELER J:   Yes, thank you, Ms Ruddle.

MS RUDDLE:   May it please the Court.

GAGELER J:   Mr Kassimatis.

MR KASSIMATIS:   If the Court pleases.  Without meaning to be flippant about it, it would appear that “derivative” means something more than “derivative”, depending on how one reads it, and “offence” does not always mean “offence”.  So, we are not off to a great start in terms of construing the statute.

GAGELER J:   Well, the word “derivative”, on my reading, is not in the statute.

MR KASSIMATIS:   No, it is not.  And part of the problem, in our respectful submission, which the appellant faces is that in order to make sense of the statute, the appellant has embarked upon a kind of statutory exercise and applied it to the extrinsic materials.  Look at the way they went into detail about that extended common purpose, they did not say anything other than something very briefly about 323(1)(c) – you can infer from that, (a), (b), (c).

The reason why very little is said about subsection 1(c), of course, is because the legislature adopted the recommendation – the draft – the recommendation made by the authors of the Weinberg report.  That was not the case in the area of extended common purpose where the legislature more or less put together a halfway house.

EDELMAN J: You ultimately have to say that the explanatory memorandum is wrong when it says that section 323(1)(c) covers group activity that would be covered by common law doctrines of acting in concert.

MR KASSIMATIS:   Yes, except that it also – it is not hard to do, because it also says that 324(1) renders all liability derivative.

EDELMAN J:   But again, that then comes back to ‑ ‑ ‑

MR KASSIMATIS:   What is derivative.

EDELMAN J:   ‑ ‑ ‑ semantic debates about what is meant by “derivative”.

MR KASSIMATIS: We begin with the statute itself. In our respectful submission, two things should perhaps inform your Honours’ task above all else. The first is that, unmistakably, section 324(1) renders liability derivative. The second is that “offence”, in our respectful submission, must mean the same in the relevant provisions, the relevant complicity provisions.

In forming both those matters, or perhaps supplementing those two matters, is that what is also perhaps unmistakably the intent, whether one looks to the statute itself, or to the extrinsic materials, is that it was intended that there be a fundamental change to the way complicity is looked at.  The effective corollary of my learned friend’s submissions is that the new sections did not really do much.  I mean, I think she used the word “reflective”.

If there was an intention to fundamentally change the way the criminal law looks at complicity in the State of Victoria, and in doing so, the legislature is taken to have done little more than preserve accessorial liability in paragraph (1)(a) and more or less preserve joint liability, primary joint liability, in (1)(c), well, that is not easy to reconcile with an intention to embark upon fundamental change.

GAGELER J:   Something happened between the report and the explanatory memorandum.

MR KASSIMATIS:   Yes.

GAGELER J:   The problem is that the explanatory memorandum is pretty clear that (a) is meant to reflect the common law as stated in Giorgianni and (c) is meant to reflect the common law stated, relevantly, in McAuliffe.  If that is the statutory intention, we have to work out whether the words can be made to fit that intention, and frankly I find it a little difficult, but it is possibly able to be done.

MR KASSIMATIS:   The task of construing the statute, of course, goes on, and so one looks first – and perhaps all these are really just examples of what I have already said – first and foremost, there is an abolition of the common law.

GORDON J:   Sorry, can you speak up?

MR KASSIMATIS:   Certainly so, I beg your pardon.  There is an abolition of the common law insofar as it related to complicity.  Not just the common law doctrines but the language of those doctrines.  Then, there is a choice of agreement, arrangement, and understanding.  We do not accept the submission made by the appellant that these somehow represent – it was not quite put as high as this, but the effect of the submission was that these were, effectively, terms of art.  They are not.

In our respectful submission, what the legislature has sought to do is put forward a composite phrase that creates an ambit for liability that extends from liability for agreement, and the emphasis is – and that is, perhaps, the most important difference between the statutory scheme and the common law that it replaced.  The emphasis in the statutory scheme in (1)(c) is about agreement.  It is not about participation, it is not about acts, it is about knowledge.  That is why the Court of Appeal – and it was open to them, and they were correct to do so – that is why it is open to them to impute that if one is entering into an agreement, they are doing so criminally; that is, with knowledge.

EDELMAN J:   Can I just ask, then, how that submission is consistent with the words of 323?  Even putting aside the statements in the EM about whether or not 323 reflects the common law, if you read 323 with 324(1), is the effect of it not that a person is involved in the commission of an offence, and then we know being involved in the commission of an offence means you are taken to have committed the offence.

MR KASSIMATIS:   Yes.

EDELMAN J:   So, we reach the joint conclusion that a person has committed the offence if the person “enters into an agreement, arrangement or understanding with another person to commit the offence”.  That is almost verbatim, McAuliffe, Osland.

GORDON J:   In other words ‑ ‑ ‑

EDELMAN J:   You have committed the offence if you enter into an agreement to commit the offence.

MR KASSIMATIS:   Yes, our submission is if one enters – McAuliffe was a case about performing acts from which one could infer participation and thereby knowledge sufficient to make good the criminal agreement.  In this particular case, because the foundational basis for subsection (1)(c) is the law of conspiracy, the emphasis is on the agreement, and that is why the language is chosen, and that is why there is no reference to acts and participation, because the emphasis is on the inchoate nature of the agreement.

Why we say that knowledge is a necessary prerequisite to liability under (1)(c) is because it is implicit, as in the law of conspiracy, it is intrinsic to liability, joint liability, in this case as a result of a conspiracy made out a completed conspiracy.  It is implicit that one join the agreement in a manner that renders one criminal in the sense that you need knowledge, knowledge of the essential facts of the agreement into which one is a party.

GAGELER J:   Why is the root of section 323(1)(c) conspiracy?

MR KASSIMATIS:   Because that is what the Weinberg report tells us, and there does not appear to be any withdrawal from that in the legislature’s adoption of it.

EDELMAN J:   Well, the Weinberg report is drawing analogies with completed conspiracy ‑ ‑ ‑

MR KASSIMATIS:   Completed conspiracies, yes.

EDELMAN J:   ‑ ‑ ‑ and there may be a big debate about whether or not an agreement to perform an act which is then fulfilled is best characterised as a completed conspiracy.

MR KASSIMATIS:   Yes.

EDELMAN J:    But there is no suggestion that Parliament picked up that analogy, is there?

MR KASSIMATIS:   No, no.  The submission is that the foundational basis for (1)(c) should be seen to be the recommendation that that kind of completed conspiracy basis was taken on by – and that should inform how one sees – is interpreted.

GAGELER J:   I suppose you could characterise any joint criminal enterprise as a completed conspiracy.

MR KASSIMATIS:   Yes, but the implications are different.  In many ways, you can interpret any kind of aid and abet or assistance as a joint criminal enterprise; you can put it either way.  That is why, in our submission, there is not really much to be made about this statutory framework and its terms.  I mean, if the intention was to effect real change, or if the Court finds that (1)(a) is simply aiding and abetting – and I am now repeating myself – and (1)(c) is joint criminal enterprise, the legislature has failed; failed in its subjective intent.

GORDON J:   I do not know that that is quite right.  It is not entirely relevant to the issues here, but we know, for example, that (1)(d) is a different formulation to that propounded by the Weinberg report, so the change that was recommended by the author was not adopted.

MR KASSIMATIS:   That is undoubtedly so, with respect.

GORDON J:   So, we have, as Justice Gageler put to you, there is a distinction between – something happened between the report and the legislation.  But we do know that, at least, on the face of it, (1)(a) picked up some of the recommendations made by the Weinberg report.

MR KASSIMATIS:   Extended common purpose is no doubt now a different species, yes.

GORDON J:   So, I think we need to be – generalisations are difficult.

MR KASSIMATIS:   I was not clear as I should have been.

GORDON J:   That is all right.

MR KASSIMATIS:   What I am really saying is that the intention was to make fundamental changes to the law of complicity.

GORDON J:   Right.  Is one other way of putting it to actually not start with 323, but actually start with 324, which is the way in which, I think, Justice Edelman just put it to you?

MR KASSIMATIS:   This is what we call the derivative.

GORDON J:   No, it is not even derivative.  If one just starts with 324 and asks, if an offence is committed – that is, one starts and asks oneself if an offence is being committed – then – and here we know there are to be offences committed – then the responsibility or liability for that is identified by reference to those categories of persons set out in (a), (b), (c) and (d) of 323.  Here, we had an agreement between young men to do certain acts, which constituted an offence.  What is wrong with that analysis?

MR KASSIMATIS:   Because, with respect, in doing so we are doing no more than adopting the common law.  That is effectively McAuliffe.

GORDON J:   It is.

MR KASSIMATIS:   In our respectful submission, the purpose of (1)(c) is to build into the notion of an agreement, knowledge.  In order to be found guilty of agreeing – not to be found guilty of participating in some way to an agreement which is then held to be criminal, in order to agree or arrange or enter into an understanding to commit an offence – the offence – because it is the state of mind of the participants – that is the emphasis, rather than their actions.  Because it is the state of mind, then you have got to have knowledge of the essential facts.

GORDON J:   So, the knowledge of the essential facts – this is the point I put to Ms Ruddle – we have an absolute liability offence.  Here, the essential facts were sexual penetration of Daisy, who happened to be under 12.  They agreed to sexually penetrate Daisy, who happened to be under 12.  The offence is complete.

MR KASSIMATIS:   The offence has, as a prerequisite, that she be under 12.

GLEESON J:   But the purpose that you have identified is consistent with the purpose that is identified by the Weinberg report, it sees this language as seeking to align the fault elements for accessorial liability and joint criminal enterprise.  But it does not deal with section 324B.

MR KASSIMATIS:   No.  324B – and I will just make a note, if I may – excuse me.  The explanatory memorandum, joint book of authorities page 938 says that 324B appears to be modelled on section 11.2(7) of the Criminal Code.  That is said to be no more than an instructive provision.  Page 938 of the joint book of authorities.  It is the second‑last paragraph.

GLEESON J:   I think, Mr Kassimatis, this was the example that Ms Ruddle gave of the blindfolded person, and there being a group.  Do you accept that that is one of the circumstances that might be picked up by section 324B?

MR KASSIMATIS:   Yes.

JAGOT J:   If you were reading 323 and 324 with fresh eyes, you would arguably read (a) – the qualification of intention – as referable only to the elements of the offence, as opposed to – as Justice Gordon has been suggesting – that if the person is, in fact, under 12, whether or not you knew about it, you are intentionally assisting, encouraging, or directing the offence.

In one sense, the only reason that you would not read (a) that way is what the explanatory memorandum says, which directs you that you read it consistently with pre‑existing common law, Giorgianni, et cetera, and therefore the knowledge requirement applies to all elements of the offence, including the objective element.  If you approach it from that point of view, it does become hard to understand why (c) – agreement, arrangement, or understanding – broadens out to require knowledge of the fact of being under 12.  It is not a natural reading of it, to me.

MR KASSIMATIS:   No, but our position is that the intention was to introduce (c) so that it aligned itself with the same fault element that exists in (a).

JAGOT J:   Because of the Weinberg report?

MR KASSIMATIS:   Yes.

JAGOT J:   Yes.

MR KASSIMATIS:   And it is not just the Weinberg report.  It is the choice to adopt a composite phrase:  agreement, arrangement, understanding – or a composite set of notions.

EDELMAN J:   It would not just be knowledge on your submission, it would also be intention as well, would it not?

MR KASSIMATIS:   Yes, it would.

EDELMAN J:   So, if for example, there is an objective plain and clear agreement that is entered into to commit an offence – let us say, a bank robbery – and during the course of the bank robbery, one of the parties holding the guns subjectively changes their mind and no longer intends that the robbery be committed, that subjective lack of intention would mean that they are no longer liable under 323(1)(c).

MR KASSIMATIS:   They enter into an agreement, and they enter the bank.  Halfway through what was said to be the object of the agreement, one of them decides they no longer wanted to be involved.

EDELMAN J:   Well, whatever happens, there is an agreement that has been reached and, before that party performs any part of the agreement, just subjectively forms a different intention, and never communicates that to any other party.  You say that the radical change that is brought about by this provision is that the agreement, from that party’s point of view, is effectively nullified because they have no longer got the intention.

MR KASSIMATIS:   Yes.

GORDON J:   I suppose you get some support for your contentions from 324C.

MR KASSIMATIS:   Again this is, in our respectful submission, because the text has to be read as cohesively as it can be, so that “offence” means the same thing throughout, that should be the guiding – if there is going to be a guide to what was intended and how much of the Weinberg report was adopted, the starting point has to be and, I understand what my learned friend says, it is a rebuttable canon, but - - -

GAGELER J:   One starting point might be 324C(1) which, taken at face value, would say forget about Giorgianni.  And it may well be that the only problem here is with the statement in the explanatory memorandum which suggests that paragraph (a) of section 323(1) reflects Giorgianni.  It is only really by starting with Giorgianni’s view of aiding and abetting informing the construction of 323(1)(a), that the problem arises under (c), I think.

MR KASSIMATIS:   Sure, but in that respect we have consistency across the board.  We have the Weinberg report saying that is what it means and should mean, and we have got the explanatory memorandum.

EDELMAN J:   Is not the purpose of 324C(1) to do the same thing that the Criminal Codes did, and what Stephen in his Digest tried to do, which was to try to abolish some of the really fine common law distinctions, such as whether you had to be present at the scene or what circumstances you could be liable for complicity as derivative liability if you were absent from the actual scene, and so on, but not to abolish the core ideas that are caught up in the notion of assisting, encouraging, or directing.

MR KASSIMATIS:   No, with respect.  We do not accept that, with respect.  The law had more or less developed to a point where joint criminal enterprise – leaving aside extended common purpose, joint criminal enterprise had subsumed a lot of those old common law doctrines; principal in the first degree, principal in the second degree, counselling and procuring, common purpose, common design, acting in concert.  No, this is more fundamental, and it is seen as fundamental in the way that the Weinberg report elaborates on what it means by fundamental change.  I mean, what is up for grabs is what is the content of that change; how far has it extended?  But it is, with respect, not sufficient to say that all the statute did was do away with some fine distinctions at common law, which had more or less been put behind.  By the time we get to Miller and Mitchell, the law of joint criminal enterprise was not as complicated as it once was.  Now, I have lost where I was in terms of ‑ ‑ ‑ 

EDELMAN J: Section 324C(1), on one view, is not talking about joint criminal enterprise at all.  It is talking about aiding, abetting, counselling, and procuring, which, at common law, was always different from joint criminal enterprise.

MR KASSIMATIS:   Yes.

GORDON J:   But (2) is dealing with joint criminal enterprise.

MR KASSIMATIS:   I beg your pardon, your Honour?

GORDON J:   Subsection (2) is dealing with joint criminal enterprise.

MR KASSIMATIS:   Yes.  Now, your Honour, you asked me a question, and I did not answer it, and now I have forgotten what it was.

GORDON J:   That is all right, I think we will move on.  I do have one question.  If – and this is picking up your point about the need for consistency of meaning of “offence” throughout these provisions so one does not have a different meaning – if you start in 324, and you ask yourself, has there been an offence committed which has both, relevantly, the necessary elements, whatever they be, including here, for example, absolute liability.

And then one asks – let us take (a) – did you intentionally assist, encourage or direct the commission of that offence, then the intention is directed at whatever the elements of that offence are, in the sense that one asks, has there been an offence committed, and did you intentionally assist the commission of that offence.  It is the same idea in relation to (c):  has there been an offence committed and was there an agreement to commit that offence, whatever the relevant elements are for the purposes of that offence?

MR KASSIMATIS:   Elements and essential facts.

GORDON J:   That would depend upon what the offence is, because of the nature of the offence.

MR KASSIMATIS:   Yes, but ‑ ‑ ‑

GORDON J:   What is wrong with that analysis?

MR KASSIMATIS:   If we accept that (1)(a) is a – I will use the word – codification of aid and abet, then “offence” means something more than just the elements of the offence.

GORDON J:   If it is not a codification and one is looking at it as a question of construction in the way I have just put it to you, what is wrong with it?

MR KASSIMATIS:   Well, perhaps nothing, save for the fact that it flies in the face of all the material that preceded it in terms of the Weinberg report recommendation, the adoption of it by the explanatory memorandum and then the drafting of the section which is word‑for‑word what was recommended.

GAGELER J:   Part of the question here when we are using that kind of language is what we mean when we talk about elements of an offence.  The Criminal Code (Cth) divides the physical elements of an offence between conduct, the result of conduct and a circumstance in which conduct occurs.

MR KASSIMATIS:   Yes, and that is why perhaps it is safer to talk of essential facts, that is, the elements and necessary circumstances.

GAGELER J:   Well, the necessary circumstance, the age, has to be proved by the Crown beyond reasonable doubt.  It is an element in ‑ ‑ ‑

MR KASSIMATIS:   That is an element, yes.

GAGELER J:   ‑ ‑ ‑ that broader sense.

MR KASSIMATIS:   Yes.

GAGELER J:   In the sense that without it being proved beyond reasonable doubt, criminal liability does not arise.

MR KASSIMATIS:   Yes.  Just pardon me a moment.  Yes, unless there are any further questions, those are our submissions, if the Court pleases.

GAGELER J:   Yes, thank you, Mr Kassimatis.  Ms Ruddle.

MS RUDDLE:   May it please the Court.  If I may, we agree with the suggestion put by her Honour Justice Gordon that the starting point for analysis of these sections is section 324 and that is the logical way that they should be read, and when one looks at them in that context they are, again, substantially similar to the Criminal Code.  We also would respectfully adopt what your Honour Justice Edelman says about what the intention of these provisions was in terms of comparing it to the intention of the Code and the Stephen’s Digest.  That was the point that I was endeavouring, possibly poorly, to make in relation to the similarity of the language of the Criminal Codes of Western Australia and Queensland and the wording of these sections.

My learned friend relies heavily on the concept of these essential facts being an important component, but that is not a phrase that appears anywhere in the legislation.  It is a phrase that is imported by reason of the legislature’s adoption of Giorgianni v The Queen and the concepts that are thereunder.  In our submission, those concepts were not so adopted by subsection (c).

The concept, when one looks at the starting point of 324, has an offence been committed, then going to have you agreed to commit the offence, that language – as your Honour Justice Edelman pointed out in discussion with my learned friend – mirrors the language of the common law in relation to joint criminal enterprise and logically must mean agree to do the things, because when one looks at what an agreement to do something with another person is, it would ordinarily attach to an agreement to do things.  It is not an agreement for somebody else to have a particular mens rea.  You do not say, I am going to rob this bank and think I also want to make sure that the guy carrying the gun also wants to rob the bank.  You agree to pick up the guns, go into the bank and ask for the money.  That constitutes an agreement to commit the offence.

GAGELER J:   Buried in that is the problem with what you mean by “do the thing”.

MS RUDDLE:   Commit the acts.

GAGELER J:   Engage in the conduct.

MS RUDDLE:   Engage in the conduct.  Commit the acts, engage in the conduct.  In our submission, it is not a complex phrase and the jury would not treat it as a complex phrase of, I have decided that I am going to commit each of the elements of them.

GAGELER J:   We are not concerned with the jury.  We are concerned with the meaning of the words that have been enacted by the Parliament.

MS RUDDLE:   Yes, your Honour, but in my submission, the simplicity of the language was designed to assist juries.  This arose from the Simplification of Jury Directions report.  So, when looking at the

legislature’s intention overall – and I have taken the Court through the extrinsic materials which, in my submission, make clear their intention in relation to (a) and (c) – question, of course, as your Honour Justice Gageler pointed out, whether the language bears that out.  In our submission, it does bear it out, that an agreement to commit an offence is an agreement to commit the acts.

The final point that I would pick up is that in relation to section 324C, it is of no assistance to my learned friend’s interpretation that there is some wiping away of the common law, because the language of section 324C(1) abolishes the common law relating to aiding, abetting, counselling, or procuring.  But everyone at the Bar table, legislature, authors of the Weinberg report, all agree that section 323(1)(a) is designed to reflect the common law.  It is designed to remove those fine distinctions between those who are present, those who aid after.  In our submission, the language of section 324C(2), which is identical, does no more than remove those fine distinctions, but still does not overrule hundreds of years of common law as to what constitutes an agreement to commit an offence.

Unless I can be of further assistance, those are the matters for the appellant.

GAGELER J:   Thank you, Ms Ruddle.  The Court will consider its decision in this matter and will adjourn until 9.30 am tomorrow.

AT 11.07 AM THE MATTER WAS ADJOURNED