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5.5.2 - Checklist: Counselling and Procuring

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Three elements the prosecution must prove beyond reasonable doubt:

  1. Someone committed the offence charged; and
  2. The accused knew of, or believed in, the essential circumstances needed to establish that offence; and
  3. The accused intentionally assisted or encouraged the principal offender to commit that offence.

    Commission of the Offence

1. Did someone commit the offence charged?

Consider – Has the prosecution proven all of the elements of that offence?

If Yes, then go to Question 2

If No, then the accused is not guilty of
counselling or procuring the offence charged

Knowledge of Essential Circumstances

 2. Did the accused know of, or believe in, the essential circumstances needed to establish that offence?

Consider – When s/he assisted or encouraged the principal offender to commit the offence charged, did the accused know of, or believe in, all of the matters considered in question 1? [1]

If Yes, then go to Question 3

If No, then the accused is not guilty of
counselling or procuring the offence charged

Assistance or Encouragement

3. Did the accused intentionally assist or encourage the principal offender to commit that offence?

Consider – Did the accused counsel or procure the commission of that offence by urging, advising, soliciting, encouraging or supporting the principal offender to commit it?

Consider - By saying or doing what s/he did, did the accused intend to assist or encourage the principal offender to commit that offence?

If Yes, then the accused is guilty of the offence charged
(as long as you have also answered Yes to questions 1 and 2)

If No, then the accused is not guilty of
counselling or procuring the offence charged

Notes

[1] 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: 23 April 2008

See Also

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

5.5.1 - Charge: Counselling and Procuring

5.5.3 - Charge: Aiding and Abetting

5.5.4 - Checklist: Aiding and Abetting