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5.7.2 - Checklist: Commonwealth complicity – type of offence not in issue

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Four elements the prosecution must prove beyond reasonable doubt:

1. Someone committed the offence charged; and

2. The accused actually assisted or encouraged the principal offender to commit the offence; [1] and

3. The accused intended to assist or encourage the principal offender to commit the offence; and

4. The accused did not effectively terminate his/her involvement before the offence was committed. [2]

Offence committed

Did someone commit the offence charged? [3]

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

If Yes, then go to Question 2.1

If No, then the accused is not guilty of aiding or abetting the offence charged

Actual assistance or encouragement

2.1 Did the accused do something that helped the principal offender to commit the offence?

If Yes, then go to Question 3.1

If No, then go to Question 2.2

2.2. Did the accused do something that encouraged the principal offender to commit the offence?

If Yes, then go to Question 3.1

If No, then go to Question 2.3

2.3. Did the accused do something that conveyed to the principal offender, by words or presence or behaviour, that s/he supported the commission of the offence?

If Yes, then go to Question 3.1

If No, then the accused is not guilty of aiding or abetting the offence charged

Consider – What effect did the accused’s words, presence or behaviour have on the principal offender?

Intention

3.1 At the time the accused assisted or encouraged the principal offender, did s/he know, or believe in, the essential circumstances that make up the offence?

If Yes, then go to Question 4.1

If No, then go to Question 3.2

3.2 At the time the accused assisted or encouraged the principal offender, was s/he aware that their conduct would bring about the commission of the offence in the ordinary course of events?

If Yes, then go to Question 4.1 [4]

If No, then the accused is not guilty of aiding or abetting the offence charged

Termination

4.1 Did the accused terminate his or her involvement in a timely manner, before the offence was committed?

Consider – How long before the offence was committed did the accused withdraw his/her assistance/encouragement?

If Yes, then go to Question 4.2

If No, then the accused is guilty of aiding or abetting the offence charged

(as long as you have also answered Yes to questions 1, 2, and 3)

4.2 Did the accused take all reasonable steps to prevent the offence being committed?

Consider – What steps did the accused take? In the circumstances, were those all the steps s/he could reasonably take?

If Yes, then the accused is not guilty of committing the
offence charged by pursuing a joint enterprise

If No, then the accused is guilty of aiding or abetting the offence charged
(as long as you have also answered Yes to questions 1, 2, and 3)

Notes

[1] If counselling/procuring is being alleged, adjust the language in this checklist accordingly.

[2] This should be deleted if termination is not in issue.

[3] If the jury has received a separate checklist outlining the elements of the offence, it may be desirable to include a cross-reference to that checklist here, noting which elements of the offence must be proven for this element to be met.

[4] If termination is not in issue, the checklist ends here, and this should be adjusted to note that a Yes means that the accused is guilty of the offence charged.

Last updated: 9 March 2018.

See Also

5.7 – Commonwealth Complicity (s 11.2)

5.7.1 - Charge: Commonwealth Complicity – Type of offence not in issue

5.7.3 - Charge: Commonwealth Complicity – Type of offence in issue

5.7.4 - Checklist: Commonwealth complicity – type of offence in issue