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5.8 – Commonwealth Joint Commission (s 11.2A)

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General Principles

  1. Criminal Code s 11.2A(1) provides that:

    (1) If:

    (a) a person and at least one other party enter into an agreement to commit an offence; and

    (b) either:

    (i) an offence is committed in accordance with the agreement …; or

    (ii) an offence is committed in the course of carrying out the agreement …;

    the person is taken to have committed the joint offence … and is punishable accordingly.

  2. Section 11.2A does not create an offence, but extends criminal responsibility to all those who enter into an agreement to commit an offence (Franze v R [2014] VSCA 352 [97]). It codifies the law of joint criminal enterprise (s11.2A(1)(b)(i)) and extended common purpose (s11.2A(1)(b)(ii)) (see R v Franze (Ruling No 2) (2013) 37 VR 101 [20]; Masri v R [2015] NSWCCA 243 [1]).
  3. Section 11.2A applies to offences committed after 20 February 2010. It was introduced with the Crimes Legislation Amendment (Serious and Organised Crime) Act 2010 (Cth) after it was recognised that, prior to the amendment, the Code lacked any provision extending criminal liability in circumstances involving an agreement to commit an offence (Handlen v R; Paddison v R (2011) 245 CLR 282 [1]).

    Liability

  4. Section 11.2A of the Code provides two forms of liability for joint commission. The first form of liability is an analogue to joint criminal enterprise. The prosecution must prove, beyond reasonable doubt, that:
    1. The accused entered into an agreement with at least one other person to commit an offence (the joint offence)
    2. The joint offence was committed in accordance with the agreement
    3. The accused personally did something to further the agreement
    4. The accused and at least one other party to the agreement intended that the joint offence would be committed under the agreement (s11.2A(1), (2), (4); R v Semaan & Ors (Ruling 7) [2016] VSC 170; R v Franze (Ruling No 1 ) (2013) 37 VR 101 [20], [25]).
  5. This form of liability is referred to in this topic as joint commission of an offence in accordance with an agreement.
  6. The second form of liability is a statutory analogue to extended common purpose and covers the situation where there is divergence between the agreement and the committed offence. Proof of this form of liability requires the prosecution to show, beyond reasonable doubt, that:
    1. The accused entered into an agreement with at least one other person to commit an offence (the foundational offence)
    2. The accused personally did something to further the agreement
    3. The accused was reckless about the commission of a different offence (the charged offence) that another party in fact committed in the course of carrying out the agreement
    4. The accused and at least one other party to the agreement intended that an offence would be committed under the agreement (s11.2A(1), (3), (4); R v Semaan & Ors (Ruling 7) [2016] VSC 170; R v Franze (Ruling No 1 ) (2013) 37 VR 101 [20], [25]).
  7. This form of liability is referred to in this topic as joint commission of an offence in the course of carrying out an agreement.
  8. An accused may be found guilty of jointly committing an offence even if they were not present while any of the conduct constituting the offence charged was engaged in (Criminal Code s11.2A(7)(b)).

    Joint Commission of an offence in accordance with an agreement

    Agreement to Commit an Offence

  9. The first matter the prosecution must prove is that the accused and at least one other party entered into an agreement to commit an offence (Criminal Code s11.2A(1)(a)).
  10. The agreement must be entered into before or at the same time as the acts or omissions constituting the charged offence (Criminal Code s11.2A(5)(b)).
  11. Other than specifying that the agreement may be a non-verbal understanding (Criminal Code s11.2A(5)(a)), the Code does not define ‘agreement’. The scope of the term is likely to be informed by common law principles in relation to joint criminal enterprise. For details, see ‘Agreement to Pursue a Joint Enterprise to Commit a Crime’ in Joint Criminal Enterprise.
  12. This is consistent with the common law position (see McAuliffe v The Queen (1995) 183 CLR 108).
  13. The agreed criminal conduct must be capable of definition with some degree of certainty (R v Franze (Ruling No 1) (2013) 37 VR 101; Weng v R [2013] VSCA 221 [71]).

    Parties with a mental impairment

  14. At common law, it was possible for a person who could not understand that his or her actions were wrong to still be part of an agreement to commit an offence. That person’s actions could be attributed to other parties to the agreement, even though the person with the impairment may not be criminally liable for the offence because he or she was suffering from a mental impairment (Matusevich v The Queen (1977) 137 CLR 633; Osland v The Queen (1998) 197 CLR 316).
  15. In Matusevich, Aicken J (Stephen, Mason, Murphy JJ agreeing) noted that careful directions would be required in such a situation. The jury would need to consider whether the party alleging a mental impairment understood the nature and quality of what he or she did to contribute to the agreement. If he or she did not have that understanding, there could be no joint commission, because there could be no agreement. However, if he or she could understand the nature of their activity but could not understand that it was wrong, he or she could nevertheless form an agreement.
  16. In some cases, it may be more appropriate for the prosecution to place a charge under s11.3 of the Code, commission by proxy.

    Offence Committed in Accordance with Agreement

  17. The second matter the prosecution must prove is that the offence was committed in accordance with the agreement (Criminal Code s11.2A(1)(b)(i)).
  18. Section 11.2A(2) explains that an offence is committed in accordance with the agreement if:
    1. the conduct of one or more of the parties in accordance with the agreement makes up the physical elements of an offence (the joint offence) of the same type as the offence agreed to; and
    2. to the extent that a physical element of the joint offence consists of a result of conduct, that result arises from the conduct engaged in; and
    3. to the extent that a physical element of the joint offence consists of a circumstance, the conduct engaged in, or a result of the conduct engaged in, occurs in that circumstance.
  19. In the context of s11.2A(2), conduct can either be an act or an omission to perform an act (Criminal Code s4.1).
  20. The prosecution will need to prove all physical elements of the offence charged. It will not be sufficient for the prosecution to demonstrate that only some of the physical elements have been completed. If some of the physical elements are incomplete, the prosecution should rely on attempting to commit the relevant offence.
  21. The prosecution must also prove that the offence was committed in accordance with the agreement. It must have come within the scope of the parties’ agreement (R v Jensen and Ward [1980] VR 196; R v PDJ (2002) 7 VR 612; R v Anderson [1966] 2 QB 110; R v Heaney & Ors [1992] 2 VR 531). Determining whether the offence was within the scope of the agreement will likely rely on common law principles. For further information, see ‘Acts Must have been Within the Scope of the Agreement’ in Joint Criminal Enterprise (Pre-1/11/14).

    Type of Offence

  22. An offence is committed in accordance with the agreement if the offence committed is of the ‘same type’ as that which was agreed to (Criminal Code s11.2A(2)(a)).
  23. There have not yet been any reported cases examining the meaning of ‘same type’ in s11.2A. For guidance on what it may include, see Commonwealth Complicity (s11.2).

    Accused’s Participation

  24. At common law, offending as part of a group required proof of an additional element that the accused participated in the joint enterprise in some way. The prosecution was required to prove that the accused took a step or steps toward committing the agreed offence (R v Clarke & Johnstone [1986] VR 643; R v Lao & Nguyen (2002) 5 VR 129; Likiardopoulos v R [2010] VSCA 344; Arafan v R [2010] VSCA 356).
  25. This requirement is not explicitly stated in the Code and courts have not yet been called on to decide whether participation is required. Where it has been discussed, it was considered unnecessary to decide as the prosecution was in any case relying on the accused’s acts under the agreement to establish the existence of an agreement (see, e.g., R v Franze (Ruling No 1) (2013) 37 VR 101 [20]).
  26. In relation to differently worded Victorian statutory complicity provisions, Beale J in R v Semaan & Ors (Ruling 7) [2016] VSC 170 [7] observed that ‘if Parliament had intended to abolish the element of participation one might have expected them to say so clearly.’
  27. In the absence of appellate guidance on this point, and taking a prudential approach, this Charge Book includes the accused’s participation as an element of establishing liability under s11.2A(1)(b)(i). In cases where participation 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.
  28. The prosecution is expected to provide particulars of the agreement, including what it contends the accused has done to further the agreement, early in the trial if it is not clear from the indictment or summary of the prosecution opening.

    Intention

  29. For a person to have committed an offence by joint commission in accordance with an agreement, s11.2A(4) provides that the accused and at least one other party to the agreement must have intended that an offence would be committed under the agreement.
  30. 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 s11.2A(4) suggests that the relevant form of intention is intention with respect to result. That is, the prosecution must show that the accused meant to bring about the commission of an offence when they entered into the agreement, or were aware that this would occur in the ordinary course of events (Criminal Code s5.2(3)).
  31. Section 11.2A(4) speaks of intention to commit an offence, and is not expressly limited to the offence charged or agreed on. The broad language used is likely due to the fact that the same sub-section applies to intention for offences committed both in accordance with and in the course of carrying out the agreement.
  32. At common law, the accused was required to have the state of mind relevant to the agreed offence (R v Clarke & Johnstone [1986] VR 643; Johns v R (1980) 143 CLR 108; McAuliffe v R (1995) 183 CLR 108; R v Taufahema [2007] HCA 11; Likiardopoulos v R [2010] VSCA 344; Arafan v R [2010] VSCA 356). By including a separate element of intention in s11.2A, it appears that this aspect of the common law does not apply.
  33. The most likely interpretation in the context of offences committed in accordance with the agreement is that the accused (and another party to the agreement) must have intended to commit an offence of the same type as the joint offence. This accords with the language of s11.2A(2)(a).
  34. Section 11.2A(4) is subject to s11.2A(8), which states that any special liability provisions that apply to an offence also apply for the purposes of joint commission. This means that the prosecution will not need to establish intention in relation to any physical elements of the offence that are subject to a special liability provision (R v Franze (Ruling No 1) [2013] VSC 229 [17]). For further information, see ‘Substantive offences and special liability provisions’ below.

    Joint Commission of an offence in the course of carrying out an agreement

  35. Section 11.2A(3) provides for the situation where, in the course of carrying out an agreement to commit one offence, a different offence is committed. In this situation, the accused is guilty of the charged offence if:
    1. He or she entered into an agreement with at least one other person to commit an offence (the foundational offence)
    2. He or she personally did something to further the agreement
    3. He or she was reckless about the commission of a different offence (the charged offence) that another party in fact committed in the course of carrying out the agreement
    4. He or she and at least one other party to the agreement intended that an offence would be committed under the agreement (s11.2A(1), (3), (4)).
  36. There is no authority that directly addresses the question of whether an accused’s actual participation in what has been agreed is required for joint commission of an offence in carrying out an agreement. This Charge Book adopts the view that actual participation is not required. See, however, R v Semaan & Ors (Ruling 7) [2016] VSC 170. This decision can be distinguished on the basis that it considered the Victorian statutory complicity scheme, as provided for in ss323 and 324 of the Crimes Act 1958.

    Agreement to Commit an Offence

  37. As with joint commission in accordance with an agreement, the first matter the prosecution must prove is that the accused and at least one other party entered into an agreement to commit an offence (the foundational offence) (Criminal Code s11.2A(1)(a)).
  38. The same principles as those discussed above in relation to joint commission in accordance with an agreement apply here.

    Offence Committed in the Course of Carrying out Agreement

  39. The second matter the prosecution must prove is that the accused was reckless about the commission of a different offence (the charged offence) that another party in fact committed in the course of carrying out the agreement (Criminal Code s11.2A(1)(b)(i)).
  40. There are two aspects of this. First, the prosecution must prove that the charged offence was committed; and second, they must prove that the accused was reckless about the commission of the charged offence.

    Offence committed

  41. At common law, proving an offence was committed via extended common purpose required the prosecution to demonstrate that one or more parties to the agreement performed the acts necessary to commit the offence charged, and had the necessary mental state. Nothing in the text of s11.2A suggests that Commonwealth joint commission intends to depart from that position.
  42. This Charge Book adopts the view that, consistently with common law, to establish that an offence was committed in accordance with an agreement under s11.2A(3) the prosecution must demonstrate that all of the physical elements of the offence charged were committed, and that the principal offender(s) had the necessary fault elements for that offence.
  43. It is not necessary for the principal offender(s) to have been prosecuted or found guilty before an accused may be found guilty of the joint offence (Criminal Code s11.2A(7)(a)).

    Recklessness as to the offence committed

  44. The prosecution must also prove that the accused was reckless about the commission of the charged offence; the offence that was actually committed.
  45. 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).
  46. At common law, the accused must have foreseen the possibility of the offence charged occurring (Miller v R [2016] HCA 30 [4]). This differs from the recklessness provision in s11.2A(3), which requires awareness of a substantial risk. In this respect the Code departs from the common law.
  47. In the context of s11.2A(3), the prosecution needs to demonstrate that the accused was aware of a substantial risk that the principal offender would commit the offence charged while carrying out the agreement, and it was unjustifiable for the accused to take that risk.
  48. The jury must determine whether it is unjustifiable to take a risk on the facts known to the accused (s5.4(1)(b)). However, the accused does not need to have believed that it was unjustifiable to take the risk. The test is objective not subjective.
  49. 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).
  50. 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).

    Intention

  51. For a person to have committed an offence by joint commission in the course of an agreement, s11.2A(4) provides that the accused and at least one other party to the agreement must have intended that an offence would be committed under the agreement.
  52. 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 s11.2A(4) suggests that the relevant form of intention is intention with respect to result. That is, the prosecution must show that the accused meant to bring about the commission of an offence when they entered into the agreement, or be aware that this would occur in the ordinary course of events (Criminal Code s5.2(3)).
  53. Section 11.2A(4) speaks of intention to commit an offence, and is not expressly limited to the offence charged or agreed on. This could mean that the intention relates to either the foundational or charged offence. The broad language used is likely due to the fact that the same sub-section applies to intention for offences committed both in accordance with and in the course of carrying out the agreement.
  54. In the absence of case authority, this Charge Book adopts the view that, to establish intention in relation to joint commission of an offence committed in the course of an agreement, the accused (and another party to the agreement) must have intended to commit an offence of the same type as the foundational offence, which accords with the language of s11.2A(2)(a). This is because recklessness is the relevant form of fault with respect to the charged offence.
  55. Section 11.2A(4) is subject to s11.2A(8), which states that any special liability provisions that apply to an offence also apply for the purposes of joint commission. This means that the prosecution will not need to establish intention in relation to any physical elements of the foundational offence that are subject to a special liability provision (see R v Franze (Ruling No 1) [2013] VSC 229 [17]). For further information, see below under ‘Substantive offences and special liability provisions’.

    Withdrawal

  56. A person cannot be found guilty under s11.2A if, before any conduct constituting part of the charged offence was committed:
  57. The accused bears the evidential burden of pointing to evidence that suggests a reasonable possibility that they terminated their involvement in the agreement and took all reasonable steps to prevent the conduct constituting an offence to be engaged in (s13.4).
  58. If the accused meets the evidential burden, the prosecution will then have to prove that the accused did not effectively terminate their involvement.
  59. At common law, withdrawal requires the accused to take all action the accused can reasonably take to undo the effect of his or her previous encouragement or assistance, and this 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 [1980] VR 196).
  60. In contrast, withdrawal under the Code must occur before any aspect of the offending has taken place, and the second limb is to take ‘all reasonable steps to prevent the conduct from being engaged in’ (s11.2A(6)(b)).
  61. There do not appear to be any reported cases on the scope and operation of this requirement. The Explanatory Memorandum suggests that what will constitute ‘reasonable steps’ will differ depending on the case, but could include:
  62. While these considerations have not been endorsed by a court, they are provided as guidance for trial judges on the operation of s11.2A(6).
  63. Establishing whether the accused has effectively terminated their involvement may draw on common law principles about withdrawing from a joint criminal enterprise. For details, see ‘Withdrawing From an Agreement’ in Joint Criminal Enterprise (Pre-1/11/14).

    Substantive offences and special liability provisions

  64. Any special liability provisions that apply to the offence charged also apply for the purposes of determining whether a person is guilty of committing the offence through s11.2A (s11.2A(8)).
  65. The same principle applies for the purpose of attempt, incitement and conspiracy (Criminal Code ss11.1(6A), 11.4(4A), 11.5(7A)).
  66. ‘Special liability provision’ is defined as:
    1. A provision that provides that absolute liability applies to one or more (but not all) of the physical elements of an offence; or
    2. 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
    3. 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).
  67. Fault elements such as knowledge, recklessness and negligence are not ‘special liability provisions’.
  68. 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 [84]).
  69. 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 [2014] VSCA 352 [150] – [153]).

    Complicity and Attempt

  70. It is not an offence to attempt to commit an offence against s 11.2A (Criminal Code s11.1(7)). However, liability under s 11.2A extends to attempted offences. For example, where a person enters into an agreement with another person to import a border controlled drug but the importation is interrupted, s11.2A enables the person to be charged with attempted importation (Franze v R [2014] VSCA 352 [3]).

Last updated: 9 March 2018

In This Section

5.8.1 - Charge: Commonwealth Joint Commission – Accordance with Agreement

5.8.2 - Checklist: Commonwealth joint commission – accordance with agreement

5.8.3 - Charge: Commonwealth Joint Commission – Course of Agreement

5.8.4 - Checklist: Commonwealth joint commission – course of agreement

See Also

Victorian Criminal Charge Book

Part 1: Preliminary Direction

1.1 – Introductory Remarks

1.2 – Jury Empanelment

1.3 – Selecting a Foreperson

1.4 – The Role of Judge and Jury

1.5 – Decide Solely on the Evidence

1.6 – Assessing Witnesses

1.7 – Onus and Standard of Proof

1.8 - Separate Consideration

1.9 - Alternative verdicts

1.10 – Trial Procedure

1.11 - Consolidated preliminary directions

Part 2: Directions in Running

2.1 - Views

2.2 - Providing Documents to the Jury

2.3 – Other Procedures for Taking Evidence

2.4 – Unavailable witnesses

2.5 – Witness invoking Evidence Act 2008 s128

Part 3: Final Directions

3.1 - Directions Under Jury Directions Act 2015

3.2 - Overview of Final Directions

3.3 - Review of the Role of the Judge and Jury

3.4 - Review of the Requirement to Decide Solely on the Evidence

3.5 - Review of the Assessment of Witnesses

3.6 - Circumstantial Evidence and Inferences

3.7 - Review of the Onus and Standard of Proof

3.8 - Review of Separate Consideration

3.9 - Judge’s Summing Up on Issues and Evidence

3.10 - Alternative Verdicts

3.11 - Unanimous Verdicts and Extended Jury Unanimity

3.12 - Taking Verdicts

3.13 - Perseverance and Majority Verdict Directions

3.14 - Intermediaries and ground rules explained

3.15 - Concluding Remarks

3.16 - Consolidated final directions

Part 4: Evidentiary Directions

4.1 - The Accused as a Witness

4.2 - Child Witnesses

4.3 - Character Evidence

4.4 - Prosecution Witness's Motive to Lie

4.5 - Confessions and Admissions

4.6 - Incriminating Conduct (Post Offence Lies and Conduct)

4.7 - Corroboration (General Principles)

4.8 - Delayed Complaint

4.9 - Distress

4.10 - Prosecution Failure to Call or Question Witnesses

4.11 - Defence Failure to Call Witnesses

4.12 - Failure to Challenge Evidence (Browne v Dunn)

4.13 - Identification Evidence

4.14 - Opinion Evidence

4.15 - Previous Representations (Hearsay, Recent Complaint and Prior Statements)

4.16 - Silence in Response to People in Authority

4.17 - Silence in Response to Equal Parties

4.18 - Tendency Evidence

4.19 - Coincidence Evidence

4.20 - Other forms of other misconduct evidence

4.21 - Unfavourable Witnesses

4.22 - Unreliable Evidence Warning

4.23 - Criminally Concerned Witness Warnings

4.24 - Prison Informer Warnings

4.25 - Word Against Word Cases

4.26 - Differences in a Complainant’s Account

4.27 - Alibi

Part 5: Complicity

5.1 - Overview

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

5.3 - Joint Criminal Enterprise (Pre-1/11/14)

5.4 - Extended Common Purpose (Pre-1/11/14)

5.5 - Aiding, Abetting, Counselling or Procuring (Pre-1/11/14)

5.6 - Assist Offender

5.7 – Commonwealth Complicity (s 11.2)

5.9 - Innocent Agent (Victorian Offences)

5.10 - Commission by Proxy (Commonwealth offences)

Part 6: Conspiracy, Incitement and Attempts

6.1 - Conspiracy to Commit an Offence (Victoria)

6.2 - Conspiracy (Commonwealth)

6.3 - Incitement (Victoria)

6.4 - Attempt (Victoria)

Part 7: Victorian Offences

7.1 - General Directions

7.2 - Homicide

7.3 - Sexual Offences

7.4 - Other Offences Against the Person

7.5 - Dishonesty and Property Offences

7.6 - Drug Offences

7.7 – Occupational Health and Safety

7.8 - Offences against justice

Part 8: Victorian Defences

8.1 - Statutory Self-Defence (From 1/11/14)

8.2 - Statutory Self-Defence (Pre - 1/11/14) and Defensive Homicide

8.3 - Common Law Self-Defence

8.4 - Mental Impairment

8.5 - Statutory Intoxication (From 1/11/14)

8.6 - Statutory Intoxication (23/11/05 - 31/10/14)

8.7 - Common Law Intoxication

8.8 - Automatism

8.9 - Statutory Duress (From 1/11/14)

8.10 - Statutory Duress (23/11/05 - 31/10/14)

8.11 - Common Law Duress

8.12 - Provocation

8.13 - Suicide Pact

8.14 - Powers of arrest

8.15 - Police search and seizure powers without a warrant

Part 9: Commonwealth Offences

9.1 - Commonwealth Drug Offences

9.2 - People Smuggling (Basic Offence)

9.3 - People Smuggling (5 or More People)

9.4 - Use of carriage service for child pornography material

Part 10: Unfitness to Stand Trial

10.1 – Investigations into Unfitness to Stand Trial

10.2 – Special Hearings