5.2.1 - Bench Notes: Statutory Complicity1
Operation of these Notes
1.
These Bench Notes apply to offences alleged to have been committed
on or after 1 November 2014. For offences alleged to have been
committed before that date, see:

Bench Notes: Joint Criminal Enterprise

Bench Notes: Extended Common Purpose; or

Bench Notes: Aiding, Abetting, Counselling and Procuring.
“Involved in the Commission of an Offence”
2.
Sections 323 to 324C of the Crimes Act 1958 provide a statutory
codification of the principles of complicity. It replaces and abolishes
common law doctrines such as acting in concert, joint criminal
enterprise, common purpose, extended common purpose and aiding,
abetting, counselling and procuring (Crimes Act 1958 s324C).
3.
Instead, a person who is “involved in the commission of an offence is
taken to have committed the offence and is liable to the maximum
penalty for that offence” (Crimes Act 1958 s324(1)).
4.
A person is “involved in the commission of an offence” if he or she:
5.
1
(a)
intentionally assists, encourages or directs the commission
of the offence; or
(b)
intentionally assists, encourages or directs the commission
of another offence where the person was aware that it was
probable that the offence charged would be committed in
the course of carrying out the other offence; or
(c)
enters into an agreement, arrangement or understanding
with another person to commit the offence; or
(d)
enters into an agreement, arrangement or understanding
with another person to commit another offence where the
person was aware that it was probable that the offence
charged would be committed in the course of carrying out
the other offence (Crimes Act 1958 s323(1)).
Subsection (a) replaces the common law doctrine of aiding, abetting,
counselling and procuring, while subsection (c) replaces the common
law doctrine of joint criminal enterprise. Subsections (b) and (d)
This document was last updated on 2 March 2015.
replace the principles of extended common purpose with a new form
of liability based on recklessness for secondary offences, which
extend liability under subsections (a) and (c) respectively.
Derivative liability
6.
Liability under Crimes Act 1958 s324 is derivative. Secondary liability
on the basis of complicity only attaches if an offence “is committed”.
This requires proof in the trial of a secondary party, that the offence
was committed. However, it is not necessary that the principal
offender (or any other offenders) be prosecuted or found guilty of
that offence (Crimes Act 1958 s324A).
7.
This requires the prosecution to prove that a principal offender
committed the relevant criminal acts with the necessary criminal
intention (R v Jensen and Ward [1980] VR 194).
8.
As discussed under Mentally Impaired Parties below, it is likely that
the defence of mental impairment operates to excuse the principal
offender’s liability but does not affect whether the offence “is
committed”.
9.
In contrast, defences such as self-defence or duress are inconsistent
with a conclusion that the offence “is committed”. Where the jury
finds, in the trial of the secondary party, that the principal offender
acted under duress or in self-defence, then the jury must find the
secondary party not guilty of committing the offence. This does not
prevent other bases of liability, such as conspiracy or incitement to
commit the offence, where those inchoate offences are appropriate.
10. If the accused (that is, the secondary party) and the principal
offender are tried together, and the evidence against them is the
same, the accused generally cannot be found guilty unless the
principal offender is also found guilty (Osland v R (1998) 197 CLR
316).
11. However, different verdicts between a principal offender and a
secondary party will not always be inconsistent. For example, there
may be sufficient evidence to prove that the secondary party assisted
someone to commit the principal offence, but insufficient evidence to
establish the identity of the principal offender (Osland v R (1998)
197 CLR 316; R v King (1986) 161 CLR 423).
12. Evidence that another person has been convicted is not admissible
against the accused (R v Kirkby [2000] 2 Qd R 57; Evidence Act
2008 s91).
13. In some cases, the jury may be satisfied that the accused either
committed the offence himself or herself or is liable as a secondary
party, but cannot determine which. In that situation, the jury is
entitled to convict the accused (Crimes Act 1958 s324B).
14. This principle extends to the scenario where there are several
accused tried together and the jury cannot determine which was the
principal offender and which are “involved in the commission of the
offence”, i.e. secondarily liable (see R v Lowery & King (No 2) [1972]
VR 560; R v Phan (2001) 53 NSWLR 480; R v Clough (1992) 28
NSWLR 396; R v Mohan [1967] 2 AC 187).
Intentionally assisting, encouraging or directing
15. Under subsection (a) of the definition of “involved in the commission
of an offence”, the prosecution must prove that the accused either:

Intentionally assisted;

Intentionally encouraged; or

Intentionally directed
the commission of the offence.
Assistance, encouragement and direction
16. While there is not yet any authority on the point, it is likely that the
words “assists, encourages or directs” will be treated as ordinary
English words and that the meaning and operation of the terms will
be a question of fact for the jury.
17. The words “assists” and “encourages” reflect the common law
complicity liability of “aiding, abetting, counselling or procuring” an
offence, which was defined as intentionally assisting or encouraging
the principal offender to commit that offence (Giorgianni v R (1985)
156 CLR 473).
18. At common law, it was not necessary (or sufficient) to show that the
accused exerted control over the principal offender. In cases of
assisting or encouraging, the principal offender would have acted
voluntarily, breaking the causal link between the accused’s alleged
control of the principal offender and the commission of the offence (R
v Franklin (2001) 3 VR 9). It is likely that this is equally true for
complicity under the Crimes Act 1958.
19. The accused also does not need to have reached an agreement with
the principal offender about the commission of the crime, which is a
separate pathway to complicity liability covered by Crimes Act 1958
ss 323(1)(c) and (d). This was also true of aiding, abetting,
counselling or procuring at common law, where the accused merely
needed to have provided encouragement or assistance to the
principal offender (R v Oberbilig [1989] 1 Qd R 342; R v Nguyen
[2010] VSCA 23).
20. Subsection (a) of the definition of involvement removes the
distinctions which existed at common law between liability as an
accessory before the fact and as a principal in the second degree.
The jury will instead look at all of the accused’s conduct, leading up
to and at the time of the alleged offence to determine whether the
accused intentionally assisted, encouraged or directed the
commission of the offence.
21. The definition also omits the third form of aiding and abetting at
common law, which consisted of intentionally conveying assent to
and concurrence in the commission of the crime. As explained by
Ormiston JA in R v Makin (2004) 8 VR 262, this was likely a form of
encouragement, and so it did not need to be separately described
(see also R v Phan (2001) 53 NSWLR 480; R v Al Qassim [2009]
VSCA 192).
22. Where it is alleged that the accused “assisted” the principal offender,
it is not necessary to prove that the principal offender was aware of
the accused’s assistance (R v Lam & Ors (Ruling No 20) (2005) 159
A Crim R 448).
23. Similarly, where it is alleged that the accused “encouraged” the
principal offender, it is not necessary to prove that the primary
offence was in fact encouraged (Crimes Act 1958 s323(2)). See
Effect of encouragement need not be determined below.
Presence at the commission of the crime
24. The Crimes Act 1958 abolishes any common law requirement that a
secondary party must be physically present at the time of the
commission of the offence (Crimes Act 1958 s323(3)(a)). Physical
presence is merely relevant as evidence to support a finding of
assistance, encouragement or direction.
25. Mere presence at a crime is not sufficient by itself to found liability (R
v Al Qassim [2009] VSCA 192; R v Makin (2004) 8 VR 262; R v Lam
(2008) 185 A Crim R 453; R v Nguyen [2010] VSCA 23; Al-Assadi v
R [2011] VSCA 111).
26. This is because, to be liable, a person must have assisted,
encouraged or directed the principal offender in some way. A person
who is simply present at the commission of a crime will usually not
have offered such assistance or encouragement (see R v Makin
(2004) 8 VR 262).
27. In some cases, however, the accused may assist or encourage the
commission of a crime by being present. For example, by choosing to
be present at the crime scene, the accused may provide moral
support to the principal offender, or demonstrate a willingness to
assist if required. Similarly, if the criminal offending was designed to
be a public spectacle (such as an illegal prize fight), and drew
support from the presence of observers, the accused’s presence may
be seen as having provided encouragement to the principal offender
(R v Lowery & King (No 2) [1972] VR 560; R v Conci [2005] VSCA
173; R v Panozzo [2007] VSCA 245; R v Coney (1882) 8 QBD 534).
28. For the accused’s presence to constitute assistance or
encouragement, he or she must have done something more than
simply be at the scene of the crime. The accused must, at some
point, have said or done something which showed that he or she was
linked in purpose with the principal offender, and thus contributed to
the crime (R v Al Qassim [2009] VSCA 193; R v Nguyen [2010]
VSCA 23).
29. The accused must have done something of a kind that can
reasonably be seen as intentionally adopting and contributing to
what was taking place in his or her presence (Al-Assadi v R [2011]
VSCA 111).
30. Where it is alleged that the accused assisted or encouraged by being
present at the scene of the crime, the judge should therefore tell the
jury that mere presence is not sufficient. The judge should make
clear that something more is required (R v Al Qassim [2009] VSCA
193; Al-Assadi v R [2011] VSCA 111).
31. The judge should clearly identify the additional matters beyond mere
presence said to constitute assistance or encouragement (R v Al
Qassim [2009] VSCA 193).
32. In determining whether the accused’s presence assisted or
encouraged the commission of the offence, the accused’s conduct
relating to the offence should be viewed as a whole. Things that the
accused said or did prior to the commission of the offence may
warrant the conclusion that the accused’s presence made him or her
complicit in the offence, by helping or encouraging the principal
offender to commit the crime (R v Al Qassim [2009] VSCA 192).
Effect of encouragement need not be determined
33. Crimes Act 1958 s323(2) provides that:
In determining whether a person has encouraged the
commission of an offence, it is irrelevant whether or not the
person who committed the offence in fact was encouraged to
commit the offence.
34. This preserves the position which existed at common law that it was
not necessary to prove that the principal offender was aware of the
accused’s encouragement, nor was it necessary to prove that the
principal offender was actually encouraged by the accused’s words or
actions (see R v Lam & Ors (Ruling No 20) (2005) 159 A Crim R
448).
35. However, it is likely that in “encouragement” cases the prosecution
must still prove that the encouragement was communicated to the
principal offender in circumstances such that s/he could have been
aware of that encouragement (See R v Lam & Ors (Ruling No 20)
(2005) 159 A Crim R 448).
Failure to Act
36. Ordinarily, the fact that the accused failed to act in a particular way
will not be sufficient to prove that s/he assisted or encouraged the
principal offender to commit the crime (R v Russell [1933] VLR 59).
37. However, where the accused is under a legal or ethical duty to act, a
failure to do so may be evidence of encouragement or assent to the
offending (see, e.g., R v Russell [1933] VLR 59; Ex parte Parker: Re
Brotherson (1957) SR(NSW) 326).
38. The Crimes Act 1958 recognises, in section 323(3), that a person
may be involved in the commission of an offence by “act or
omission”.
39. A duty to act may arise where the accused is in loco parentis to the
victim (R v Russell [1933] VLR 59; R v Clarke and Wilton [1959] VR
645).
40. Where a person has a duty to act, s/he may be seen to have assisted
or encouraged the principal offender if s/he fails to offer any protest
to his/her conduct, or fails to offer any effective dissent (R v Russell
[1933] VLR 59).
Intention
41. The prosecution must prove that D intentionally assisted, encouraged
or directed the commission of the offence (Crimes Act 1958
s323(1)(a)).
42. The accused’s state of mind must be assessed at the time s/he gave
the relevant assistance, encouragement or direction rather than at
the time of the offence (White v Ridley (1978) 140 CLR 342).
43. The state of mind the prosecution must prove in relation to a
secondary party differs from the state of mind required for the
principal offender:

For the principal offender, the prosecution must prove that, at
the time of the offence, s/he acted with the state of mind
necessary for that offence;

For the secondary party, the prosecution must prove that, at
the time he or she offered assistance, encouragement or
direction to the principal offender, he or she intended to assist,
encourage or direct him or her (R v Stokes & Difford (1990) 51
A Crim R 25; R v Lam & Ors (Ruling No 20) (2005) 159 A Crim
R 448).
44. At common law, proof of an intention to assist or encourage required
the prosecution to prove that the accused knew of, or believed in,
the essential circumstances that establish the principal offence
(Giorgianni v R (1985) 156 CLR 473). It is likely that the same
principle applies under the Crimes Act 1958.
45. The “essential circumstances” of an offence are the facts that will go
to satisfying the elements of the offence (Giorgianni v R (1985) 156
CLR 473).
46. For mens rea offences, the “essential circumstances” include the
principal offender’s state of mind (R v Stokes & Difford (1990) 51 A
Crim R 25; R v Lam & Ors (Ruling No 20) (2005) 159 A Crim R 448;
R v Phan (2001) 53 NSWLR 480).2
47. Where the offence requires a particular result to have been caused
(e.g., death or serious injury), the accused does not need to know or
intend that this result will be achieved. It is sufficient if s/he knew or
intended that:

the principal offender was going to commit the acts which
ultimately caused that result (but not that those acts would in
fact cause that result), and

the principal offender would have the requisite state of mind
when committing those acts (Giorgianni v R (1985) 156 CLR
473; R v Stokes & Difford (1990) 51 A Crim R 25;
Likiardopoulos v R [2010] VSCA 344).
48. The jury must consider what the accused knew at the time s/he
assisted, encouraged or directed the principal offender, rather than
at the time the principal offender committed the offence (R v Stokes
& Difford (1990) 51 A Crim R 25).
49. The accused does not need to know that the principal offence is a
criminal offence. It is sufficient if s/he intentionally assisted,
encouraged or directed the conduct which constituted that offence
(Crimes Act 1958 s323(3)(b). See also Johnson v Youden [1950] 1
KB 544; Giorgianni v R (1985) 156 CLR 473).
50. For the purpose of attributing criminal liability, an employee’s
knowledge cannot necessarily be imputed to an employer (Ferguson
v Weaving [1951] 1 KB 814).
51. The accused must have actual knowledge or belief of the essential
circumstances. It is not sufficient that he or she should have known
of those circumstances, or failed to inquire about them (Giorgianni v
R (1985) 156 CLR 473).
52. However, the failure of a person to make inquiries about the
circumstances may be evidence that he or she was aware of the
For strict liability offences, while the accused must know the essential
circumstances of the offence, s/he does not need to have any awareness of the
principal offender’s state of mind (Giorgianni v R (1985) 156 CLR 473).
2
relevant facts (Giorgianni v R (1985) 156 CLR 473).
53. The accused must have intended to assist, encourage or direct the
principal offender to commit the offence charged.3 It is therefore not
sufficient for the prosecution to prove that:

The accused had a general intention to assist crime (R v
Clarkson [1971] 3 All ER 344; Giorgianni v R (1985) 156 CLR
473; R v Tamme [2004] VSCA 165); or

That the accused intended to assist or encourage a significantly
different offence (Giorgianni v R (1985) 156 CLR 473; Chai v R
(2002) 187 ALR 436; R v Conci [2005] VSCA 173).
54. Even if the principal offence is one that does not require the principal
offender to have had a particular state of mind when it was
committed (i.e., a strict liability offence), the accused must still be
shown to have intended to assist, encourage or direct the principal
offender to commit that offence (Giorgianni v R (1985) 156 CLR 473;
R v Tamme [2004] VSCA 165; R v Dardovski 18/5/1995 Vic CCA).
Agreement, Arrangement or Understanding
55. Subsection (c) of the definition of “involved in the commission of an
offence” covers the situation where the accused “enters into an
agreement, arrangement or understanding with another person to
commit the offence” (Crimes Act 1958 s323(1)(c)).
56. This replaces the common law principles such as acting in concert,
common purpose and joint enterprise.
57. Offending as part of a group therefore requires proof of three
elements:
i)
That two or more people reached an agreement to commit an
offence that remained in existence at the time the offence was
committed;
ii)
That, in accordance with the agreement, one or more parties to
the agreement performed all of the acts necessary to commit
the offence charged, in the circumstances necessary for the
commission of that offence; and
iii)
That the accused had the state of mind required for the
commission of the relevant offence at the time of entering into
the agreement (Crimes Act 1958 s323(1)(c), s324(1)-(2)). See
also R v Clarke and Johnstone [1986] VR 643; Johns v R (1980)
143 CLR 108; McAuliffe v R (1995) 183 CLR 108; R v
However, see Divergence (below) for a discussion of liability on the basis of
assisting, encouraging or directing a different offence from the one charged.
3
Taufahema [2007] HCA 11; Likiardopoulos v R [2010] VSCA
344; Arafan v R [2010] VSCA 356).
58. 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. It is likely that this requirement no longer
applies to complicity under Crimes Act 1958 s323(1)(c). Instead,
group offending is treated as a form of completed conspiracy.
Formation of agreement
59. For the first element to be met, the prosecution must prove:

That the accused reached an agreement, arrangement or
understanding with others to commit the offence; and

That the agreement, arrangement or understanding remained in
existence at the time the offence was committed (R v Clarke &
Johnstone [1986] VR 643; R v Lao & Nguyen (2002) 5 VR 129).
60. As at common law, the agreement need not be express but may also
be an “arrangement or understanding”. It may be inferred from the
surrounding circumstances (R v Tangye (1997) 92 A Crim R 545; R v
Clarke and Wilton [1959] VR 645; R v Jensen and Ward [1980] VR
196; Guthridge v R [2010] VSCA 132).
61. The agreement must be to commit the criminal offence charged. This
element will not be satisfied if the accused agreed to pursue some
form of wrongdoing that is not criminal, or to pursue a different
offence (See R v Taufahema (2007) 228 CLR 232).4
62. The parties to the agreement do not need to have realised that their
acts would be criminal. This element will be satisfied if they agreed
to perform acts which, in fact, are criminal (Crimes Act 1958
s323(3)(b); Osland v R (1998) 197 CLR 316; R v Cox & Ors [2005]
VSC 255).
63. The parties do not need to have precisely agreed on the scope of the
agreement. This element will be satisfied if they shared an
agreement, arrangement or understanding to commit a particular
criminal act, even if they disagreed on the purpose of that act
(Gillard v R (2003) 219 CLR 1; R v Zappia (2002) 84 SASR 206; c.f.
Collie, Kranz & Lovegrove v R (1991) 56 SASR 302).5
However, see Divergence (below) for a discussion of liability on the basis of an
agreement, arrangement or understanding to commit a different offence from the
one charged.
4
The courts have noted that this can produce an agreement that is narrower than
the purpose of any given party (Gillard v R (2003) 219 CLR 1; R v Zappia (2002)
84 SASR 206; c.f. Collie, Kranz & Lovegrove v R (1991) 56 SASR 302).
5
64. Where the prosecution alleges an agreement, arrangement or
understanding between more than two accused, it may not be
necessary to prove that all of the accused were parties to the same
agreement. It may be sufficient for the prosecution to prove that
there are relationships between the various accused which form a
chain of agreements over a common subject matter (see, e.g., R v
Lao & Nguyen (2002) 5 VR 129).
Timing of agreement
65. The agreement need not have been formed far in advance of the
offence. It may have been formed moments before the offence was
committed (R v Tangye (1997) 92 A Crim R 545; R v Jensen and
Ward [1980] VR 196; Guthridge v R [2010] VSCA 132).
66. The fact that two people spontaneously decided to pursue the same
course of action does not necessarily prove that they were acting
pursuant to an agreement to commit a particular crime (R v
Taufahema (2007) 228 CLR 232).
67. Two or more people may form an agreement that gives one of them
the right to decide whether to commit a criminal act on any given
occasion. Such an agreement will make all of the parties liable, even
though they are not certain when the act will be committed (Miller v
R (1980) 32 ALR 321).
Mentally Impaired Parties
68. At common law, a person who was mentally impaired because s/he
did not realise that his/her acts were wrongful may still have been
able to participate in an agreement to commit an offence. This
allowed a court to find that such an agreement existed in
determining the liability of secondary parties, as long the mentally
impaired person was able to understand the nature and quality of the
act to be performed (Matusevich v R (1977) 137 CLR 633; Osland v
R (1998) 197 CLR 316).
69. Although it is not entirely clear, the better view appears to be that
the same result follows under the Crimes Act 1958. While liability for
complicity under the Act is derivative, the nature of the special
verdict of not guilty because of mental impairment makes it
consistent with a finding that the offence was committed.
70. The doctrine of innocent agent may also apply if the accused
persuades a mentally impaired person to commit an offence
(Matusevich v R (1977) 137 CLR 633).
Cancellation or Completion of Agreement
71. The prosecution must prove that the agreement had not been called
off before the offence was completed (R v Heaney & Ors [1992] 2 VR
531).
72. In some cases, the acts agreed to by the parties may be completed
without achieving the intended purpose of the agreement. In this
situation, a party to the agreement will not be liable for the later
completion of that purpose by any of the other parties to the
agreement (unless s/he agreed to such a variation of the original
agreement) (R v Heaney & Ors [1992] 2 VR 531).
Commission of the agreed offence
73. As noted above in Derivative Liability, proof of complicity requires
proof that a person committed the offence charged.
74. In the context of group offending, the prosecution must also prove
that the commission of the offence occurred in accordance with, or
within the scope of, the agreement, arrangement or understanding.
Conduct outside the scope of the agreement
75. At common law, an issue often arose whether the crime committed
was within the scope of the agreement formed between the parties
(see, e.g. 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).
76. The scope of the agreement must be determined by considering the
subjective beliefs of the participants at the time the agreement was
formed, or at the time the parties agreed to vary the original
agreement (R v Johns (1980) 143 CLR 108; R v McAuliffe (1995) 183
CLR 108).
77. The scope of the agreement includes any contingencies that are
planned as part of the agreed criminal enterprise (R v Becerra (1976)
62 Cr App R 212).
78. The liability of the accused is based on his/her authorisation (express
or implied) of the criminal acts. Even if the accused did not believe
that those acts were likely to be committed, s/he will be liable if they
were within the scope of the agreement (Johns v R (1980) 143 CLR
108; Chan Wing-Siu v R [1985] AC 186; Britten v R (1988) 49 SASR
47).
79. In some cases, the parties will have differed in their understanding of
how the agreed crime was to be carried out, leading to arguments
that the accused had not agreed to participate in the particular
offence that was committed. In such cases, the jury must consider
whether the use of the means adopted placed the offence outside the
scope of the agreement, or alternatively, whether the use of those
means was no more than an incident of carrying out the common
agreement (Varley v R (1976) 12 ALR 347; R v Heaney & Ors [1992]
2 VR 531).
80. Where the agreement involves the use of violence, the jury may
need to consider whether the perpetrator acted outside the scope of
the agreement by unexpectedly using a weapon. This will depend on
the facts of the case, the understanding of the parties, and the
difference between the weapon used and the manner of violence
intended (see Varley v R (1976) 12 ALR 347; R v Anderson [1966] 2
QB 110; Markby v R (1978) 140 CLR 108; Wooley v R (1989) 42 A
Crim R 418; R v Heaney & Ors [1992] 2 VR 531).
81. Under the Crimes Act 1958, the focus is on whether the accused
agreed, arranged or had an understanding with another person to
commit the offence charged. If the offence committed varies from
the offence agreed, then the case may be one of divergence (see
below) and dealt with under subsections (b) or (d) of the definition,
as appropriate.
Accused’s mental state
82. As at common law, the prosecution must prove that at the time of
entering the agreement, the accused had the state of mind required
for the commission of the offence (Osland v R (1998) 197 CLR 316;
Likiardopoulos v R [2010] VSCA 344).
Divergence
83. Subsections (b) and (d) of the definition of “involved in the
commission of an offence” address the situation where there is
divergence between the offence originally assisted, encouraged,
directed or agreed to, and the offence carried out.
84. In those situations, the accused will be liable for the new offence if
he or she:

intentionally assisted, encouraged or directed another offence;
or

entered into an agreement arrangement or understanding to
commit another offence, and
was aware that it was probable that the offence charged would be
carried out in the course of committing the other offence (Crimes Act
1958 s323(1)(b) and (d)).
85. Subsection (d) is more limited than the common law doctrine of
extended common purpose. Under that doctrine, it was sufficient for
the prosecution to prove that the accused foresaw the possibility that
the other offence would be carried out (Johns v R (1980) 143 CLR
108; McAuliffe v R (1995) 183 CLR 108; Hartwick, Clayton and
Hartwick v R (2006) 231 ALR 500; R v Hartwick, Clayton and
Hartwick (2005) 14 VR 125).
86. On the other hand, subsection (b) extends liability compared to the
common law of “aiding, abetting, counselling and procuring”, which
did not include liability for a different offence that the accused knew
would probably occur during the course of the assisted or
encouraged offence.
87. While these sections have not yet been interpreted, it is likely, as a
matter of statutory interpretation, that the word “probable” is an
ordinary English word and it is a matter for the jury to give the word
meaning. If necessary, a judge may suggest that “likely” is an
acceptable synonym (see, e.g. Crabbe v R (1985) 156 CLR 464). If
the jury requires further guidance, it may be permissible to explain
that the word “probable” is used in contrast to what is merely
“possible”. When directing the jury, the judge should not equate the
word “probable” with a “balance of probabilities” test.
Withdrawal
88. A person is not involved in the commission of an offence if he or she
withdraws from the offence (Crimes Act 1958 s324(2)). The Act does
not codify the law of withdrawal, and the common law on this topic is
preserved (Crimes Act 1958 Notes to s324(2) and s324C).
89. At common law, a person is not responsible for the acts of other
parties to an agreement if s/he withdrew from the agreement prior to
its completion (R v Lowery & King (No 2) [1972] VR 560). Under the
Crimes Act 1958, withdrawal may be relevant to both group
offending and also to complicity on the basis of assisting,
encouraging or directing an offence.
90. The withdrawal must ordinarily have been expressly communicated
to the other members of the enterprise. However, in exceptional
circumstances it may be possible for an accused to have implicitly
withdrawn from the agreement (White v Ridley (1978) 140 CLR
342).6
91. The withdrawal must be accompanied by all action the accused can
reasonably take to undo the effect of his/her previous
encouragement or assistance. This may include informing the police
(White v Ridley (1978) 140 CLR 342; R v Tietie (1988) 34 A Crim R
438; R v Jensen and Ward [1980] VR 196).
92. An accused who seeks to withdraw from an agreement must make a
timely and effective withdrawal. An accused will not escape liability
merely by leaving the scene shortly before the offence is completed,
or by attempting to withdraw when it is too late to stop the offence
(White v Ridley (1978) 140 CLR 342; R v Whitehouse [1941] 1 DLR
683; R v Rook [1993] 1 WLR 1005).
For example, where there is a spontaneous agreement to assault another
person, an accused may be able to withdraw by ceasing to fight and walking
away without expressly communicating to others involved in the assault (R v
Mitchell and King (1998) 163 JP 75; R v O’Flaherty, Ryan and Toussaint [2004] 2
Cr App R 20).
6
93. Similarly, a person is not taken to have withdrawn from an
agreement merely because s/he has private feelings of regret, or
wishes that s/he could stop the offence (R v Lowery & King (No 2)
[1972] VR 560).
94. Where the accused has set in motion a chain of events leading to the
commission of an offence, any attempts to withdraw from
participation must be capable of effectively stopping the offending
(White v Ridley (1978) 140 CLR 342).
95. In some cases, the accused may reasonably believe that once s/he
withdraws from the agreement, the other members will not pursue
the original criminal act. In those circumstances, the accused may
not need to take any additional steps beyond countermanding
his/her original instructions or agreement (R v Truong NSW CCA
22/06/1998).
96. It is usually more difficult to withdraw from an agreement at the time
of the offending than beforehand. Withdrawal at the time of the
offending will usually require greater conduct to undo the effect of
the previous agreement (see R v Becerra (1976) 62 Cr App R 212).
97. It is not necessary to consider the issue of withdrawal using
principles of causation. While a principal who continues to offend
despite the timely withdrawal from the agreement by other parties
may be treated as an intervening cause, it is not necessary to do so.
Such an approach is likely to lead to confusion (White v Ridley
(1978) 140 CLR 342; R v Tietie (1988) 34 A Crim R 438; R v Menniti
[1985] 1 Qd R 250).
98. The issue of withdrawal only needs to be addressed if the defence
has pointed to some evidence that shows that the accused
unequivocally countermanded or revoked his/her previous
agreement. The prosecution will then bear the onus of disproving this
withdrawal (White v Ridley (1978) 140 CLR 342; R v Croft [1944] KB
295; R v Rook [1993] 1 WLR 1005).
Availability of statutory complicity
99. A person may be liable for being involved in the commission of an
offence in relation to both indictable and summary offences (Crimes
Act 1958 s324(1)).
100. At common law, it was recognised that secondary liability could be
impliedly excluded for some offences (Mallan v Lee (1949) 80 CLR
198; Giorgianni v R (1985) 156 CLR 473).
101. For offences committed after 1 November 2014, the question will be
whether Crimes Act 1958 s324 is impliedly excluded.
102. The section only expressly excludes one class of offence. Under
section 324(3), liability is not imposed “on a person for an offence
that, as a matter of policy, is intended to benefit or protect that
person” (Crimes Act 1958 s324(3)).
103. For example, a person under the age of 16 is not able to be involved
with the commission of the offence of sexual penetration of
him/herself (see, e.g., R v Whitehouse [1977] QB 868).
104. In addition, the beneficiary of a family violence restraining order
cannot be prosecuted for assisting or encouraging the contravention
of that order (see Family Violence Protection Act 2008 s125).
105. The law recognises that a person cannot attempt to conspire or
attempt to be a secondary party to an offence (whether under the
principles of statutory complicity or common law complicity) (Franze
v R [2014] VSCA 352).
106. Conversely, it is possible for a person to be a secondary party to an
attempted offence. This occurs, for example, when the person enters
into an agreement to complete an offence and that agreement only
produces an attempt at the contemplated offence. The distinction lies
between a joint attempt, which is legally possible, and an attempt to
agree, which is not (Franze v R [2014] VSCA 352).