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

Click here to obtain a Word version of this document for adaptation.

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. When the accused assisted or encouraged the principal offender to commit the offence, s/he had the necessary state of mind; 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

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?

State of mind

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 [intended offence]? [4]

If Yes, then go to Question 3.2

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

3.2 Did the accused intend to assist or encourage the principal offender to commit an offence of the same type as the offence that s/he has been charged with aiding or abetting?

If Yes, then go to Question 4 [5]

If No, then go to Question 3.3

3.3 Was the accused aware that there was a substantial risk that the principal offender would commit the offence charged?

If Yes, then go to Question 3.4

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

3.4 Was it unjustifiable for the accused to take that risk, in the circumstance known to him/her?

If Yes, then go to Question 4 [6]

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 there is an issue about whether the intended offence and the charged offence are ‘of the same type’, it may be desirable to provide a document showing the elements of the intended offence, so that the jury can clearly see what it is that that the accused allegedly intended.

[5] 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.

[6] 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

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

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