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5.5.1 - Charge: Counselling and Procuring

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[This charge only applies to offence committed before 1 November 2014. For offences committed after that date, see Charge: Statutory Complicity (Assisting, Encouraging or Directing) or Charge: Statutory Complicity (Assisting, Encouraging or Directing with Recklessness) as appropriate.

This charge should be used where the accused is alleged to have assisted or encouraged the principal offender prior to the offending.

If the accused is alleged to have assisted or encouraged the principal offender at the time of the offending, use Charge: Aiding and Abetting].

NOA has been charged with the offence of NOO. [1] However, it has not been alleged that s/he personally committed the acts that make up that offence. Instead, the prosecution has alleged that s/he committed NOO by assisting or encouraging [insert names of co-offenders] to commit that offence. I must therefore direct you about when a person will be held responsible for assisting or encouraging someone else to commit an offence.

The law says that if someone "counsels or procures" another person to commit an offence, then they will be equally guilty of that offence, regardless of the fact that they did not commit the crime themselves. This is one of the situations in which the law holds a person responsible for the actions of other people.

In order to find NOA guilty of committing NOO by counselling or procuring, the prosecution must prove the following [three/four] [2] elements:

One - that someone committed the offence of NOO. Throughout these directions, I will call the person who committed that offence the "principal offender".

Two - that the accused knew of, or believed in, the essential circumstances needed to establish NOO.

Three - that the accused intentionally assisted or encouraged the principal offender to commit NOO.

If withdrawal is relevant, add the following shaded section

Four - that the accused did not effectively withdraw his/her assistance or encouragement prior to the offence being committed.

Before you can find NOA guilty of NOO by counselling or procuring, you must be satisfied that the prosecution has proven all of these elements beyond reasonable doubt.

I will now explain each of these elements in more detail.

Commission of Offence

The first element that the prosecution must prove is that someone committed the offence of NOO.

In this case, this requires you to be satisfied that all of the following matters have been proven beyond reasonable doubt:

[Describe all of the elements of the offence, explain those elements, and relate them to the facts.]

Knowledge

The second element that the prosecution must prove is that NOA knew all the essential circumstances needed to establish the offence of NOO, or believed that those essential circumstances existed.

The "essential circumstances" that are needed to establish NOO are the [insert number] matters that I just explained to you in relation to the first element. So for this second element to be met, NOA must have known or believed that:

[Summarise all of the elements [3] of the principal offence.]

For this element to be satisfied, you must find that NOA him/herself actually knew of, or believed in, all of these circumstances at the time s/he [describe the alleged conduct constituting the counselling or procuring]. It is not sufficient for you to find that s/he should have known those circumstances.

The prosecution alleged that NOA had the necessary knowledge or belief. [Insert prosecution evidence and/or arguments]. The defence denied this, arguing [insert defence evidence and/or arguments].

Intentional Assistance or Encouragement

The third element that the prosecution must prove is that the accused intentionally assisted or encouraged the principal offender to commit NOO. In this case, it is alleged that NOA did this by what is called "counselling or procuring".

A person counsels or procures the commission of an offence if s/he urges, advises or solicits the principal offender to commit that offence, or encourages or supports him or her to commit it. This can be done by words, action or both.

For this element to be met, you do not need to be satisfied that NOA’s words or actions caused the principal offender to commit the crime. A person can counsel or procure someone to commit an offence even if that other person already intended to commit that offence.

You also do not need to be satisfied that the principal offender was actually assisted or encouraged by NOA’s behaviour. As long as NOA endeavoured to assist or encourage him/her, in circumstances in which the principal offender could potentially have been assisted or encouraged, then this element will be met.

However, you must be satisfied that NOA intentionally counselled or procured the commission of NOO. That is, you must be satisfied that, by saying or doing what s/he did, NOA intended to assist or encourage the principal offender to commit that offence.

[If the relevant offence requires a particular result to have been caused add the following shaded section.]

This does not mean that you have to find that NOA intended [describe the relevant result – e.g., that NOV die].This element will be satisfied if you find that the accused intended to assist or encourage the principal offender to commit the conduct that ultimately caused that result.

In this case, it was alleged that NOA counselled or procured the principal offender to commit NOO by [insert prosecution evidence and/or arguments]. The defence denied this, arguing [insert defence evidence and/or arguments].

It is only if you are satisfied, beyond reasonable doubt, that NOA intentionally assisted or encouraged the principal offender to commit NOO, by counselling or procuring the commission of that offence, that this third element will be met.

Withdrawal

[If withdrawal of the accused’s assistance or encouragement is in issue, add the following shaded section.]

The fourth element that the prosecution must prove is that the accused did not effectively withdraw his/her assistance or encouragement prior to the offence being committed.

The law says that if a person is going to avoid liability by taking back his/her previous assistance or encouragement for a criminal act, his/her withdrawal must be timely and effective. That is, s/he must do everything that s/he can reasonably do to undo the effect of his/her previous assistance or encouragement, in sufficient time for his/her actions to be effective.

Whether the accused has taken all reasonable steps to undo the effect of his/her previous assistance or encouragement is a question for you. You must apply your common sense and experience. For example, in some cases it will be sufficient for the accused to take back any tools he or she has provided for the commission of the crime, and to make it clear that if the principal offender commits the offence, s/he does so without the accused’s approval or support. In other cases it may be necessary for the accused to inform the police of the planned offence.

It is important to emphasise that it is not for the defence to prove that the accused did everything reasonably possible to withdraw his/her previous assistance or encouragement. It is the prosecution who must prove that the accused did not withdraw in a timely and effective manner.

In this case, the prosecution argued that the accused had not done everything s/he reasonably could to withdraw his/her previous assistance or encouragement. [Insert prosecution evidence and/or arguments]. The defence denied this, arguing that NOA’s withdrawal was timely and effective. [Insert defence evidence and/or arguments.]

Application of Law to Evidence

[If not already done, apply the law to the relevant evidence here.]

Summary

To summarise, before you can find NOA guilty of committing NOO by counselling or procuring, the prosecution must prove to you beyond reasonable doubt:

One – that someone committed NOO; and

Two – that NOA knew of, or believed in, the essential circumstances needed to establish NOO; and

Three – that NOA intentionally assisted or encouraged the principal offender to commit NOO, by counselling or procuring the commission of that crime.

[If withdrawal is relevant, add the following shaded section.]

and Four – that NOA did not effectively withdraw his/her earlier assistance or encouragement.

 

If you find that any of these elements have not been proven beyond reasonable doubt, then you must find NOA not guilty of NOO by way of counselling or procuring.

 

Notes

[1] Name of Offence.

[2] If withdrawal is relevant, there are four elements. Otherwise, there are three elements.

[3] If one of the elements of the relevant offence is a particular result (e.g., that the act cause death or serious injury), the judge should make it clear that the accused did not need to know that that result would be achieved. It is sufficient if s/he knew that the principal offender was going to commit the acts which ultimately caused that result, with the necessary state of mind.

Last updated: 1 November 2014

See Also

5.5 - Aiding, Abetting, Counselling or Procuring (Pre-1/11/14)

5.5.2 - Checklist: Counselling and Procuring

5.5.3 - Charge: Aiding and Abetting

5.5.4 - Checklist: Aiding and Abetting