5.2.2 - Charge: Statutory Complicity (Assisting, Encouraging or Directing 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)(b).

For other forms of complicity, see:

Charge: Statutory Complicity (Assisting, Encouraging or Directing)

Charge: Statutory Complicity (Agreement, Arrangement or Understanding)

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

This charge is written on the basis that the prosecution alleges assistance, encouragement and direction as cumulative or alternative bases of liability. If only one of these bases is relevant, the charge should be adjusted accordingly.]

The law says that if a person assists, encourages or directs 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 personally committed the acts that make up that offence. Instead, the prosecution has alleged that s/he committed [insert charged offence] by assisting, encouraging or directing [insert name/s of principal offender/s] to commit [insert assisted offence] while aware that it was probable that [insert name/s of principal offender/s] would commit [insert charged offence].

In order to find NOA guilty of committing [insert charged offence] by assisting, encouraging or directing, the prosecution must prove the following [four/five] elements [2]:

One - that someone committed the offence of [insert charged offence]. Throughout these directions, I will call the person who committed that offence the “principal offender”.

Two – that the accused assisted, encouraged or directed the principal offender to commit [insert assisted offence].

Three - that the accused provided that assistance, encouragement or direction intentionally.

Four – that the accused intentionally assisted, encouraged or directed the commission of [insert assisted offence] while aware that it was probable that [insert charged offence] would be committed in the course of carrying out [insert assisted offence].

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

Five - 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 [insert charged offence], you must be satisfied that all of these elements have been proven 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 [insert charged offence].

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.]

Assistance, Encouragement or Direction

The second element that the prosecution must prove is that the accused assisted, encouraged or directed the principal offender to commit [insert assisted offence].

The prosecution does not argue that NOA assisted, encouraged or directed NO3P to commit [insert charged offence]. Instead, the prosecution argues that s/he assisted, encouraged or directed NO3P to commit a different offence, [insert assisted offence].

In this case, the prosecution argue that NOA provided this assistance, encouragement or direction by [identify relevant prosecution evidence and arguments]. The defence deny this, and say [identify relevant defence evidence and arguments].

You do not need to be satisfied that NOA’s words or actions caused the principal offender to commit the crime. A person can assist, encourage or direct 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, encouraged or directed by NOA’s conduct. As long as NOA makes an effort to assist, encourage or direct him/her, in circumstances in which the principal offender could have been assisted, encouraged or directed, then this element will be met. In other words, this element looks at what NOA did. You do not need to consider what effect this had on NO3P.

It is only if you are satisfied, beyond reasonable doubt, that NOA assisted, encouraged or directed the principal offender to commit [insert assisted offence] that this second element will be met.

Intention

The third element that the prosecution must prove is that NOA intentionally assisted, encouraged or directed the commission of [insert assisted offence].

To prove this, the prosecution must first show that at the time s/he provided the assistance, encouragement or direction, NOA knew all the essential circumstances needed to establish the offence of [insert assisted offence], or believed that those essential circumstances existed. This is because a person cannot intentionally assist, encourage or direct an offence unless s/he knows the essential circumstances of that offence.

The “essential circumstances” that are needed to establish [insert assisted offence] are the following [insert number of elements of agreed offence] matters. For the prosecution to prove the first step of this element, NOA must have known or believed that:

[Summarise all of the elements of the foundation 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].

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 assistance, encouragement or direction]. It is not enough 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].

If you are satisfied that NOA knew of these essential circumstances, you must then consider whether s/he intended to assist, encourage or direct the commission of [insert assisted offence].

[If the prosecution argued that the accused assisted or encouraged the offender by his/her presence alone, add the following shaded section.]

You will note that in this case the prosecution did not allege that NOA said or did anything at the time of the offence to assist or encourage the principal offender. They alleged that s/he assisted or encouraged the principal offender simply by being present.

The law recognises that a person can intentionally assist or encourage the commission of an offence by being present at the commission of the offence. However, for this to be the case, you must find that NOA intended his/her presence at the crime scene to have encouraged or assisted the principal offender to commit [insert assisted offence]. It is not sufficient for him/her simply to have been there at the relevant time.

In determining whether NOA intended his/her presence at the commission of the offence to assist or encourage, you should view his/her conduct as a whole. You should look at his/her conduct before and at the time of the alleged offence, and consider whether s/he was linked in purpose with the principal offender in some way, and so contributed to the offence.

If you find that NOA was simply present when the offence was committed, then this element will not be met. However, if you are satisfied that NOA’s presence at the commission of the offence intentionally assisted or encouraged the principal offender to commit the crime, then this element will be met.

[If not already done, identify the matters said to constitute assistance or encouragement.]

Aware of probability

The fourth element the prosecution must prove is that, at the time s/he assisted, encouraged or directed NO3P to commit [insert assisted offence], s/he was aware that it was probable that [insert charged offence] would be committed in the course of carrying out [insert assisted offence].

In other words, the prosecution must prove that NOA realised, at the time s/he assisted, encouraged or directed NO3P to commit [insert assisted offence], that it was probable that NO3P 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 first 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 assisted 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 first element. The first element looks at what happened following NOA’s assistance, encouragement or direction. Has the prosecution proved that a person committed [insert charged offence]? In contrast, this element looks at what NOA realised at the time s/he provided the assistance, encouragement or direction. 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 second element. The second element looks at whether NOA assisted, encouraged or directed others to commit [insert assisted offence]. For this fourth element, you are looking at a different offence. Has the prosecution proved that s/he realised that it was probable that someone would commit [insert charged offence] in the course of carrying out [insert assisted offence]?

[Identify relevant prosecution and defence evidence and arguments]

Withdrawal

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

The fifth element that the prosecution must prove is that the accused did not effectively withdraw his/her assistance, encouragement or direction 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, encouragement or direction, 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, encouragement or direction, with enough 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, encouragement or direction 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 that if the principal offender commits the offence, s/he does so without the accused’s approval or support. In some cases it may even 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, encouragement or direction. 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, encouragement or direction. [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.]

Defences

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

Summary

To summarise, before you can find NOA guilty of committing [insert charged offence] by providing assistance, encouragement or direction, the prosecution must prove to you beyond reasonable doubt:

One – that someone committed [insert charged offence]; and

Two – that the accused assisted, encouraged or directed the principal offender to commit [insert assisted offence]; and

Three – that the accused provided that assistance, encouragement or direction intentionally; and

Four – that the accused intentionally assisted, encouraged or directed the commission of [insert assisted offence] while aware that it was probable that [insert charged offence] would be committed in the course of carrying out [insert assisted offence];

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

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

If you find that any of these elements have not been proven beyond reasonable doubt, then you must find NOA not guilty of [insert charged offence] by providing assistance, encouragement or direction.

Notes

[1] The judge may include the following example if it would assist: “For example, suppose a person, Mr Smith, wants to help another person, Mr Jones, rob a bank. 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. Mr Smith doesn’t want any security guards shot, but he does want to help Mr Jones rob the bank. Mr Smith provides Jones with a car to use in his bank robbery. The bank robbery goes ahead, there is a security guard present and Mr Jones shoots him dead. In that situation, both Mr Smith and Mr Jones will be guilty of murder.”

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

Last updated: 1 November 2014

See Also

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

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

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

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