(1) A person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly.
Section 11.2 does not create an offence, but extends criminal responsibility for an offence to a person who aids, abets, counsels or procures another person (‘the principal offender’) to commit the offence (Australian Competition and Consumer Commission v Davies  FCA 1017 ).
The provisions of s 11.2 therefore do not specify elements of an offence. Rather, they specify statutory conditions which must be proved before a person can be found guilty of committing the principal offence. These conditions operate in a similar manner to Criminal Code s11.5 (Australian Competition and Consumer Commission v Davies  FCA 1017 ; R v LK (2010) 241 CLR 177  – ). See Conspiracy (Commonwealth) for further information.
To establish liability for an offence through s 11.2, the prosecution must prove beyond reasonable doubt that:
The principal offender committed the offence (s 11.2(2)(b))
The conduct of the accused in fact aided, abetted, counselled or procured the commission of the offence by the principal offender (s 11.2(2)(a))
The accused intended that his or her conduct would aid, abet, counsel or procure the commission:
of any offence (including its fault elements) of the type committed by the principal offender (s 11.2(3)(a)); or
of an offence, while being reckless about the principal offender committing the offence charged (including its fault elements) (s 11.2(3)(b))
Principal Offender Committed Offence
The first matter the prosecution must prove is that the principal offender committed the alleged offence (Criminal Code s11.2(2)(b)).
This requires the prosecution to prove that the principal offender committed the relevant physical elements and had the relevant fault elements for the substantive offence (Criminal Code ss 3.1, 11.2(2)(b); R v Nolan (2012) 83 NSWLR 534 ; Habib v Commonwealth (2010) 183 FCR 62 ).
Under s 11.2(5), it is not necessary for the principal offender to have been prosecuted or found guilty before an accused may be found guilty of aiding, abetting, counselling or procuring the commission of an offence.
The prosecution may have difficulty proving liability through s11.2 where the principal offender could not be convicted of the substantive offence for some reason. This may occur where the principal offender is not criminally responsible for an offence by way of mental impairment (Criminal Code s7.3). In such circumstances, where the prosecution seeks to rely on extended criminal responsibility, it may be more appropriate to rely on s11.2A (joint commission) or 11.3 (commission by proxy) (Matusevich v The Queen (1977) 137 CLR 633; Osland v The Queen (1998) 197 CLR 316; R v Iliovski; R v Shnider  VSCA 172; R v Gill  VSCA 321).
The second matter the prosecution must prove is that the accused’s conduct in fact aided, abetted, counselled or procured the commission of the offence by the principal offender (Criminal Code s11.2(2)(a)).
The words ‘aids, abets, counsels or procures’ are not defined in the Code. They are to be given their established legal meaning (R v Campbell (2008) 73 NSWLR 272 ; Handlen v R (2011) 245 CLR 282 ; R v Jo  QCA 356 ; Franze v R  VSCA 352 ).
Historically, the common law considered those who counsel or procure an offence to be accessories before the fact, while those who aid or abet an offence were considered principals in the second degree (Franze v R  VR 856 ). This distinction has never applied under the Code (Handlen v R (2011) 245 CLR 282 ), and the language of accessories before or after the fact is no longer used at common law. It is now accepted that the words ‘aid, abet, counsel or procure’ may be read collectively to describe a person who assists or encourages someone to commit an offence (Giorgianni v R (1985) 156 CLR 473; R v Wong (2005) 202 FLR 1; Likiardopoulos v R  VSCA 344; Arafan v R (2010) 31 VR 82; R v Russell  VLR 59; but c.f. Attorney-General's Reference (No 1 of 1975)  QB 773).
This assistance or encouragement requires the accused to be linked in purpose with the principal offender, and to act to bring about or render more likely the commission of the offence (Giorgianni v R (1985) 156 CLR 473; R v Russell  VLR 59; R v Wong (2005) 202 FLR 1; R v Phan (2001) 53 NSWLR 480; Handlen v R (2011) 245 CLR 282 ).
On that view, when considering liability under s11.2, a jury is not required to specifically identify the accused as an aider, abettor, counsellor or procurer. They need only decide whether the accused’s conduct demonstrates that s/he was linked in purpose with the principal, and their actions brought about or made more likely the offence (Pong Su (Ruling No 21)  VSC 96 ). Where possible, however, if the alleged conduct could most simply be classified as one or two of the four terms and the parties are agreeable, it is suggested that the judge direct the jury using only the relevant terminology (i.e. referring only to one or a few of either aiding, abetting, counselling or procuring, rather than all four).
In Pong Su (Ruling No 13)  VSC 96, Kellam J considered that the prosecution was not required to prove that a person accused of aiding and/or abetting under s11.2 was actually present at the scene of a crime. Later in the same proceeding, he indicated that if he was incorrect on that point, ‘constructive’ presence would suffice (Pong Su (Ruling No 21)  VSC 96 ; see also R v Nolan (2012) 83 NSWLR 534 )). This approach places more emphasis on the accused’s conduct of providing assistance or encouragement to the principal offender at the time of the offending, acknowledging that the assistance could be provided from a distance.
This approach aligns with developments in the common law, in which actual presence is no longer required (R v Morgan  1 VR 567; R v Wong (2005) 202 FLR 1; see also Arafan v R  VSCA 356). For details about the relevance of presence at common law, see ‘Presence at the Commission of the Crime’ in Aiding, Abetting, Counselling or Procuring.
Section 4.1 of the Code defines conduct to include an act, an omission to perform an act, or a state of affairs.
It is not possible for an accused to be liable for aiding, abetting, counselling or procuring an offence they became involved in at a time when the offence had ended. For example, an accused who becomes involved in a drug importation scheme only after the drugs have been substituted for flour cannot be liable for aiding or abetting the offence, even though they could have been liable had the substitution not taken place. In such a situation, it would be appropriate for the accused to be charged with attempted importation or attempted possession (R v Nolan  NSWCCA 126 , ).
The prosecution does not need to prove that there was any agreement between the accused and the principal offender. The lack of an agreement is what distinguishes liability under s11.2 with the form of complicity established under s11.2A (R v Lam & Ors (Ruling No 20) (2005) 159 A Crim R 448; R v Lowery & King (No 2)  VR 560; R v Nguyen  VSCA 23; Arafan v R  VSCA 356).
Causation and Commonwealth Complicity
Section 11.2(2)(a) requires that the accused’s conduct in fact aided, abetted, counselled or procured the commission of the offence. The meaning and effect of those words ‘in fact’ is a matter of debate.
At common law, the prosecution does not need to prove that the principal offender was actually assisted or encouraged by the accused. Requiring proof that the accused was actually assisted or encouraged would "impose an impossible burden upon the prosecution, who would rarely be in a position to place evidence before a jury as to the effect of the secondary participant’s conduct on the principal offender’s state of mind" (R v Lam (2008) 185 A Crim R 453, 464).
In Criminal Law Officers Committee, Model Criminal Code Chapter 2: General Principles of Criminal Responsibility, Final Report (1992) 87, the committee noted that the requirement of causation was a "vexed question" and did not seek to enter into that debate. This may suggest that the inclusion of the words ‘in fact’ were not intended to change the common law (see also New South Wales Law Reform Commission, Complicity, Report No 129 (2010), 40, 50).
It has been suggested that the use of ‘in fact’ relates to the common law requirement that an accused have demonstrated that they assented to the principal offender’s actions in a way that encourages their performance (Commonwealth Attorney-General’s Department, The Commonwealth Criminal Code: A Guide for Practitioners (March 2002) 251). Whether the principal offender knows of the accused’s assent will depend on the alleged conduct. If the accused is alleged to have procured the principal offender to commit an offence, then the principal would be expected to have known of the accused’s conduct. However, if the accused’s conduct aided the principal by, for example, leaving a weapon out for them to find, then it may not be necessary to show that the principal knew it was the accused who left the weapon.
The approach adopted in this Charge Book is to require proof of a causal connection between the accused’s conduct and the offence. This is adopted as a course of prudence, as it best accords with the words of the Act. In cases where causation is likely to be difficult to show, it will be for the parties to make submissions on why the court should adopt a different approach.
For a person to have committed an offence under s11.2(1), they must have intended that their conduct would aid, abet, counsel or procure the commission of an offence by another person, and either:
An offence of that type was committed by the other person (s11.2(3)(a)); or
The accused was reckless about the commission of the offence actually committed by the other person (s11.2(3)(b)).
The reference to ‘reckless’ in s11.2(3)(b) does not indicate that recklessness is available as an alternative fault element to establish Commonwealth complicity. The relevant fault element is intention. This aligns with common law complicity (Pong Su (Ruling No 12) 159 A Crim R 300 ).
Section 5.2 of the Code defines intention and identifies that a person can have intention with respect to conduct, a circumstance or a result. The drafting of s11.2 suggests that the relevant form of intention is intention with respect to result. That is, the prosecution must show that the accused meant for their conduct to assist in the commission of an offence, or that he or she was aware that the offending would occur in the ordinary course of events (Criminal Code s5.2(3)). This is so regardless of whether the prosecution relies on s11.2(3)(a) or s11.2(3)(b) to establish an accused’s complicity.
To establish that a person intended for their conduct to have assisted the commission of an offence, the prosecution must establish that the accused knew all of the facts that would make the activity he or she was assisting with a criminal offence; i.e. knew the facts that establish the elements of the offence (Ansari v R (2007) 70 NSWLR 89 ).
Establishing intention for s11.2 is likely to involve drawing an inference and will draw on common law principles relating to intention to assist. For details, see under ‘Intention to Assist’ on Aiding, Abetting, Counselling or Procuring.
Section 11.2(3) is subject to s11.2(6), which states that any special liability provisions that apply to an offence also apply for the purposes of aiding, abetting, counselling or procuring an offence. This means that the prosecution will not need to establish intention in respect of any matter that is subject to a special liability provision (R v Franze (Ruling No 1)  VSC 229 ). For further information, see below under ‘Substantive offences and special liability provisions’.
Where an accused is charged with multiple counts of aiding and abetting, there must be evidence to establish the relevant intention with respect to each charge (R v Poulakis (No 2)  ACTSC 190 ).
Type of Offence
Section 11.2(3)(a) explains that one way for a person to be guilty under s11.2(1) is that the accused intended for his or her conduct to aid, abet, counsel or procure the commission of any offence of the type the other person committed.
This limb of s11.2 also applies where the accused intended to assist in the commission of the offence committed (see Australian Competition and Consumer Commission v Davies  FCA 1017 ).
The prosecution must prove that an accused intended their conduct would bring about or make more likely the commission of any offence ‘of the type’ that the other person committed. This suggests it is not necessary for the prosecution to prove the accused intended the specific offence would be committed.
There have not yet been any reported cases examining the meaning or limits of the words ‘of the type’ in the Code. Under English common law, someone could be found liable as an accessory if they intended that ‘a crime of the type in question was intended’; they did not necessarily need to have known all details of the specific crime (R v Bainbridge (1960) 1 QB 129, 134). For example, while it would be necessary to prove that an accused who provided new vehicle registration plates to another person intended to assist the other person to steal a motor vehicle, it would not be necessary to prove that the accused intended to assist in the theft of a specific vehicle (Ancuta v R (1990) 49 A Crim R 307). It is not clear whether this is also the Australian common law position, though Bainbridge has not been disapproved (Giorgianni v R (1985) 156 CLR 473, 481, 505; Ancuta v R (1990) 49 A Crim R 307, 313).
This approach may provide some guidance as to the meaning of ‘type’ in s11.2. It is also supported by the Explanatory Memorandum which accompanied the introduction of s11.2A of the Code.Section 11.2A(2)(a) provides that an offence will be committed in accordance with an agreement ‘if the conduct of one or more parties … makes up the physical elements consisting of conduct of an offence … of the same type as the offence agreed to.’ The Explanatory Memorandum states that ‘of the same type’ was included to ensure the requirement was broad enough to cover situations where the exact offence agreed to was not actually committed. The example provided was a group who agree to commit a specific drug offence, but the quantity or type of drug actually involved differs from the agreement (Explanatory Memorandum, Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009, 134). Although s11.2A was enacted after s11.2, principles of statutory construction include the presumption that words and phrases are to be interpreted consistently within a piece of legislation.
Where the prosecution relies on this basis of complicity, the judge will first need to determine whether the matter of type is a pure question of law, or whether the judge’s role is to determine whether it is open to the jury to find that the two offences are of the same ‘type’. As a matter of prudence, this Charge Book takes the latter approach, and leaves it to the jury to determine whether two offences are of the same ‘type’. Parties will, however, need to provide submissions to both the judge and the jury that identify why the two offences are said to be of the same ‘type’.
Recklessness as to the offence committed
Section 11.2(3)(b) provides another way for a person to be guilty under s11.2(1), where the accused intended that his or her conduct would aid, abet, counsel or procure the commission of any offence and was reckless about the commission of the offence actually committed.
It will always be necessary for the prosecution to prove that the accused intended that his or her conduct would assist in the commission of an offence (Pong Su (Ruling No 12) 159 A Crim R 300).
A person is reckless when they are aware of a substantial risk that a result or circumstance will occur, and it is unjustifiable for them to take that risk given the circumstances known to them (Criminal Code s5.4).
In the context of s11.2(3)(b), when the offence charged is not the one which the accused intended to assist with, the prosecution needs to demonstrate that the accused was aware of a substantial risk that their conduct would lead to the principal committing the offence charged, and it was unjustifiable for the accused to take that risk. This requires that the prosecution prove, in relation to each element of the completed offence, that the accused was aware of a substantial risk that this element would occur and it was unjustifiable to take that risk.
The jury must determine whether it is unjustifiable to take a risk on the facts known to the accused (Criminal Code ss5.4(1)(b), 5.4(2)(b)). However, the accused does not need to have believed that it was unjustifiable to take the risk. The test is objective not subjective.
The question of whether a risk is unjustifiable requires the jury to make a moral or value judgment relating to the accused’s advertent disregard of risk (R v Saengsai-Or (2004) 61 NSWLR 135).
The jury must assess the likelihood of the risk eventuating, and determine whether the risk is one that should not have been taken (Lustig v R (2009) 195 A Crim R 310).
This aspect of s11.2 extends liability compared to the common law of aiding, abetting, counselling or procuring, which required proof of specific intent. It was not sufficient at common law that an accused should have known the essential circumstances which made up an offence that they are alleged to have aided, abetted, counselled or procured (Giorgianni v R (1985) 156 CLR 473). Common law aiding, abetting, counselling or procuring did not include liability for a different offence that the accused was reckless about occurring when they were aiding, abetting, counselling or procuring the commission of another offence.
A person cannot be found guilty under s 11.2 if, before the offence was committed:
they terminated their involvement; and
took all reasonable steps to prevent the offence being committed (Criminal Code s11.2(4)).
The accused bears the evidential burden of providing evidence suggesting a reasonable possibility that they terminated their involvement in the agreement and took all reasonable steps to prevent the commission of the offence (Criminal Code s13.4).
If the accused meets the evidential burden, the prosecution will then have to prove that the accused did not effectively terminate their involvement.
At common law, withdrawal requires the accused to take all action he or she can reasonably take to undo the effect of his or her previous encouragement or assistance, which can include informing the police (see White v Ridley (1978) 140 CLR 342; R v Tietie (1988) 34 A Crim R 438; R v Jensen and Ward  VR 196).
In contrast, the second limb of withdrawal under the Code is to take ‘all reasonable steps to prevent the commission of the offence’ (Criminal Code s11.2(4)(b)).
There do not appear to be any reported cases on the scope and operation of this requirement. The New South Wales Law Reform Commission suggests that the following matters are relevant to the requirement of ‘reasonable steps’:
The significance of the assistance or encouragement previously given;
The seriousness of the offence in question and its likely consequences;
Whether or not the accused can be satisfied, on reasonable grounds, by the principal offender’s response that the offence will not occur;
Any element of risk or duress posed by the principal offender;
The accused’s age and maturity (New South Wales Law Reform Commission, Complicity, Report No 129 (2010) 56).
While these considerations have not been endorsed by a court, they are provided as guidance for trial judges on the operation of s11.2(4).
Substantive offences and special liability provisions
Any special liability provisions that apply to an offence also apply for the purposes of determining whether a person is guilty of committing the offence by s 11.2 of the Code (Criminal Code s 11.2(6)).
The same principle applies for the purpose of attempt, incitement and conspiracy (Criminal Code ss 11.1(6A), 11.4(4A), 11.5(7A))
‘Special liability provision’ is defined as:
A provision that provides that, in a prosecution for an offence, it is not necessary to prove that the defendant knew a particular thing; or
A provision that provides that, in a prosecution for an offence, it is not necessary to prove that the defendant knew or believed a particular thing (Criminal Code Dictionary).
Fault elements such as knowledge, recklessness and negligence are not ‘special liability provisions’.
In addition, strict liability, as defined in Criminal Code s6.1, does not fit within the definition of special liability provision. Therefore, where strict liability applies, the common law rule that an accused must know the essential facts for a joint offence will continue to apply, and the prosecution must prove awareness of those facts (R v Ansari (2007) 70 NSWLR 89 at ).
An example of how a special liability provision operates can be seen in the offence of importing a commercial quantity of a border controlled drug. Section 307.5(2) of the Code establishes absolute liability for possessing commercial quantities of an unlawfully imported border controlled drug or plant. When a person is charged with joint commission an offence against s307.5(1), s11.2A(6) means that there will be no need for the prosecution to prove the accused agreed or intended that the importation involve a specific quantity of drug (Franze v R  VSCA 352  – ).
Complicity and Attempt
It is not an offence to attempt to commit an offence against s 11.2 (Criminal Code s 11.1(7)). However, liability under s11.2 extends to attempted offences. For example, where a person aids, abets, counsel or procures the principal offender to import a border controlled drug, but the importation is interrupted before the offence can be completed, s11.2 will extend liability for the attempted importation to the person who provided assistance (Franze v R  VSCA 352 ).
Uncertainty about role of accused: Principal offender or accessory
Section 11.2(7) states that if the jury is satisfied beyond reasonable doubt that an accused is guilty of a particular offence whether because they were complicit in its commission or are otherwise guilty, but the jury cannot determine which, they may nevertheless find the accused guilty of that offence.
This picks up the common law principle that, where the prosecution is not able to prove which of several co-accused performed the relevant criminal acts, the jury may convict all of the co-accused of the offence if satisfied, by evidence admissible against each co-accused, that one (or more) of them committed the offence and the others were accessories. The jury does not need to decide which of them was the principal offender and which were accessories (R v Lowery & King (No 2)  VR 560).