5.2.4 - Charge: Statutory Complicity (Agreement, Arrangement or Understanding with Recklessness)

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[This Charge has been designed for use in cases where the accused is charged with being involved in the commission of an offence under Crimes Act 1958 section 323(1)(d).

For other forms of complicity, see:

Charge: Statutory Complicity (Assisting, Encouraging or Directing)

Charge: Statutory Complicity (Assisting, Encouraging or Directing with Recklessness)

Charge: Statutory Complicity (Agreement, Arrangement or Understanding)

This charge refers to the accused entering into an “agreement”. If the case is conducted on the basis of an “arrangement” or “understanding” then the charge should be modified accordingly.]

The law says that if a person agrees with another person to commit offence A, while aware that it is probable that offence B will be committed in the course of committing or attempting to commit offence A, then he or she may be responsible for offence B. [1]

In this case, NOA has been charged with the offence of [insert charged offence]. However, it has not been alleged that s/he committed that offence alone. [2] Instead, the prosecution has alleged that s/he committed it together with [insert names of co-offenders].

The prosecution case is that NOA and [identify relevant co-offenders] agreed to commit [insert agreed offence] and, in the course of [committing / attempting to commit] that offence, [identify relevant co-offender(s)] committed [insert agreed offence].

In order to find NOA guilty of committing [insert charged offence], the prosecution must prove the following 5 elements:

One – the accused agreed with other people [3] to commit [insert agreed offence], and that the agreement remained in existence when the offence of [insert charged offence] was committed.

Two - that NOA acted to support this agreement.

Three – that a party to the agreement committed [insert charged offence] in the course of carrying out the agreement to commit [insert agreed offence].

Four – that, when NOA agreed to commit [insert agreed offence], s/he [identify mens rea for agreed offence].

Five – that, when NOA agreed to commit [insert agreed offence], s/he was aware that it was probable that [insert charged offence] would be committed in the course of attempting to carry out [insert agreed offence].

Before you can find NOA guilty of [insert charged offence], you must be satisfied that the prosecution has proven all five of these elements beyond reasonable doubt.

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

Agreement to Commit Offence

The first element that the prosecution must prove is that the accused agreed with other people to commit [insert agreed offence], and that the agreement remained in existence when the offence of [insert charged offence] was committed.

There are two parts to this element. First, you must be satisfied that the accused agreed with at least one other person to commit [insert agreed offence].

A person can agree to commit an offence expressly, or you may infer that s/he agreed to commit [insert agreed offence] from the surrounding circumstances. You will recall what I have told you about inferences. [4]

[If the content of the agreement, or the parties’ understanding of the content, is in issue, add the following shaded section.]

NOA must have agreed to commit [insert agreed offence]. This element will not be satisfied if the accused agreed to pursue some other form of activity that is not criminal. However, you do not need to find that NOA and [identify relevant co-offenders] knew they were agreeing to commit a crime. This element will be satisfied as long as they agreed to do something which was, in fact, criminal.

Similarly, you do not need to find that all of the parties had the same purpose or intention when forming that agreement, or were all aware of the consequences of their actions. You do not even have to find that they all agreed on the precise terms of the agreement. For this element to be satisfied, you only need to find that they agreed to commit the particular criminal offence of [insert agreed offence] together.

An example of two people agreeing to commit an offence is where two people agree to commit a bank robbery together, with one of them to buy the gun and give it to the other, who will use it at the bank to steal the money. Each of the two people would have agreed to commit the particular offence of armed robbery. [5]

As I will describe in relation to the fifth element, it is not necessary that the parties agreed to commit [insert charged offence]. For the prosecution to establish liability on this basis, the prosecution must prove that NOA and others agreed to commit [insert agreed offence].

In this case, the prosecution alleged that [specify parties] agreed to commit [insert agreed offence]. They alleged that this agreement was made [insert prosecution evidence about the formation of the agreement].

[If the defence denies that there was an agreement to commit an offence, add the following shaded section.]

The defence denied this, arguing [insert defence evidence and/or arguments].

[If the defence does not deny that there was an agreement, but is contesting liability on other grounds, add the following shaded section.]

The defence does not deny that NOA agreed to commit [insert agreed offence], but argues [outline defence arguments. E.g., “that the accused had withdrawn from that agreement by the time the offence was committed”].

The second part of this element requires the prosecution to prove that the agreement remained in existence when the offence was committed. If there is a possibility that the agreement had been called off before the offence was committed, or that NOA had withdrawn from that agreement then this first element will not be met.

[If withdrawal from the agreement is in issue, add the following shaded section.]

In this case, the defence argued that, [while / even if] NOA had agreed to commit [insert agreed offence], s/he had withdrawn from that agreement by the time the offence was committed. It is for the prosecution to prove that s/he had not done so.

The law says that if a person is going to withdraw from an agreement to commit an offence, 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 the previous agreement with enough time for his/her actions to be effective.

Whether the accused has taken all reasonable steps to undo the effect of the previous agreement is a question for you. You must apply your common sense and experience. For example, in some cases it will be enough for the accused to take back any tools he or she has provided for the commission of the crime, and to make it clear to the other parties that if they continue with the offence, they do so without his or her approval or support. In some cases it may even be necessary for the accused to inform the police of the plan.

It is important to emphasise that it is not for the defence to prove that the accused did everything reasonably possible to withdraw from the agreement. It is the prosecution who must prove that the accused did not withdraw from the agreement 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 from the agreement. [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.]

[If it is alleged that the agreement had been cancelled or completed, add the following shaded section.]

In this case, the defence argued that, while NOA did agree to commit [insert agreed offence], that agreement had been [completed / cancelled] by the time the offence of [insert charged offence] was committed. [Insert defence evidence and/or arguments.] The prosecution disputed this, alleging that the agreement remained in existence at the relevant time. [Insert prosecution evidence and/or arguments.]

It is important to emphasise that it is not for the defence to prove that the agreement had been [completed / cancelled]. It is the prosecution who must prove that the agreement had not had been [completed / cancelled] by the time the offence was committed.

[If the continuing existence of the agreement is not in issue, add the following shaded section.]

In this case, it is not disputed that, if there was an agreement to commit [insert agreed offence], that agreement remained in existence at the time [insert charged offence] was committed. The main issue is [outline main issue[s]. E.g., “whether or not there was such an agreement”].

It is only if you are satisfied, beyond reasonable doubt, that the accused agreed to commit [insert agreed offence], and that the agreement remained in existence when the offence of [insert charged offence] was committed, that this first element will be met.

Participation

The second element that the prosecution must prove is that NOA did something to give effect to the agreement.

[Refer to relevant prosecution and defence evidence and arguments on this element].

For this element, the prosecution must prove, beyond reasonable doubt, that NOA [did something / intentionally avoided doing something] to help the group commit NOO.

Commission of Charged Offence

The third element that the prosecution must prove is that, in the course of carrying out [insert agreed offence], a party to the agreement committed [insert charged offence].

There are also two parts to this element. First, you must be satisfied that a party to the agreement committed [insert charged offence]. This means that you must find that all of the following matters have been proven beyond reasonable doubt:

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

The second part of this element requires the prosecution to prove that a party to the agreement committed [insert charged offence] in the course of carrying out the agreement to commit [insert agreed offence].

In this case the prosecution alleged that [describe relevant prosecution evidence and/or arguments]. The defence denied this, arguing [describe relevant defence evidence and/or arguments].

It is only if you are satisfied that the parties committed [insert charged offence], and that they committed this offence in the course of carrying out the agreement to commit [insert agreed offence], that this third element will be met.

Accused’s Mental State

The fourth element that the prosecution must prove is that the accused had the state of mind necessary to commit [insert agreed offence] when s/he entered into the agreement.

That is, the prosecution must prove that NOA [describe relevant mens rea element] when s/he entered into the agreement.

In this case, the prosecution alleged that NOA had the necessary state of mind. [Describe relevant prosecution evidence and/or arguments.] The defence denied this, arguing [describe relevant defence evidence and/or arguments].

Aware of probability

The fifth element the prosecution must prove is that, when NOA agreed to commit [insert agreed offence], s/he was aware that it was probable that [insert charged offence] would be committed in the course of carrying out [insert agreed offence].

This element therefore looks at NOA’s state of mind when s/he agreed to commit [insert agreed offence]. To prove this element, the prosecution must prove beyond reasonable doubt that s/he was aware that it was probable that, in the course of carrying out the agreement, someone would commit [insert charged offence].

In other words, the prosecution must prove that NOA realised, at the time s/he agreed to commit [insert agreed offence], that it was probable that a person would [identify elements of charged offence]. These are the same [insert number of elements] matters which the prosecution needed to prove in relation to the third element.

[If further direction on the meaning of “probable” is required, add the following shaded section.]

The word “probable” is an ordinary English word. It would not be enough for NOA to have been aware that [insert charged offence] was merely “possible” in the course of carrying out [insert agreed offence]. Rather s/he must have been aware that [insert charged offence] was “probable” or “likely”.

There is an important difference between this element and the third element. The third element looks at what happened in the course of carrying out the agreement. Has the prosecution proved that a party to the agreement committed [insert charged offence]? In contrast, this element looks at what NOA was aware of at the time s/he made the agreement. Has the prosecution proved that s/he was aware that it was probable that someone would commit [insert charged offence]?

There is also an important difference between this element and the first element. The first element looks at whether NOA, together with others, agreed to commit [insert agreed offence]. What did NOA and the others agree? For that element, you are not looking at whether NOA agreed to commit [insert charged offence]. For this fifth element, you are looking only at what was in NOA’s mind. Was s/he aware that it was probable that someone would commit [insert charged offence]?

[Identify relevant prosecution and defence evidence and arguments]

Application of Law to Evidence

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

Defences

[If any defences are open on the evidence, insert relevant directions.]

Summary

To summarise, before you can find NOA guilty of [insert charged offence], the prosecution must prove to you beyond reasonable doubt:

One – That NOA agreed to commit [insert agreed offence], and that the agreement remained in existence when the offence of [insert charged offence] was committed; and

Two - That NOA acted to support this agreement; and

Three – That a party to the agreement committed [insert charged offence] in the course of carrying out the agreement to commit [insert agreed offence]; [6] and

Four – That, when NOA agreed to commit [insert agreed offence], s/he [insert mens rea of agreed offence]; and 

Five – That, when NOA agreed to commit [insert agreed offence], s/he was aware that it was probable that [insert charged offence] would be committed in the course of carrying out [insert agreed offence].

If you find that any of these elements have not been proven beyond reasonable doubt, then you must find NOA not guilty of committing [insert charged offence].

Notes

[1] The judge may include the following example if it would assist: “For example, suppose a person, Mr Smith agrees with Mr Jones, rob a bank. Mr Smith and Mr Jones do not agree to shoot any security guards while they are robbing the bank, but Mr Smith is aware that Mr Jones has a vendetta against security guards and that, if any security guards are present, then he will probably shoot them. .The bank robbery goes ahead, with Mr Smith waiting outside as a getaway car driver, and there is a security guard present. Mr Jones shoots him dead. In that situation, both Mr Smith and Mr Jones will be guilty of murder.”

[2] If complicity is alleged as an alternative to acting as a sole offender, this sentence will need to be modified accordingly.

[3] This charge is based on cases involving multiple co-offenders. If there is only one co-offender, some of the sentences throughout the charge will need to be modified.

[4] This charge is based on the assumption that the judge has already instructed the jury about inferences. It will need to be modified if that has not been done.

[5] If the agreed or charged offence is armed robbery, a different example should be used.

[6] This summary will need to be modified to include the phrase “in the necessary circumstances” if one or more elements of the crime require the physical acts to be committed under certain conditions (e.g., for sexual penetration to be committed in the absence of the complainant’s consent).

Last updated: 27 April 2016

See Also

5.2 - Statutory Complicity (From 1/11/14)

5.2.1 - Charge: Statutory Complicity (Assisting, Encouraging or Directing)

5.2.2 - Charge: Statutory Complicity (Assisting, Encouraging or Directing with Recklessness)

5.2.3 - Charge: Statutory Complicity (Agreement, Arrangement or Understanding)