Director of Public Prosecutions (Cth) v Ingram

Medium Neutral Citation: Director of Public Prosecutions (Cth) v Ingram [2025] NSWCCA 103

Hearing dates: 19 May 2025

Decision date: 11 July 2025

Before: Leeming JA at [1];
Wright J at [174];
Rigg J at [175]

Decision: 1. Rename the appellant as “Director of Public Prosecutions (Cth)”.
2. Appeal allowed.
3. Set aside the ruling given on 26 February 2025 concerning s 11.3, and in lieu thereof order that it is open to the Crown to proceed, while prosecuting Mr Ingram and Ms Carr in a joint trial on the basis that each was a principal offender, on the basis that the jury may be invited in the alternative to find that Mr Ingram procured Ms Carr within the meaning of s 11.3 such that her conduct is taken to be his for the purpose of establishing the physical elements of the offence.

Catchwords: CRIME — complicity — accessory before the fact — joint indictment — two persons to stand trial on one count of attempt to possess unlawfully imported border controlled drug — Crown alleged both accused persons were liable as principals — alternative Crown case that one accused procured the conduct of the other in attempting collect package at post office and that her conduct was attributed to the first accused as a proxy under s 11.3 of Commonwealth Criminal Code — whether s 11.3 applied to proxy who was charged as a principal — whether Crown could advance alternative cases — whether alternative case required amendment to indictment or further particulars — whether Commonwealth Director of Public Prosecutions v Brady [2016] VSC 334; 346 FLR 1 should be followed — whether s 11.3 confined to proxies who lack sufficient knowledge

Legislation Cited: 11 & 12 Vic c 46
7 Geo IV c 64
Accessories and Abettors Act 1861 (24 & 25 Vict c 94), ss 1, 8
Acts Interpretation Act 1901 (Cth), ss 13, 15AA
Acts Interpretation Amendment Act 2011 (Cth), sch 1, item 22
Crimes Act 1900 (NSW), ss 18, 91A, 345, 346, 351
Crimes Act 1914 (Cth), s 5
Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth), sch 1, item 8
Crimes Legislation Amendment (Serious and Organised Crime) Act 2010 (Cth)
Criminal Appeal Act 1912 (NSW), ss 5D, 5F
Criminal Code Act 1913 (WA), s 7
Criminal Code Act 1995 (Cth)
Criminal Code (Cth), ss 1.1, 2.1, 3.2, 5.1, 5.4, 5.6, 11.1, 11.2, 11.2A, 11.3, 11.5, 11.6, 70.6, 71.19, 72.5, 72.32, 115.5, 261.1, 268.120, 272.7, 273.4, 273A.3, 300.6, 307.5, 400.16, 472.1, 475.1, 476.4, 490.7
Criminal Law Amendment Act 1883 (46 Vic No 17), ss 302, 303, 306
Criminal Procedure Act 1986 (NSW), ss 20, 29, 139, 142, 162
Judiciary Act 1903 (Cth), s 68
Public Governance, Performance and Accountability Act 2013 (Cth), s 105B
Treason Felony Act 1868 (31 Vic No 25), s 7
US Model Penal Code

Cases Cited: Akai Pty Ltd v People’s Insurance Co Ltd (1996) 188 CLR 418; [1996] HCA 39
Alexander v Minister for Home Affairs (2022) 276 CLR 336; [2022] HCA 19
Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 9
Attorney General for New South Wales v XX (2018) 98 NSWLR 1012; [2018] NSWCCA 198
Attorney General of New South Wales v Built NSW Pty Ltd [2013] NSWCCA 299
Batak v R (2024) 114 NSWLR 313; [2024] NSWCCA 66
Bennett v Minister for Public Works (NSW) (1908) 7 CLR 372; [1908] HCA 50
Bettson Properties Pty Ltd v Tyler (2019) 2 QR 178; [2019] QCA 176
Brennan v The King (1936) 55 CLR 253; [1936] HCA 24
Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638; [2012] HCA 1
Caleo v R [2021] NSWCCA 179
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389; [1996] HCA 36
Commonwealth Director of Public Prosecutions v Brady [2016] VSC 334; 346 FLR 1
Commonwealth v Australian Capital Territory (2013) 250 CLR 441; [2013] HCA 55
Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594; [1990] HCA 17
Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26
Davies v Ryan (1933) 50 CLR 379; [1933] HCA 64
Director of Public Prosecutions (Cth) v Burrows [2017] NSWCCA 105
Director of Public Prosecutions (Cth) v Galloway (a pseudonym) [2017] VSCA 120
Director of Public Prosecutions (NSW) v Van Gestel [2022] NSWCCA 171
Director of Public Prosecutions v Shannon [1975] AC 717
Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 153
Gilbert v The Queen (2001) 201 CLR 414; [2000] HCA 15
Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29
H v Minister for Immigration and Citizenship (2010) 188 FCR 393; [2010] FCAFC 119
House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44
Johns v The Queen (1980) 143 CLR 108; [1980] HCA 3
King v The Queen (1986) 161 CLR 423; [1986] HCA 59
Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672; [1979] HCA 26
Likiardopoulos v The Queen (2012) 247 CLR 265; [2012] HCA 37
Lin v R [2019] NSWCCA 171
Marshall v Director-General, Department of Transport (2001) 205 CLR 603; [2001] HCA 37
McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37
Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34
Nguyen v Rickhuss [2023] NSWCA 249
Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75
Peel v The Queen (1971) 125 CLR 447; [1971] HCA 59
Pickett v Western Australia (2020) 270 CLR 323; [2020] HCA 20
Pinkstone v The Queen (2004) 219 CLR 444; [2004] HCA 23 R (Cth) v Rapolti; R (Cth) v Russell; R (Cth) v Speedy Corporation Pty Ltd [2016] NSWCCA 264; 317 FLR 79 R v Batak [2022] NSWSC 424 R v Bellman [1989] 1 AC 836 R v Boujaoude (2008) 72 NSWLR 85; [2008] NSWCCA 35 R v Brown [1996] AC 543 R v Bull and Schmidt (1845) 1 Cox CC 281 R v Franklin (2001) 3 VR 9; [2001] VSCA 79 R v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281 R v Kaldor [2004] NSWCCA 425; 150 A Crim R 271 R v LK (2010) 241 CLR 177; [2010] HCA 17 R v Maharaj [1998] NSWSC 158 (Court of Criminal Appeal, 1 May 1998) R v Mailes (2001) 53 NSWLR 251; [2001] NSWCCA 155 R v Montila [2004] UKHL 50; [2004] 1 WLR 3141 R v Oliver (1984) 57 ALR 543 R v Onuorah (2009) 76 NSWLR 1; [2009] NSWCCA 238 R v Rohan [2024] HCA 3; 98 ALJR 429 R v Seller; R v McCarthy (2015) 89 NSWLR 155; [2015] NSWCCA 76 R v Stewart and Dickens (1818) Russ & Ry 363; 168 ER 846 R v Swindall and Osborne (1846) 2 Car & K 230; 175 ER 95 R v Thomson; R v Dann [2002] NSWCCA 400; 134 A Crim R 252 R v Webb [1995] 1 Qd R 680 R v Welsh [1999] 2 VR 62; [1998] VSCA 138 Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629; [2000] HCA 33 Rohde v Director of Public Prosecutions (1986) 161 CLR 119; [1986] HCA 50 SDA v Corporation of the Synod of the Diocese of Rockhampton (2021) 8 QR 440; [2021] QCA 172 Sheen v R [2011] NSWCCA 259; 215 A Crim R 208 Silk Bros Pty Ltd v State Electricity Commission of Victoria (1943) 67 CLR 1; [1943] HCA 2 South Western Sydney Local Health District v Gould (2018) 97 NSWLR 513; [2018] NSWCA 69 Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325; [2018] HCA 53 Stuart v The Queen (1974) 134 CLR 426; [1974] HCA 54 Sutton v Sutton [1882] 22 Ch D 511 Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 The King v Batak [2025] HCA 18 The Queen v A2 (2019) 269 CLR 507; [2019] HCA 35 Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12 Vallance v The Queen (1961) 108 CLR 56; [1961] HCA 42 Vanstone v Clark (2005) 147 FCR 299; [2005] FCAFC 189 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259; [2008] HCA 5 Webb v The Queen; Hay v The Queen (1994) 181 CLR 41; [1994] HCA 30 Wellington City Corporation v Compton [1916] NZLR 779 Will v Brighton (2020) 104 NSWLR 170; [2020] NSWCA 355

Texts Cited: Australian Legal Dictionary (Butterworths, 1997)
M Dyson, Explaining Tort and Crime (Cambridge University Press, 2022)
P Gillies, The Law of Criminal Complicity (Law Book Company 1980)
RG Glover, “The Statutes Statute” (1986) 3 Canterbury Law Review 61
P Handler, “The Court for Crown Cases Reserved 1848-1908” (2011) 29 Law and History Review 259
Law Com No 177, “A Criminal Code for England and Wales”, ordered by the House of Commons to be printed 17 April 1989
P Lowe, Law of Co-offending in Australia (Federation Press, 2022)
Macquarie Dictionary (9th ed, 2023)
Model Criminal Code Officers Committee Final Report
J Oldham, “Informal Lawmaking in England by the Twelve Judges in the Late Eighteenth and Early Nineteenth Centuries” (2011) 29 Law and History Review 181
Shorter Oxford Dictionary
Sir James Fitzjames Stephen, History of the Criminal Law of England, vol 1 (Macmillan and Co, London, 1883)
The Commonwealth Criminal Code: A Guide for Practitioners (prepared by the Attorney-General’s Department in association with the Australian Institute of Judicial Administration)

Category: Principal judgment

Parties: Director of Public Prosecutions (Cth) (Appellant)
Lachlan Ingram (Respondent)

Representation: Counsel:
R Sharpe KC with A Chhabra (Appellant)
A McGrath (Respondent)
Solicitors:
Commonwealth Director of Public Prosecutions (Appellant)
Australian Criminal Law Group (Respondent)

File Number(s): 2022/335841

Publication restriction: Nil

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mr Lachlan Ingram stands charged on a joint indictment with Ms Shania Rose Carr with a single count of attempted possession of a commercial quantity of an unlawfully imported border controlled drug, contrary to the Commonwealth Criminal Code. The Crown contends that Mr Ingram was involved in arranging delivery of a package from Afghanistan which was intercepted by Australian Border Force officers and found to contain methamphetamine. The drug was replaced by an inert substance and delivered to Australia Post at Broadway. The Crown alleges that Mr Ingram asked Ms Carr to attend the post office to collect the package, which she did (and at which point she was arrested). The Crown intends to invite the jury to find that both Mr Ingram and Ms Carr are guilty of the offence on the basis that each, by their own conduct, attempted to possess the package. However, if the jury is not satisfied that Mr Ingram is guilty based solely on his own conduct, the Crown also intends to invite the jury to find him guilty on the basis that he procured Ms Carr as a proxy to attempt to possess the package, pursuant to s 11.3 of the Code. That provision deems a person who has the relevant fault elements and who procures the relevant conduct of a proxy to have committed the offence in question.

The primary judge held that the Crown could not rely on s 11.3. Her Honour said that the provision had no application where the proxy, Ms Carr, was charged as a principal. Her Honour also said that the Crown could not rely on s 11.3 where it also alleges that Mr Ingram is a principal. The Commonwealth Director of Public Prosecutions appealed from this interlocutory ruling.

The Court held, allowing the appeal:

Per Leeming JA, Wright and Rigg JJ concurring:

1. There was no need for the Crown to amend or seek leave to amend the indictment so as to particularise its reliance on deeming provisions such as ss 11.2 and 11.3. What matters is whether the accused is fairly apprised of the nature of the Crown case, which is determined as a matter of substance, and can be done by the supply of particulars either in the indictment or supplied later: at [72]-[78].

Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29, King v The Queen (1986) 161 CLR 423; [1986] HCA 59, applied.

2. The Crown was not precluded from relying on s 11.3 in its case against Mr Ingram where it also proposes to allege that Mr Ingram is a principal. It was open to the Crown to advance a case in the alternative based on s 11.3, against the possibility that not all aspects of its primary case would be made out: at [89]-[91].
3. The application of s 11.3 of the Commonwealth Criminal Code does not turn on the state of mind of the proxy. There is nothing in the text of s 11.3 which expressly restricts its application to proxies with any particular absence of knowledge. There was no reason in principle to imply limits upon the operation of s 11.3 based on the state of mind of the proxy, and to do so would create awkward results. The pre-existing law of “innocent agency” should not be imported into the Code. The former heading to s 11.3 could not displace the language of the provision. The obiter dicta in Commonwealth Director of Public Prosecutions v Brady [2016] VSC 334; 346 FLR 1 at [936] should not be followed. The avoidance of overlap with s 11.2 was not a good reason to imply an unexpressed limitation upon the words of s 11.3, and the restrictions in s 11.2 do not warrant a reading down of s 11.3: at [94]-[108], [123]-[142], [158]-[172].

Commonwealth Director of Public Prosecutions v Brady [2016] VSC 334; 346 FLR 1, not followed. R v Webb [1995] 1 Qd R 680, distinguished. R v LK (2010) 241 CLR 177; [2010] HCA 17; Vallance v The Queen (1961) 108 CLR 56; [1961] HCA 42, applied.

Consideration of:

4. The Crown’s discretion to charge in the alternative: at [81]-[88].
5. General principles concerning the approach to the interpretation of the Commonwealth Criminal Code: at [101]-[107].
6. The historical context of the rules governing criminal complicity: at [110]-[122].
7. The use of headings and marginal notes in statutory construction: at [123]-[127].
8. The inutility of dictionary definitions: at [144]-[149].

JUDGMENT

1. LEEMING JA: This interlocutory appeal from a pre-trial ruling by the District Court in the prosecution of two persons for a federal drug offence presents questions of general application concerning the operation of the Criminal Code contained in the Criminal Code Act 1995 (Cth).

2. The respondent, Mr Lachlan Ingram, stands charged on a joint indictment with Ms Shania Rose Carr with a single count of attempted possession of a commercial quantity of an unlawfully imported border controlled drug, contrary to s 307.5(1) read with s 11.1(1) of the Code. The essential facts are scarcely unusual. The Crown contends that Mr Ingram had been involved in arranging delivery of a package sent from Afghanistan which, when it arrived in Australia had contained methamphetamine (the drug had been replaced by an inert substance by police), including by asking Ms Carr to collect it, which she did. The Crown alleges that both Mr Ingram and Ms Carr are guilty of the offence on the basis that each by their own conduct attempted to possess the drug. However, if the jury does not find Mr Ingram guilty based solely on his own conduct, the Crown also intends to invite the jury to convict him on the basis that Ms Carr was a proxy whose conduct he procured, thereby engaging s 11.3 of the Code, which provides:

Commission by proxy

A person who:

(a) has, in relation to each physical element of an offence, a fault element applicable to that physical element; and

(b) procures conduct of another person that (whether or not together with conduct of the procurer) would have constituted an offence on the part of the procurer if the procurer had engaged in it;

is taken to have committed that offence and is punishable accordingly.

3. As initially enacted, s 11.3 was titled “Innocent agency”; the current title was inserted in 2010.

4. Earlier this year, the District Court ruled that the Crown was precluded from relying upon s 11.3, as an alternative basis for Mr Ingram’s guilt, in circumstances where both he and Ms Carr were being prosecuted as principals for the same offence. That conclusion drew upon the section’s former title “Innocent agency”, some authority to the effect that “innocent agency” at common law was confined to agents who lacked mens rea, and a passage in a decision of the Supreme Court of Victoria (Commonwealth Director of Public Prosecutions v Brady [2016] VSC 334; 346 FLR 1 at [936]) where it was said that s 11.3 did not “apply to persons who engaged in the offence with the requisite intention at the time of committing the physical element of the offence”.

5. For the reasons that follow, the appeal should be allowed and the ruling set aside. The dictum from Brady limiting the application of s 11.3 should not be followed. Section 11.3 is available irrespective of the “innocence” or otherwise of the proxy. It is open for the Crown to proceed against Mr Ingram and Ms Carr simultaneously on the bases that (a) both are guilty as principals by reason of each satisfying the physical and fault elements of the offence by their own conduct, and (b) if the jury does not find all of the physical elements of the offence made out in relation to Mr Ingram, then alternatively he procured Ms Carr to attempt to possess the imported drug, such that by reason of s 11.3 her conduct is imputed to him for the purpose of satisfying the physical elements of the offence. The alternative pathway to guilt is not reached if Mr Ingram is found guilty by his own conduct, but if it is reached, s 11.3 is available irrespective of whether Ms Carr is guilty or otherwise. In other words, it is available irrespective of whether Ms Carr is found to have had no knowledge, or some knowledge, or sufficient knowledge, to satisfy the fault element of the offence.

Jurisdiction and parties

6. Section 5F(2) of the Criminal Appeal Act 1912 (NSW) provides that “The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in proceedings to which this section applies”. The section applies, inter alia, to proceedings for the prosecution of offenders on indictment in the District Court: s 5F(1). Section 68(2) of the Judiciary Act 1903 (Cth) confers upon this Court “the like jurisdiction” with respect to persons charged with federal offences, inter alia, “with respect to the hearing and determination of appeals”. That language picks up appeals pursuant to s 5F(2). It is settled that s 68(2) read with s 5F(2) operates in that way in relation to Crown appeals from directed acquittals: R v LK (2010) 241 CLR 177; [2010] HCA 17 at [20] and [86]. Other instances in which the Crown has appealed from an adverse interlocutory judgment or order include Director of Public Prosecutions (Cth) v Burrows [2017] NSWCCA 105 (order for separate trial of person charged pursuant to joint indictment) and R v Seller; R v McCarthy (2015) 89 NSWLR 155; [2015] NSWCCA 76 (orders preventing a particular person from giving evidence). It is also well settled that s 68(2) applies to Crown appeals against sentence pursuant to s 5D: Peel v The Queen (1971) 125 CLR 447; [1971] HCA 59; Rohde v Director of Public Prosecutions (1986) 161 CLR 119; [1986] HCA 50; Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638; [2012] HCA 1 at [4]. It is clear that s 5F(2) applies to confer a right of appeal upon the Director from the ruling given by the District Court.

7. The right conferred by s 5F(2) is separate from the right to appeal against “any decision or ruling on the admissibility of evidence” conferred by s 5F(3A). The latter is subject to the condition that the appeal lies “only if the decision or ruling eliminates or substantially weakens the prosecution’s case”: s 5F(3A). The reasoning in R v Seller; R v McCarthy at [78]-[84] confirms that the two rights of appeal are distinct, and the former is not qualified by the “eliminates or substantially weakens” condition.

8. The right is conferred by s 5F(2) upon the Attorney-General or the Director of Public Prosecutions. In proceedings invoking the “like jurisdiction” conferred by s 68(2), the appellant should be the Commonwealth Attorney-General or Commonwealth Director of Prosecutions, as occurred in R (Cth) v Rapolti; R (Cth) v Russell; R (Cth) v Speedy Corporation Pty Ltd [2016] NSWCCA 264; 317 FLR 79 (despite that decision’s name, see the list of parties on the coversheet and what was said at [4] and [91]). Indeed, although the notice of appeal named the Crown as the appellant, an annexure to it stated that the Director was the appellant, as did her submissions. The name of the appellant should be amended to comply with s 5F(3) by replacing “Rex” with “Director of Public Prosecutions (Cth)” and the orders I propose will do just that.

Factual Background

10. The ruling was one of three made on 26 February 2025, pursuant to s 139 of the Criminal Procedure Act 1986 (NSW), made applicable by s 68(2) of the Judiciary Act. There were two rulings on the admissibility of evidence, and a third on s 11.3, following argument which occupied parts of that and the previous day. Much of the evidence tendered on the voir dire for the purpose of the rulings was not included in the appeal books. What follows is taken from the Crown Case Statement, a Notice of Prosecution Case provided pursuant to s 142 of the Criminal Procedure Act, the index to the Crown brief, and some correspondence in advance of trial. What follows is, so far as I can see, uncontroversial, although it is far from exhaustive of the material which bears upon the knowledge or absence of knowledge on the part of Mr Ingram and Ms Carr.

11. Mr Ingram and Ms Carr were in a relationship, and had a very young child. The third co-accused, Ms Kayla Smith, was Mr Ingram’s sister.

12. On 14 October 2022, a consignment arrived in Sydney carried by air from Afghanistan. The consignment comprised packages containing four curtains and four sheets. The Crown Case Statement alleged that it was addressed to a Mr “Cameron Humphery” at an address in Glebe which was Ms Carr’s residential address. It was intercepted and opened by Australian Border Force officers, and found to contain methamphetamine concealed in the curtains, with a calculated pure weight of at least 1,733 grams.

13. The mobile phones of each of Mr Ingram, Ms Carr and Ms Smith revealed exchanges of text messages, from 29 September 2022, regarding the collection or acceptance of the delivery of the package and the distribution of financial benefits. Mr Ingram’s phone also contained an exchange with a person saved as “Smokey” who provided instructions on how to collect the package.

14. On 7 November 2022, police delivered two reconstructed replacement packages of the intercepted consignment to Australia Post at Broadway Shopping Centre. On the morning of 8 November 2022, Mr Ingram sent Ms Carr a text message asking her to pick up the package from the post office. Ms Carr and Ms Smith exchanged messages later that morning about arrangements to pick up the package, before attending the post office and attempting to collect it. The Crown Case Statement alleged that Ms Carr said she was picking up a package that was “under her partner’s name ‘C Humphreys’ [sic]”. She had a delivery slip which she said had been left at her door informing that there was a parcel awaiting collection. She provided identification which showed her address to be the same as the Glebe consignment address.

15. The post office manager called NSW Police at 9.10am notifying them that two women were attempting to collect the package. Police attended, questioned both Ms Carr and Ms Smith, and took both of their phones. Ms Smith placed a call on her Apple watch to Mr Ingram telling him to come to the post office. The women were subsequently cautioned and arrested. Mr Ingram also attended the post office where his phone was seized. He was arrested the next day.

Procedural background

17. Mr Ingram, Ms Carr and Ms Smith were charged on a single indictment. The matter was set down for trial to commence on 25 February 2025. Ms Smith pleaded guilty on 20 February 2025, following which Mr Ingram and Ms Carr were charged on a fresh indictment. The Crown case was that each was at least reckless as to the fact that the substance they attempted to possess was a border controlled drug. Mr Ingram and Ms Carr were arraigned in the District Court on 25 February 2025 and each pleaded not guilty. There ensued pre-trial argument, without the empanelment of a jury.

18. The indictment made no reference to ss 11.2, 11.2A, 11.3 or any other provision of extended criminal responsibility. Instead, it simply charged Mr Ingram thus:

Between about 29 September 2022 and about 8 November 2022, at Glebe or elsewhere in the State of New South Wales, did attempt to possess a substance, the substance having been unlawfully imported, the substance being a border controlled drug, namely methamphetamine, and the quantity attempted to be possessed being a commercial quantity.

Contrary to sections 11.1(1) and 307.5(1) of the Criminal Code (Cth)

Law Part Codes: 41445 and 58468 [Generic Law Part Modifier Code: 48]

19. By the time of the ruling, the Crown contended that its case that Mr Ingram had sought to possess the package as a principal was based on (a) providing Ms Carr’s home address as the address for delivery by a Snapchat message, (b) directing Ms Carr in relation to the delivery on 7 November 2022, (c) receiving updates on delivery, conveying them to Ms Carr and informing an unknown person as to the progress of the delivery, (d) conducting a physical search for signs of delivery on 7 November 2022, and (e) liaising with Ms Carr to collect the package at the post office on 8 November 2022.

20. A Notice of Prosecution Case dated 15 November 2024 in relation to Mr Ingram had said that:

…[I]n addition to alleging the Accused’s criminal responsibility arises as a principal, the Crown reserves the right to rely upon an extension of criminal responsibility by way of aiding, abetting or procuring (s 11.2), joint commission (s 11.2A) or commission by proxy (s 11.3 of the Code).

21. Although its details were not in the materials supplied to this Court, it was formally agreed that there had been a separate trial application in respect of Ms Smith, on 5 February 2025, at which no mention was made of commission by proxy. That seems to have prompted an email sent the following day by a solicitor acting for the Director to the solicitors acting for the respondent stating:

We wished to clarify and put you on notice as to how the Prosecution will contend that Mr Ingram is criminally responsible for the alleged offence:

That is, further to what may have been submitted by Crown counsel yesterday, in addition to alleging Mr Ingram’s criminal responsibility arises as a principal, the Crown continues to reserve its right to rely on an extension of criminal liability, namely commission by proxy under s 11.3(1) of the Criminal Code (Cth).

22. Although once again the Crown’s position was one of “reserving its right”, the letter (which made no mention of ss 11.2 or 11.2A and singled out s 11.3) was understood, correctly, as an intention to seek to establish Mr Ingram’s guilt by relying on s 11.3 in its application to his co-accused Ms Carr.

23. Before the primary judge, it was contended that if the jury formed the view that Mr Ingram’s own conduct was insufficient to amount to possession, it was still open for them to find Mr Ingram guilty if they found that he had directed Ms Carr to receive the package at her home on 7 November 2022 and to pick it up from the post office the following day.

24. This led to Mr Ingram’s application to prevent the Crown from relying on s 11.3. That submission was advanced on two bases. One was an abuse of process, and the other was that it was bad as a matter of law. Both were encapsulated in the submission at the commencement of the address of counsel who then appeared for Mr Ingram:

[O]f course, ironically, in Brady, the Commonwealth DPP told the Court you can’t be a principal and an agent.

And the Court, having looked at the legislation, as well as the explanatory memorandum to the amending bill, agreed with that submission. It said Parliament never intended that an agent or proxy can also be a principal. It’s an either/or situation. …

And in short, your Honour, I’m asking the Court to affirm that basic principle and, in its general discretion - and, of course, your Honour has s 11 of the Evidence Act in terms of an abuse of process - to exercise it to not allow the Crown to ambush the defence on a Friday night with this reserved right, which they’ve been holding up their sleeve for a number of months and, in that interim period, providing an elements document. And to date, the indictment, the Crown case statement, the elements document, still no reference of commission by proxy. So in terms of the history of the matter, I say it’s relevant, and the reason I highlight it, because of course, in terms of the abuse of process, it highlights it, but of course, then there’s that additional point in terms of you’re either a principal or an agent, and the Crown have decided to arraign Ms Carr as a principal not an agent. And of course, as I say, there’s no authority that I can see since Friday evening that says that you can run a case if someone’s a principal, meanwhile that they’re also an agent. So your Honour, those are my submissions in relation to that issue.

25. The submissions on s 11.3 and the evidentiary rulings extended into a second day. The primary judge, conscious that the trial would imminently commence, delivered ex tempore judgments on the afternoon of the second day, following which the prosecutor advised he would be seeking instructions concerning an appeal. Plainly those instructions were received, a notice of appeal was filed a fortnight later, and the trial is now listed for November this year (regrettably, more than three years after Mr Ingram and Ms Carr were charged).

The reasons of the primary judge

26. The primary judge accepted the substance of Mr Ingram’s submission insofar as it was based on s 11.3. Her Honour said that the principle of commission by proxy was “an adjunct to complicity”, enabling conviction of an instigator who, for example “uses the services of an unwitting carrier to bring a prohibited drug into Australia”. Her Honour reproduced [933]-[936] of Commonwealth Director of Public Prosecutions v Brady and noted that no contrary authority had been brought to her attention. Her Honour also referred to Pinkstone v The Queen (2004) 219 CLR 444; [2004] HCA 23 at [59], [63] and [107], a commentary, and a dictionary definition of “procures” (namely, “to obtain or get by care, effort, or the use of special [means]; to effect, cause, bring about, especially by unscrupulous or indirect means”). Her Honour then expressed the following dispositive reasoning:

The Crown case is that the accused, Mr Ingram, committed all of the physical elements of the offence whilst possessed of the requisite intention as a principal. Having regard to what was said in Brady, especially at [936], and for the other reasons referred to above, I accept that to construe section 11.3 as applying to persons who engaged in the offence with the requisite intention that at the time of committing all the physical acts of the offence would be a misapplication of section 11.3, based upon the authorities before me.

Further, I do not accept that the proxy in this case, Ms Carr, who is charged as a principal, can be both a principal and a proxy. As noted in the Crimes Explanatory Memorandum, on the Crown case, she is not an innocent proxy/agent or indeed a person simply with some knowledge who has been procured, but rather is an offender. I find the fact of her being a principal and “a procured agent” is complicated [sic, scil contradicted] by the ordinary meaning of the word “procure” as referred to above in the context of the Crown case.

The authorities, in my view, make it clear that section 11.3 has no application in a case in which the Crown case is that the accused in fact committed all the physical elements required for the offence and as such is a principal. Accordingly, I have determined that the Crown cannot rely on s 11.3 in its case against Mr Ingram where the Crown also proposes to run the case on the basis that Mr Ingram is a principal.

[Her Honour then mentioned prejudice, saying it did not arise, she did not propose to refer to it in depth and doubted there was any.]

So, my position is that in this particular case, given that the Crown is running a case on the basis that Mr Ingram is a principal, and the proposed agent is a principal, the Crown cannot rely on an extension of criminal responsibility pursuant to s 11.3, commission by proxy in respect of Mr Ingram.

27. The Director’s single ground of appeal is as follows:

The trial judge erred in precluding the Crown from putting to the jury as an alternative basis for the accused’s guilt that if he was not guilty on the basis of his own conduct he was nevertheless guilty of the offence by reason of s 11.3 of the Criminal Code (Cth), having procured the conduct of Ms Carr.

28. No part of the appeal turns upon the alleged abuse of process or unfairness said to follow from the late notification of reliance on s 11.3. That reflects not merely the fact that the primary judge did not determine that aspect of the application, but also the reality that some months have now elapsed, the trial of Mr Ingram and Ms Carr has, so this Court was told, been set down in November 2025 (both have been granted bail), and no prejudice was pointed to that could not be cured by delay.

29. The only question in this Court is whether it is possible for the Crown in seeking to establish its case against Mr Ingram to rely upon s 11.3 through his having procured Ms Carr to collect the package in circumstances where, simultaneously, it prosecutes both Mr Ingram and Ms Carr as principals. Yet there are distinct strands in the reasoning of the primary judge. It will be seen that the primary judge accepted the defence submission that “you can’t be a principal and an agent” with the result that her Honour prevented the Crown from simultaneously charging Ms Carr as a principal and relying on her conduct for the purposes of s 11.3 as a pathway to Mr Ingram’s guilt. The primary judge also found that Mr Ingram could not be charged both as a principal who committed all of the physical elements of the offence personally, and also through s 11.3 so as to attribute to him some of the physical elements in fact performed by Ms Carr. The primary judge also mentioned a dictionary definition of “procure”, suggesting that it supported confining s 11.3 to cases where the proxy was innocent.

30. It should be said at the outset that the primary judge had nothing like the assistance this Court received, by way of written and oral submissions, and equally importantly, the opportunity to consider those submissions and research the law. To the contrary, the primary judge was obliged to rule then and there on a complicated question of law which would directly affect how the Crown would open its case to the jury the following day. Further, although I would respectfully take a different view of the point, the primary judge was well entitled to follow the reasons of the Supreme Court of Victoria on a question of the construction of a federal statute in circumstances where no contrary authority was provided to her.

The elements of the offence

31. Before turning to the parties’ submissions on the appeal and their resolution, it is desirable to identify the ways in which the Crown sought to proceed, and the relevant provisions of the Code, and it is best to start with the elements of the offence charged, especially because, as it happens, s 11.1 explicitly mentions s 11.3 and bears upon the construction of the latter. Section 307.5 provides:

307.5 Possessing commercial quantities of unlawfully imported border controlled drugs or border controlled plants

(1) A person commits an offence if:

(a) the person possesses a substance; and

(b) the substance was unlawfully imported; and

(c) the substance is a border controlled drug or border controlled plant; and

(d) the quantity possessed is a commercial quantity.

Penalty: Imprisonment for life or 7,500 penalty units, or both.

(2) Absolute liability applies to paragraphs (1)(b) and (d).

(3) The fault element for paragraph (1)(c) is recklessness.

(4) Subsection (1) does not apply if the person proves that he or she did not know that the border controlled drug or border controlled plant was unlawfully imported.

32. Section 11.1 creates a separate offence of attempting to commit an offence. It provides:

11.1 Attempt

(1) A person who attempts to commit an offence commits the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed.

(2) For the person to be guilty, the person’s conduct must be more than merely preparatory to the commission of the offence. The question whether conduct is more than merely preparatory to the commission of the offence is one of fact.

(3) For the offence of attempting to commit an offence, intention and knowledge are fault elements in relation to each physical element of the offence attempted.

Note: Under section 3.2, only one of the fault elements of intention or knowledge would need to be established in respect of each physical element of the offence attempted.

(3A) Subsection (3) has effect subject to subsection (6A).

(4) A person may be found guilty even if:

(a) committing the offence attempted is impossible; or

(b) the person actually committed the offence attempted.

(5) A person who is found guilty of attempting to commit an offence cannot be subsequently charged with the completed offence.

(6) Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of attempting to commit that offence.

(6A) Any special liability provisions that apply to an offence apply also to the offence of attempting to commit that offence.

(7) It is not an offence to attempt to commit an offence against section 11.2 (complicity and common purpose), section 11.2A (joint commission), section 11.3 (commission by proxy), section 11.5 (conspiracy to commit an offence) or section 135.4 (conspiracy to defraud).

33. Each of Mr Ingram and Ms Carr has been charged with the offence of attempted possession of a commercial quantity of an unlawfully imported border controlled drug created by the effect of s 11.1 upon s 307.5(1). The Crown case was (and argument proceeded on the basis) that the methamphetamine in the package from Afghanistan was replaced by an inert substance by police prior to the consignment arriving at the post office, and that paragraphs (b) and (d) of s 307.5(1) were not in issue. It does not matter that, by reason of the replacement of the methamphetamine, it was not possible for Mr Ingram or Ms Carr to commit the offence created by s 307.5(1), because the separate offence created by s 11.1 upon s 307.5(1) applies to attempts which are impossible: s 11.1(4)(a) (the same position had been reached at general law, although not without difficulty, as explained in R v Onuorah (2009) 76 NSWLR 1; [2009] NSWCCA 238 at [16]-[33]). There was no real dispute that Ms Carr attempted to collect the package from the post office. There may well be a dispute about whether the conduct of Mr Ingram was sufficient to satisfy the element of attempting to possess the border controlled drug, not least having regard to the exclusion of merely preparatory conduct in s 11.1(2). There may also be a dispute about whether, assuming s 11.3 is available to the Crown, Mr Ingram in fact procured Ms Carr to collect the package. Nothing in these reasons is intended to express any conclusion on whether the physical elements of the charged offences have been established. For the purposes of this appeal, attention was focussed on the fault element of the charged offences.

34. It is convenient to note two ways in which s 11.1 addresses the possibility of overlap between the offence of attempting to commit an offence and the offence itself. First, s 11.1(4)(b) makes it clear that a person may be found guilty of attempting to commit an offence if he or she actually committed the offence. In principle, as will be elaborated below, a prosecutor might charge a person with the offence and an attempt to commit the same offence in the alternative, although there is no occasion for that course since alternative verdicts of attempt have long been permitted (see s 162 of the Criminal Procedure Act, enacting the position at common law, as Johnson J writing for this Court noted in Sheen v R [2011] NSWCCA 259; 215 A Crim R 208 at [72]).

35. Secondly, s 11.1(7) makes it clear that there are some offences which do not give rise to a separate offence of attempting to commit them, including relevantly for present purposes the extended criminal responsibility provisions of ss 11.2, 11.2A and 11.3. I shall return to this.

36. Section 3.2 of the Code is titled “Establishing guilt in respect of offences”. That section generally requires proof of (a) the existence of such physical elements as are relevant to establishing guilt for the particular offence, and (b) in respect of each physical element for which a fault element is required, one of the fault elements for that physical element. Section 5.1 provides that the fault elements for a particular physical element may be intention, knowledge, recklessness or negligence. Section 5.4 defines recklessness with respect to “a circumstance” and “a result”. Relevantly, s 5.4(1) provides:

(1) A person is reckless with respect to a circumstance if:

(a) he or she is aware of a substantial risk that the circumstance exists or will exist; and

(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

37. Section 5.4(4) provides that “If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element”.

38. It will be seen that while the fault element of s 307.5(1)(c) is recklessness, the fault elements of that physical element of the separate offence of attempting to possess a commercial quantity of unlawfully imported border controlled drugs would, aside from one thing, be intention and knowledge by reason of s 11.1(3). However, s 300.6 displaces the effect of s 11.1(3). It relevantly provides:

300.6 Recklessness as to nature of substance or plant sufficient for offence of attempt to commit an offence against this Part

Despite subsection 11.1(3), for the offence of attempting to commit an offence against this Part, recklessness is the fault element in relation to any of the following physical elements of the offence attempted:

…

(d) that a substance is a border controlled drug or border controlled plant (a physical element of an offence against Subdivision A, B or C of Division 307 or section 309.12 or 309.13) …

39. Section 300.6 was introduced by the Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth) and came into effect on 27 November 2015, and pursuant to Schedule 1, item 8 of that Act, the amendments apply to offences engaged in on or after the commencement date. Hence in the present case it is sufficient for the Crown to prove recklessness in respect of the physical element that the substance was a border controlled drug, but intention or knowledge in respect of the attempt to possess the package; for offending alleged to have occurred prior to November 2015, knowledge that the substance was a border controlled drug was required to be established: see Lin v R [2019] NSWCCA 171 at [40].

40. Accordingly, and putting to one side elements which were treated as not being in issue for the purposes of this appeal, one way of establishing the guilt of Mr Ingram and Ms Carr is to establish that each of them attempted to possess the package, that before it was intercepted, the package contained a commercial quantity of an unlawfully imported border controlled drug, and that each of them was reckless within the meaning of s 5.4(1) as to whether the package contained a border controlled drug.

41. But s 3.2 is not exhaustive, even though it provides that “the following must be proved”, at least insofar as it may be satisfied by deeming provisions elsewhere in the Code which require one person to be taken to have performed physical elements in fact performed by another. Like every provision of the Code (and indeed like every other provision of every statute), it must be read in conjunction with the other provisions in the same statute. Acts must be read as a whole: see for example Commonwealth v Australian Capital Territory (2013) 250 CLR 441; [2013] HCA 55 at [57] and [59]. In particular, Division 11 of Part 2.4 of the Code, which is titled “Extensions of criminal responsibility”, must be understood as extending the basic rules, including by the deeming provisions of ss 11.2 and 11.3. The extensions of criminal responsibility in that Division fall into a number of different classes.

42. Subsections (1) and (2) of s 11.2 provide as follows:

11.2 Complicity and common purpose

(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.

(2) For the person to be guilty:

(a) the person's conduct must have in fact aided, abetted, counselled or procured the commission of the offence by the other person; and

(b) the offence must have been committed by the other person.

43. Section 11.2 is a deeming provision, as the words “taken to have committed” indicate. It deems a person who aids, abets, counsels or procures the commission of an offence by another person to have committed that offence. Subsection (2) imposes conditions before the person can be found guilty (as does sub-s (3)).

44. Unlike s 11.1, s 11.2 does not itself create an offence. As Howie J explained in R v Kaldor [2004] NSWCCA 425; 150 A Crim R 271 at [79], referring to s 11.6:

The point is that s 11.2 is not mentioned in the section and this is an acknowledgment by the drafter that the section does no more than extend criminal liability for an offence contained in the Code or some other statute. In case it was thought by the reader of s 11.6 that the drafter might simply have overlooked s 11.2, the note following s 11.6 states:

Note: Sections 11.2 (complicity and common purpose) and 11.3 (innocent agency) of this Code operate as extensions of principal offences and are therefore not referred to in this section.

45. Section 11.3 is reproduced at the outset of these reasons. It is well settled that s 11.3 does not create an offence but rather specifies a separate way in which an offence can be committed other than under a strict reading of s 3.2 of the Code, for once again it is a deeming provision, employing the language of “taken to have committed”. It is in the same position as s 11.2 in this respect: Kaldor at [81]. Satisfaction of s 11.3 is a form of extended criminal responsibility for an offence: Kaldor at [75].

46. Thus, the effect of s 11.3 upon the offence created by s 11.1 read with s 307.5 is to create a form of extended criminal responsibility for the offence of attempting to possess a commercial quantity of an unlawfully imported border controlled drug, insofar as another person (Ms Carr) has been procured to perform a physical element of the offence. The physical elements are (a) the attempt (by Ms Carr) to possess a commercial quantity of imported controlled drugs, added to any relevant conduct by Mr Ingram personally and (b) the conduct (by Mr Ingram) to procure Ms Carr to carry out the attempt.

47. Section 5.6(1) provides that “If the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element”. Hence for the conduct of procuring Ms Carr to carry out the attempt, the Crown will need to establish that Mr Ingram meant to engage in that conduct.

48. It will be noticed that none of the foregoing mentions “principal” or “accessory”. That is not how the Code works. A person may be criminally responsible under one of the extended criminal responsibility provisions such as s 11.2 or s 11.3 in which case he or she will be criminally liable through the deeming effect of those provisions. Consistently with this, s 11.1(7) provides that “[i]t is not an offence to attempt to commit an offence against section 11.2 (complicity and common purpose), section 11.2A (joint commission), section 11.3 (commission by proxy), section 11.5 (conspiracy to commit an offence) or section 135.4 (conspiracy to defraud)”.

49. Section 11.2A is titled “Joint commission”. That provision is also a deeming provision. Subsection (1) provides:

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 (within the meaning of subsection (2)); or

(ii) an offence is committed in the course of carrying out the agreement (within the meaning of subsection (3));

the person is taken to have committed the joint offence referred to in whichever of subsection (2) or (3) applies and is punishable accordingly.

50. Section 11.2A had not been enacted when the events giving rise to the prosecution in Brady took place.

The parties’ submissions

The Director’s submissions

51. The Director observed that s 11.3 had been drafted by the Model Criminal Code Officers Committee, and on p 95 of the Final Report it had been said:

403. Innocent agency

The doctrine of “innocent agency” is well known to the criminal law. The Committee drew on s 2.06(2)(a) of the US Model Penal Code and s 7 of the WA Code. The Committee decided that it was not necessary that D cause the innocent agent to commit all the elements of the offence. So, for example, if D assaults V while an innocent agent steals from V, then D will be guilty of robbery. D has committed the assault element personally and has committed the theft element via an innocent agent. The words “whether or not together with any conduct engaged in by the procurer” were added to make this clear. The word “innocent” was deleted to avoid the necessity for P to prove that the agent was innocent. The section now overlaps with complicity. This makes no difference to D’s liability since, if the agent was not innocent, D would be guilty by reason of complicity.

52. The Director also relied upon two documents post-dating the enactment of the Code. One was The Commonwealth Criminal Code: A Guide for Practitioners (prepared by the Attorney-General’s Department in association with the Australian Institute of Judicial Administration), which observed at p 269:

11.3-D Reliance on the principle of innocent agency does not require proof that the agent was innocent:

The principle is meant to merge seamlessly in its applications with s 11.2 Complicity and common purpose. Though the name of the principle suggests that it can only apply when the agent is an innocent, the suggestion is misleading. Section 11.1 [sic] is not limited to cases involving innocent agents - the heading of the section is a convenient and familiar name for the principle which does not determine its applications. Viewed in this light, s 11.3 is an extension of the law of complicity and, in particular, of s 11.2(5), which declares that liability as an accomplice can be incurred even though “the principal offender has not been prosecuted or has not been found guilty”. That provision presupposes that proof of the guilt of the “principal offender” is a prerequisite for conviction of the accomplice, though the principal offender cannot be brought to justice. The principle of innocent agency dispenses with that presupposition, subject to one requirement: the defendant must be proved to have procured the conduct of the other as their agent …

53. As will be seen, the reference in that passage to the section’s heading being a convenient and familiar name “which does not determine its applications” reflects the fact that the guide was published prior to the amendment of s 13 of the Acts Interpretation Act 1901 (Cth) in 2011 and the amendment effected in 2010 by the Crimes Legislation Amendment (Serious and Organised Crime) Act 2010 (Cth), which preserved the text of s 11.3 but altered its title from “Innocent agent” to “Commission by proxy”. The explanatory memorandum accompanying the latter bill was the second document to which the Director referred. The explanatory memorandum stated:

This is a minor and technical amendment which ensures that the heading to section 11.3 reflects its purpose and operation. Section 11.3 applies to defendants who use another person as their agent or instrument to commit an offence. A defendant can be convicted of an offence if they procure another person to engage in conduct that would amount to that offence or part of that offence. The provision can apply both where the agent unwittingly engages in conduct that constitutes an offence (sometimes referred to as an “innocent agent”) and where the agent has some knowledge of the offence they have committed.

The title “Innocent Agency” is therefore misleading as it does not capture situations where the agent has some knowledge of the crime for which they acted as an agent. “Commission by proxy” more accurately reflects the operation of the section (emphasis added by Director).

54. The Director maintained that three textual considerations confirmed that s 11.3 was not concerned with the liability of the proxy. First, there was nothing in the language to limit its application to the case where the proxy was innocent, or had some knowledge of the offending, or was guilty. Secondly, this was not only inconsistent with the explanatory memorandum, but required an impermissible reading in of words such as “who themself [sic] by such conduct is not guilty”, contrary to Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 at [38]. Thirdly, it was said that the words “whether or not together with conduct of the procurer” must have some work to do, and there was no reason to read those words so as to exclude cases where the conduct was in concert. It was said that the construction upheld by the primary judge “requires that there can be no overlap between the extension of criminal responsibility provisions, such that they are mutually exclusive”, and contended that this was contrary to what was noted in the Final Report. Instead, the Director submitted that ss 11.2 and 11.3 were not mutually exclusive, although the Crown might have to make an election. The Director said that s 11.2 and 11.3 might overlap, such as where an accused person procures another to commit an entire offence, where both have a guilty mind, but the pathways to guilt had different elements, making this submission:

However, there are particular elements to each of those pathways to guilt which need to be established before the Crown can prove its case on those bases. For instance, in relation to complicity/common purpose, the Crown needs to prove, inter alia, that the conduct of the accused in fact procured the commission of the offence.

Similarly, in relation to joint commission, the Crown needs to prove, inter alia, that there was an agreement between the accused and the other person to commit the offence.

55. The Director submitted that the primary judge had misunderstood the Crown case, by failing “to appreciate that s 11.3 would be engaged only if the jury was unable to be satisfied beyond reasonable doubt that the respondent was guilty on the basis of his conduct alone”. Although her Honour was entitled to have regard to the common law, s 11.3 was drafted differently and more broadly, and extended to a proxy who was not an “innocent agent”. The Director maintained that the alleged criminal responsibility of a proxy does not affect whether it is open to the Crown to invite the jury to find an accused guilty on the basis of s 11.3, and that the jury’s factual finding as to the criminal responsibility of the proxy does not affect the availability of s 11.3. “[I]t is immaterial whether the other person (the proxy) is completely innocent, or has some knowledge of the offence (as is the allegation here), or is guilty of another offence”, because s 11.3 “does not ascribe any relevance to the criminal responsibility of the proxy when it comes to the applicability of, and application by a jury of, this pathway to guilt in the case against the accused who is said to have procured that other person to engage in one or more physical acts”.

56. The Director also submitted that her Honour’s references to the guilt of Ms Carr as a principal disregarded the possibility that the jury might acquit her. Referring to cases where the Crown alleged that the accused was guilty as a principal in the first degree, and alternatively on the basis of joint criminal enterprise, and in the further alternative on the basis of extended joint criminal enterprise, the Director said that the Crown’s reliance on the alternative pathway to guilt via s 11.3 was no different, noting that “[m]ultiple pathways to guilt are frequently relied on where the evidence may reveal multiple hypotheses as to the person(s) who carried out particular physical elements of an offence”.

57. The Director acknowledged that leaving multiple pathways to guilt to the jury might complicate the jury’s task, and the Crown might limit the ways it advanced, but said that was “fact and circumstance-dependent and it is entirely a matter for the Crown”, which should not be required to elect to abandon or exclude any pathways to guilt. Although the Crown could elect to abandon its case based on s 11.3, there was no reason why it must. The Director did agree, however, that if the Crown were permitted to run the case using alternatives, an extended unanimity direction, requiring the jury to be unanimous as to the particular basis for Mr Ingram’s guilt, would be appropriate:

RIGG J: Madam Director, could I ask you a question about that proposed question order of consideration, would the jury be given an extended unanimity direction, that is would they be required to be unanimous as to the particular basis?

SHARP: Yes, your Honour.

58. Turning to what the primary judge had said about the allegations against Mr Ingram in his own right, the Director submitted:

Her Honour appeared to be of the view that the Crown's reliance on s 11.3 was, in any event, futile in circumstances where its primary case was that the respondent exercised control over the consignment and was, as a result, guilty by his own conduct. There are two issues with that reasoning: first, again, it fails to appreciate that the Crown's case on this basis might not be accepted by the jury. Second, it ignores the fact that the question of whether the respondent’s own conduct amounts to possession is a factual determination to be made by the jury and the jury alone. Her Honour should not have assumed that the jury would necessarily reach the conclusion that the conduct of the respondent, if proved, was to the effect that he was guilty on the basis of his own conduct.

The ruling amounts to a finding on the facts.

It is accepted that s 11.3 has no work to do in a case where the jury finds that the accused committed the offence in their own right.

As has been emphasised throughout these submissions, however, it is not the role of the judge to determine what factual conclusions a jury may reach. That is the function of the jury and the jury alone. As for the Crown, it is entirely a matter for the Crown which charge(s) it proceeds with on indictment, how it particularises those charges, the basis/bases upon which it contends an accused is criminally responsible, and what evidence it calls in its case.

59. Finally, the Director maintained that there was no duplicity in the Crown case, that there could not be an allegation of joint criminal enterprise (because the Crown contended that Mr Ingram knew or believed the package contained a drug, while Ms Carr was only reckless, and thus they could not have formed an agreement within the meaning of s 11.2A(4)), and that Commonwealth Director of Public Prosecutions v Brady was obiter and distinguishable.

Mr Ingram’s submissions

60. Mr Ingram directed attention to the 1994 explanatory memorandum accompanying the Criminal Code Bill, which stated when describing s 11.3 that:

The word “innocent” is not included to avoid the necessity for the prosecution to prove that the agent was innocent. The section now overlaps with complicity. This makes no difference to the defendant’s liability since, if the agent was not innocent, the defendant would be guilty by reason of complicity.

61. Mr Ingram also referred to s 7 of the Criminal Code (WA) and the consideration of the Queensland Code in R v Webb [1995] 1 Qd R 680, all in support of the proposition that these provisions were reserved for cases where the agent lacked criminal responsibility or where intent was an element, he or she lacked intent, citing Webb. The US Model Penal Code took a different approach, and referred in terms to a person who “causes an innocent or irresponsible person to engage in” the conduct.

62. Mr Ingram submitted that it was significant that this was a joint trial, and, under the heading “Section 11.3 is not a substitute for section 11.2” made the following submission:

The trial judge was correct to preclude the Crown from relying upon s 11.3 of the Criminal Code (Cth) and to describe it as a “misapplication of s 11.3” because implicit in the trial judge’s reasoning was that the Crown was seeking to rely upon s 11.3 of the Criminal Code (Cth) as a substitute for relying upon s 11.2 of the Criminal Code (Cth). The Crown was not seeking to rely upon s11.3 of the Criminal Code (Cth) as a mere alternative to the substantive offence that had been pleaded against the respondent in the indictment and the Crown Case Statement.

In substance, the Crown was seeking to run alternative cases that the respondent had procured each of Ms Carr and Ms Smith to commit principal offences and that each of these two women had also committed, it was seeking to do so without applying for leave to amend the indictment to plead these alternative cases, and it was seeking to do so without being constrained by the statutory protections and pre-conditions of guilt that are provided for in s 11.2 of the Criminal Code (Cth).

63. Mr Ingram said that the Director’s submissions confirmed that the Crown was inviting the jury to find that Ms Carr was guilty as a principal and also Mr Ingram guilty via s 11.3 without alleging that he was guilty pursuant to s 11.2, and that s 11.3 “should not, however, be construed as an easier-to-prove substitute for s 11.2”. He maintained that s 11.2 contained important protections, including in s 11.2(4), and the requirement in s 11.2(2)(a) that the person’s conduct must in fact have aided, abetted, counselled or procured the commission of the offence. It was said that there was “no reason for s 11.2 of the Criminal Code (Cth) to have been enacted if s 11.3 of the Criminal Code (Cth) could be used to incriminate all procurers who cause another person to commit an offence … including a person who is alleged to have knowingly committed the principal offence”.

64. In his oral submissions, the respondent said that given Mr Ingram and Ms Carr were being tried in a joint trial, the jury would be left with a case against Ms Carr as principal but against Mr Ingram as both principal and procurer. If the jury were to find Ms Carr guilty but also Mr Ingram guilty on the basis that he procured her conduct, his liability would really be on the basis of complicity pursuant to s 11.2. The respondent said this would allow the jury to return a verdict of “de facto complicity” in circumstances where s 11.2 had not been particularised as an avenue for Mr Ingram’s guilt in the indictment. This would deny Mr Ingram an opportunity to meet a complicity case, and would also deny him the protections and preconditions to guilt provided for by s 11.2.

65. The respondent said that s 11.3 should only be available as an alternative if the jury had first acquitted Ms Carr. The respondent said that the Crown could have particularised both ss 11.2 and 11.3 in the indictment.

66. The respondent also complained that the Crown was seeking to avail itself of s 11.3 in its case against Mr Ingram in a number of different ways, using events on two separate days (Ms Carr was alleged not only to have attempted to possess the package on the 8th but also the 7th of November, having been procured by Mr Ingram to do so on each occasion) and using two separate proxies (Ms Carr and Ms Smith). The respondent said that these alternatives were not separately particularised in the indictment but should have been.

67. Mr Ingram submitted that the explanatory memorandum, and what was said in Pinkstone and Webb, supported the proposition that s 11.2 and 11.3 were true alternatives. He submitted that:

In the context of this joint trial, s11.3 of the Criminal Code (Cth) should be construed as only being available at law as an alternative case against the respondent if the jury had first acquitted Ms Carr of the substantive offence alleged against her. This [is] because the failure of the Crown to rely upon s11.2 of the Criminal Code (Cth) in the case against the respondent as the first alternative case against him denies him the opportunity to meet a case put in substance on this basis, and with the protections to him and express pre- conditions of guilt provided for in s.11.2 of the Criminal Code (Cth).

68. Mr Ingram rejected the Director’s submission that the primary judge’s ruling had misconceived the way in which the Crown was advancing its case. He said that “the trial judge’s reasons demonstrate the problem that was created by the Crown not seeking to rely upon s 11.2 of the Criminal Code (Cth) in the circumstances”. The submission continued:

In particular, the trial judge’s statement “I do not accept that the proxy in this case, Ms Carr, who is charged as a principal, can be both a principal and a proxy” is an implicit recognition of the problem with allowing cases to be left to the jury in which it could find that Ms Carr was guilty of the principal offence and also find that the respondent was guilty of procuring that same offence pursuant to s11.3 of the Criminal Code (Cth) despite it not alleging he was guilty of it pursuant to s11.2 of the Criminal Code (Cth).

69. Mr Ingram then complained that ss 11.2 and 11.3 had not been “pleaded in the indictment to reflect the true nature of the Crown’s case”, saying that the “antecedent act of procurement of the other person to commit the offence in both provisions warrants particularisation in the indictment in order that the accused knows the case s/he has to meet and also to avoid confusing the jury and causing a miscarriage of justice”. He relied on what had been said in R v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281 at [51]-[53], [224] and [232] and said that “the long-established practice of the Crown” was to plead reliance on s 11.2 in an indictment, relying on what Wilson, Deane and Dawson JJ said was the “plainly preferable” practice in Giorgianni v The Queen (1985) 156 CLR 473 at 497; [1985] HCA 29 and invited this Court to reach the same conclusion for s 11.3. Finally, he noted that there was no application to amend the indictment, which would have been governed by s 20 of the Criminal Procedure Act.

Consideration

70. It is convenient to return to the limits of the Director’s appeal. The ground has been reproduced above. Her Honour’s ruling restricting the case sought to be advanced at trial was based on a view as to the ambit of s 11.3. Her Honour’s reasoning was not based on what would be unfair to either accused, or the contents of the indictment, or the absence of particulars; indeed her Honour expressly declined to determine Mr Ingram’s submissions based on an alleged abuse of process. There was no notice of contention seeking to uphold the ruling on a different basis; cf Attorney General of New South Wales v Built NSW Pty Ltd [2013] NSWCCA 299 at [133]-[134], nor did Mr Ingram submit that even if the primary judge’s construction of s 11.3 was wrong, the appeal should be dismissed on other grounds.

71. Mr Ingram’s submissions insofar as they are not directed to the construction of s 11.3 may be put to one side, and not merely because they go beyond the scope of this appeal. They fall into three main categories: those directed to a failure to amend or particularise the indictment; those directed to there being a joint indictment; and those directed to the fact that the same jury was being asked to determine the guilt of both Mr Ingram and Ms Carr by a number of alternative pathways.

There was no need to amend the indictment

72. While it is true that it is preferable for the Crown to particularise its reliance on deeming provisions such as ss 11.2 and 11.3, there is no need for the Crown to amend, and no occasion to seek leave under s 20 of the Criminal Procedure Act.

73. As will be seen in what follows, it was formerly the case that a person charged as a principal to a felony but who was proven to be an accessory before the fact, could not be convicted. But that position was long ago altered by legislation including s 1 of the Accessories and Abettors Act 1861 (24 & 25 Vict c 94), which provided:

Whosoever shall become an Accessory before the Fact to any Felony, whether the same be a Felony at Common Law or by virtue of any Act passed or to be passed, may be indicted, tried, convicted, and punished in all respects as if he were a principal Felon.

74. The passage from Giorgianni on which Mr Ingram relies does not assist him. The passage is as follows:

Upon the assumption that s 351 applied, it was plainly preferable, in order to avoid the possible confusion of the jury, to have added sufficient particulars to indicate how it was that the appellant was charged with the offences alleged against him.

75. That statement of what is “preferable” does not support the proposition that the particulars must be provided in the indictment. Section 351 of the Crimes Act 1900 (NSW) derives from 19th century reforms to simplify the law relating to accessories to felonies and misdemeanours. That passage expressly states that the section “permits the indictment to be framed in this way”, which is to say, without any reference to the statutory deeming. That has been the position for more than 160 years.

76. As part of a fair trial, an accused will ordinarily be entitled to particulars of the charge. In King v The Queen (1986) 161 CLR 423 at 436-437; [1986] HCA 59, Dawson J said for the majority of the High Court:

The aim in framing an indictment should, in fairness, be that everyone, particularly the accused, knows the nature of the charge brought against him. In most cases where an accessory is indicted together with the principal this can best be achieved by charging the accessory in a manner which specifies his participation in the offence. Even where an accessory is indicted alone such a form of pleading is ordinarily preferable … No doubt there will be cases in which the degree of participation of the offenders is not known so that it is appropriate to charge them all as principals (see Reg v Sperotto [(1970) 71 SR(NSW) 334]), but it is not a practice to be followed where it can be avoided. (citations omitted).

77. King v The Queen indicates that the real issue in a case such as the present is not so much the form of the indictment but whether the accused persons are being treated fairly. In King the murder trial was opened on the basis that one of the accused (Matthews) was the principal who shot King’s wife and King was an accessory before the fact. After the close of the evidence, the Crown was permitted to put the case differently, namely, that King had arranged for a third party to kill his wife. The new case fell within the indictment, which had simply charged King as a principal. However the conviction was quashed; had it been known that the Crown case extended to establishing that King had arranged for his wife to be killed, he might have cross-examined or addressed differently: at 432, see also at 429-430.

78. Ultimately, what matters is whether the accused is fairly apprised of the nature of the Crown case, which is determined as a matter of substance, rather than form, and can be done by the supply of particulars, either contained in the indictment or provided later: see Davies v Ryan (1933) 50 CLR 379 at 386; [1933] HCA 64; Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 153 at 169-170; R v Boujaoude (2008) 72 NSWLR 85; [2008] NSWCCA 35 at [48]. It would have been preferable had the Crown confirmed earlier than the weeks preceding the scheduled date of trial that it wished to rely upon s 11.3, but nothing turns on that now.

A joint indictment was appropriate

79. It is also difficult to see how the fact that the Crown has proceeded by way of joint indictment was relevant for present purposes. It was open to the Crown to proceed that way, pursuant to s 29 of the Criminal Procedure Act, because “the offences arise out of the same set of circumstances”, and see Caleo v R [2021] NSWCCA 179 at [133]. The prima facie position when accused persons are charged with committing the same crime is that they should be tried together: see this Court’s decision in R v Oliver (1984) 57 ALR 543 at 547 and Webb v The Queen; Hay v The Queen (1994) 181 CLR 41 at 88-89; [1994] HCA 30, although that general rule may be displaced by establishing a level of injustice or prejudice as has variously been described in the decisions collected by Bathurst CJ in Caleo at [135].

80. True it is that there may be some prejudice in a joint trial, especially where some evidence is only admissible against one co-accused. Nonetheless, that prejudice is ordinarily addressed through a jury direction, coupled with the assumption that, as a general rule, juries understand and follow the directions given by the trial judge: Gilbert v The Queen (2001) 201 CLR 414; [2000] HCA 15 at [13], [31] and [32]. In an extreme case, a Court may accede to an application for separate trials: see P Lowe, Law of Co-offending in Australia (Federation Press, 2022), esp at pp 5-10.

Alternative pathways to guilt

81. The Crown is given a wide discretion to charge in the alternative. That may be done in an appropriate case, even if a primary count and an alternative count were mutually contradictory, although that is an exceptional course: R v Bellman [1989] 1 AC 836; R v Thomson; R v Dann [2002] NSWCCA 400; 134 A Crim R 252. Donovan AJ explained in R v Maharaj [1998] NSWSC 158 (Court of Criminal Appeal, 1 May 1998) that considerations of fairness might entitle or oblige the judge not to permit that course (in this respect, the Director’s submission that it is “entirely a matter for the Crown” if it is to be understood literally goes too far). That there may be alternative and even inconsistent charges for the jury to determine, suggests that Mr Ingram’s complaint about inconsistent pathways to findings of guilt on the same charge is not well-founded.

82. There is no difficulty in principle with the Crown advancing alternative pathways to guilt in relation to the same charged offence. Juries have had similar choices for centuries. For example, as it is put in P Gillies, The Law of Criminal Complicity (Law Book Company 1980) at 189 dealing with felonies:

It is well established that at common law a person charged as a principal in the first degree may be convicted upon proof that he actually aided and abetted, without any obligation being imposed upon the Crown to obtain leave to amend the indictment. The contrary is also true.

83. One of the decisions cited is R v Swindall and Osborne (1846) 2 Car & K 230; 175 ER 95, where two carts and horses were driving together, dangerously and furiously, and at least one of them had run over a man, killing him. The drivers of each cart were each charged with manslaughter, on a joint indictment, the third count of which was that Swindall drove his cart over the deceased with Osborne present and aiding and assisting, while the fourth count charged Osborne with driving his cart over the deceased with Swindall present and aiding and assisting. It was said that the prosecutor had to elect, but Pollock LCB rejected this.

84. The position was different if a person charged as a principal were shown merely to have procured the commission of a felony. At common law, the person could not be convicted as an accessory as an alternative. But that position has long since been altered by statute, to which I shall return.

85. A recent example of alternative pathways to guilt may be seen in The King v Batak [2025] HCA 18. The case involved two intruders, armed with pistols, breaking into an apartment for the purpose of stealing drugs and money. Mr Batak was alleged to have supplied the gun to one of them. Mr Batak had pleaded not guilty to an indictment with one count of murder and one count of armed robbery. Gageler CJ, Gordon, Steward, Gleeson and Beech-Jones JJ said at [18]:

At the trial, the Crown initially sought to rely on three “pathways” to demonstrate the respondent’s culpability for murder, namely his participation in a joint criminal enterprise, the doctrine of extended joint criminal enterprise or accessorial liability. The Crown ultimately narrowed its case by solely relying on accessorial liability whereby the respondent intentionally encouraged and assisted the commission of the foundational offence – armed robbery – by provision of a gun and a high vis shirt, knowing that they were to be used for that offence and where the respondent contemplated the possibility that the gun could be discharged in the commission of the robbery resulting in grievous bodily harm or death. To that end the trial judge directed the jury that, to find the respondent guilty, the Crown had to prove that the “discharge of a gun during the attempted armed robbery with a dangerous weapon was a possibility which the accused was aware of when he provided ... assistance” to the principal offender.

86. On an application to stay the proceedings in R v Batak [2022] NSWSC 424, R A Hulme J said at [29]:

It is, of course, a matter for the Crown to formulate the basis upon which it contends an accused is criminally liable for an alleged crime and judges remain distanced from this exercise of prosecutorial discretion. In aid of the administration of justice, however, Judges are responsible for simplifying the directions given to a jury to a degree that may be readily understood by its lay members…

87. R A Hulme J declined to stay the indictment, but observed that it was difficult to see why the Crown case needlessly extended to three pathways: constructive murder contrary to s 18 of the Crimes Act by participation in a joint criminal enterprise to commit the crime of armed robbery, extended joint criminal enterprise based on the offence of armed robbery, and as an accessory before the fact to constructive murder. His Honour’s remarks appear to have led to a focussing of the prosecution case, which was confined to the third path. The Court of Criminal Appeal held that this third path was not available in law, as being implicitly excluded by s 18 of the Crimes Act: Batak v R (2024) 114 NSWLR 313; [2024] NSWCCA 66. Special leave was granted but then revoked: The King v Batak [2025] HCA 18.

88. That said, as the Director acknowledged in this appeal, the Crown’s reliance on alternative pathways to guilt may lead to complication in the instructions to the jury, which in turn may lead to an election by the Crown or an application by the defence.

89. This is sufficient to resolve one of the bases relied on by the primary judge to support her Honour’s ruling. It will be recalled that the primary judge reasoned that:

section 11.3 has no application in a case in which the Crown case is that the accused in fact committed all the physical elements required for the offence and as such is a principal. Accordingly, I have determined that the Crown cannot rely on s 11.3 in its case against Mr Ingram where the Crown also proposes to run the case on the basis that Mr Ingram is a principal.

90. That with respect cannot be so. If as the Crown contends Mr Ingram is found by the jury applying the criminal standard of proof to have committed all the physical elements of the offence and to have all the fault elements, he will be found guilty without any occasion to resort to s 11.3. But the jury might not be persuaded that all aspects of the Crown case are made out. It is open to the Crown to advance a case in the alternative, against the possibility that not all aspects of its primary case will be made out, based on s 11.3. This is not greatly different from the ordinary situation where the Crown prosecutes on the basis that an accused person is guilty as a principal, or alternatively as an accessory who has counselled or procured the commission of an offence, which has been permitted for centuries. To be fair, I did not understand counsel appearing for Mr Ingram in this Court to seek to defend this aspect of her Honour’s ruling.

91. That said, it is necessary for the Crown to act fairly, and that may involve giving notice of the alternative ways it invites a finding of guilt. I would note that if there is a standard practice of the Crown “reserving its rights” in joint prosecutions in relation to ss 11.2, 11.2A and 11.3 in the “Notice of Prosecution Case” dated 15 November 2024, that is far from best practice, because it does not greatly assist those accused to understand how the Crown intends to proceed. However, in the facts of this case, the Crown case has been particularised, and as it turns out, that has occurred months prior to the (now adjourned) trial date. Although the position taken by the Crown in relation to Ms Carr is now clear, Mr Ingram should be left in no doubt as to how (if at all) any conduct by Ms Smith is sought to be imputed to him.

The construction of s 11.3

92. The other basis of the primary judge’s ruling, and the main point argued on appeal, turns on the proper construction of s 11.3. Either s 11.3 does or does not extend to a case where the proxy is charged as, or is found to be, guilty in her own right. This was reflected in the slogan repeatedly advanced at the pre-trial hearing that “Ms Carr cannot be both principal and agent”.

93. But even here, the primary judge’s ruling cannot be sustained, bearing in mind what has already been said about alternative pathways to guilt. Even if s 11.3 is as narrow as Mr Ingram contended, it remains open to the Crown, in circumstances where it is not suggested that the Director lacked a proper basis to charge Ms Carr as a principal, to proceed in the alternative that her conduct was procured by Mr Ingram and may be attributed to him pursuant to s 11.3. Indeed, Mr Ingram acknowledged as much. As noted above, Mr Ingram accepted that s 11.3 of the Criminal Code (Cth) was available as an alternative case against him if the jury had first acquitted Ms Carr of the substantive offence alleged against her. That concession was properly made.

94. However, for the reasons which follow, s 11.3 has a broader operation, which does not turn on Ms Carr’s state of mind. The starting point for that conclusion of statutory construction is the text, but it remains necessary “at the same time [for] regard [to be] had to context in its widest sense – including its historical context – and purpose”, as Gageler CJ, Gordon and Edelman JJ put it in R v Rohan [2024] HCA 3; 98 ALJR 429 at [25], in an appeal dealing, coincidentally, with the construction of the modern statutory language replacing ancient rules governing criminal complicity. Some of those considerations give rise to arguments which are moderately elaborate. What follows starts with the text, but then addresses (a) general principles of construction of the Code, (b) the historical context of the rules governing criminal complicity, (c) the significance of the former heading to the section, (d) the weight to be given to Commonwealth Director of Public Prosecutions v Brady and R v Webb, (e) the inutility of dictionary definitions and (f) the remaining submissions on construction, before reaching a conclusion based on the text and context of s 11.3.

The text of s 11.3

95. First, there is nothing in the text of s 11.3 which expressly restricts its application to proxies with any particular absence of knowledge. The only question posed by s 11.3 is whether the proxy’s conduct was procured by the person charged.

96. Secondly, the decision not to include within s 11.3 any reference to the proxy being “innocent”, despite the originally enacted heading, was a conscious one, intended to make it clear that if the Crown relied on the provision, it did not have to prove that the proxy was innocent. That was what the original explanatory memorandum explained, noting the provision extended to cases where “the agent has some knowledge of the offence”. As will be seen below, the word “procure” in the context of criminal complicity has for many years been deployed to extend to persons who are persuaded to engage in crime with guilty minds.

97. Thirdly, the point of s 11.3 is to deem a person who is not the proxy but who procures conduct by the proxy to have committed an offence. If s 11.3 applies, then certain conduct by the proxy is attributed to the procurer for the purpose of determining whether all of the physical elements of the offence have been satisfied in respect of the procurer. It seems entirely rational for a statute to provide, where one person procures another person to do conduct which amounts to all or part of the physical elements of a crime, for that conduct to be imputed to the first person if the first person has the fault elements of the crime, because otherwise the device of procuring another to perform some conduct would permit the first person to escape from criminal liability. Further, there is no reason to restrict s 11.3 to cases where the other person has a particular mental state, because to do so would, once again, give rise to cases where by the device of procuring another to do something, the first person can escape criminal liability, unless the first person is also prosecuted in the alternative under s 11.2. In short, there is no reason in principle to imply limits upon the operation of s 11.3.

98. Fourthly, if to the contrary s 11.3 were restricted by reference to the state of mind of the proxy, some awkward results would obtain.

99. It would be necessary to identify the implied restriction on the availability of s 11.3 – is it confined to “innocent” proxies with no notice, suspicion, belief or knowledge, or does it extend to proxies with some level of knowledge, but nonetheless falling short of the fault element for the particular offence?

100. If the former, then there will be a gap whenever the proxy had some level of knowledge.

101. If the latter, then the level of knowledge which would disentitle a person from being a proxy for the purposes of s 11.3 varies with the offence. For the offence of attempting to possess an unlawfully imported border controlled drug, a person may be a proxy if he or she has knowledge which falls short of recklessness, but for an offence where the fault element is intention or knowledge, a person who is reckless but falls short of having the requisite intention or knowledge may be a proxy for the purposes of s 11.3.

General principles concerning the approach to the Code

101. The statute which gives the Code the force of law is the Criminal Code Act 1995 (Cth), and it is convenient to refer to its schedule as the “Code”. The Schedule is not a code in the sense of an exhaustive and comprehensive statement of the law.

102. First, numerous provisions explicitly state that “This Division” or “This Part” or “This Subdivision” or “This Chapter” as the case may be “is not intended to exclude or limit the operation of any other law of the Commonwealth or any law of a State or Territory”: see ss 70.6, 71.19, 72.5, 72.32, 115.5, 261.1, 268.120, 272.7, 273.4, 273A.3, 400.16, 472.1, 475.1, 476.4, 490.7. The only purpose of each of those sections is to state, in terms, that those Divisions or Parts or Subdivisions or Chapters are not exhaustive, doing so despite the fact they are found in a Schedule to a statute which is titled a “Code”: Akai Pty Ltd v People’s Insurance Co Ltd (1996) 188 CLR 418 at 432; [1996] HCA 39. Such a provision requires the balance of the provisions in the Division or Part not to be read as dealing with their subjects exhaustively: see Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34 at [266]-[272].

103. However, the fact that many Divisions and Parts and Subdivisions and Chapters in the Schedule are not to be read as an exhaustive code does not directly bear on the character of the remainder. Chapter 2, which contains the critical provisions of present relevance in Part 2.4, commences with a statement of purpose in s 2.1 that “The purpose of this Chapter is to codify the general principles of criminal responsibility under laws of the Commonwealth”, and then provides that “It contains all the general principles of criminal responsibility that apply to any offence, irrespective of how the offence is created”. The expression of legislative intention in the first sentence of s 2.1 means that the task of determining whether a particular provision is exhaustive or is informed by common law falls to be resolved, at least in part, through the principles of purposive construction, now reflected in s 15AA of the Acts Interpretation Act 1901 (Cth). The legal effect of the second sentence is a little unclear. On one view, it might be read as a statement that Chapter 2 is in fact exhaustive, thereby going further than the purpose stated in the first sentence, and expressing a conclusion as to its legal meaning. But there are difficulties with such a construction of the sentence. For one thing, if the second sentence of s 2.1 does more than express the purpose, then the heading to s 2.1 (“Purpose”) is incomplete. For another, it is a little odd that s 1.1, which is entitled “Codification”, speaks to a different subject, namely, that there are no common law offences. Fundamentally, statute cannot of its own force state conclusively its legal meaning; that is axiomatically the province and duty of the judiciary. Section 2.1 is to be read in light of the truths that “[a] legislature of limited powers ‘cannot arrogate a power to itself by attaching a label to a statute’ and cannot, merely by including a statement of purpose in legislated text, require a court to identify the purpose of a law as something that it is not”: (2022) 276 CLR 336; [2022] HCA 19 at [117] (citations omitted).

The Code is to be read without any preconception that any particular provision has or has not altered the law. It is to be read as an enactment of the Tasmanian Parliament. And, interesting though it is to compare it with other codes, such as that of Queensland from which it is derived, or with projected codes such as Stephen’s Code, they cannot govern its interpretation. But it was enacted when it could be said of the criminal law that it was “governed by established principles of criminal responsibility”. And for that reason we cannot interpret its general provisions concerning such basic principles as if they were written on a tabula rasa, with all that used to be there removed and forgotten. Rather is ch. iv of the Code written on a palimpsest, with the old writing still discernible behind.

107. This appeal directly concerns a provision which employs the language of “procures”, which is sought to be deployed in a prosecution which turns on the application of “attempt” and which is located in a Part which also addresses extension of criminal responsibility in cases where a person “aids, abets, counsels or procures” the commission of an offence, or “incites” the commission of an offence, or “conspires” to commit an offence. Those words, which pick up the language of statutes and judge-made law for many centuries, are to be understood in the sense to which Windeyer J referred. The general statement of purpose in s 2.1 is displaced by the purpose expressed in the extrinsic materials and immanent in language with well established meanings. This has been confirmed (at least in the case of conspiracy) by the High Court.

108. Insofar as Mr Ingram’s submissions posited that there was a common law “innocent agent” rule, which was confined to agents who lacked the relevant mens rea, and then sought to construe s 11.3 which makes no mention of any fault element on the part of the proxy, as confined to that case, it is a submission which cannot be reconciled with Vallance and LK as well as Brennan v The King (1936) 55 CLR 253 at 263; [1936] HCA 24 and Stuart v The Queen (1974) 134 CLR 426 at 437 and 453; [1974] HCA 54. The Code is to be read without any preconception that any particular provision has or has not altered the law.

The historical context of the rules governing criminal complicity

109. As has been seen, ss 11.2 and 11.3 are both deeming provisions, and Mr Ingram’s submissions focussed on the relationship between them, contending that s 11.3 could not be used as a substitute for s 11.2. In order to consider that submission, which turns on an implication, it is necessary to have regard to the purpose and provenance of s 11.2, in accordance with the approach in Vallance and LK mentioned above.

110. Section 11.2 reflects more than two centuries of statutory amendment of common law rules. Section 5 of the Crimes Act 1914 as originally enacted was:

Any person who aids, abets, counsels, or procures, or by act or omission is in any way directly or indirectly knowingly concerned in, or party to, the commission of any offence against this Act or any other Act, whether passed before or after the commencement of this Act, shall be deemed to have committed that offence and shall be punishable accordingly.

111. The provision remained materially unchanged when the Code commenced. It reflected 19th century statutory reform of the rules governing criminal complicity which had been enacted in the Australian colonies. An overview of the position, sufficient for present purposes, is as follows.

112. Crimes were traditionally divided into treasons, felonies and misdemeanours. As Callinan J explained in Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75 at [205], only in relation to felonies did the law recognise different levels of participation, namely, principals, accessories before the fact, accessories at the fact and accessories after the fact, it being said that there was no such differentiation for misdemeanours and treasons because “treasons were regarded as too serious, and misdemeanours as not serious enough, to justify such fine distinctions”. As will be seen, this is the reason for the different treatment of accessories in ss 345 and 346 of the Crimes Act 1900 (NSW) in the case of what are now known as serious indictable offences, from s 351 in the case of what are now known as minor indictable offences.

113. Callinan J also explained at [206] that accessories at the fact were present at the commission of the crime, and participated in some way. They were described as “aiding and abetting”. Some leeway was given to this by the notion of “constructive presence”, for example by a man at the wheel of a get-away vehicle or keeping watch outside a house while his companions inside committed a felony, so long as the accessory was close enough so “as to be able readily to come to assistance”: see P Gillies, The Law of Criminal Complicity, pp 46-47. Later, as Callinan J explained at [208], “accessories at the fact became described, for purposes of classification, as principals in the second degree”. That nomenclature may be seen in s 345 of the Crimes Act 1900 (NSW), which provides:

345 Principals in the second degree—how tried and punished

Every principal in the second degree in any serious indictable offence shall be liable to the same punishment to which the person would have been liable had the person been the principal in the first degree.

114. In contrast, accessories before the fact were described as having “counselled or procured the crime”. As Mason J explained in Giorgianni v The Queen at 493:

In felony at common law the terms “aid” and “abet” are generally used to refer to the conduct of a principal in the second degree, or one who is present at the commission of the offence by the principal offender, while the terms “counsel” or “procure” are generally used in relation to the conduct of an accessory before the fact, or one who is absent at the time of the commission of the offence.

115. The same points about the use of “aids and abets”, and “counsel or procure” were made by Gibbs CJ at 480 and the joint judgment at 500, as well as in McAuliffe v The Queen (1995) 183 CLR 108 at 113-114; [1995] HCA 37 and Likiardopoulos v The Queen (2012) 247 CLR 265; [2012] HCA 37 at [23]. Similarly, in Pickett v Western Australia (2020) 270 CLR 323; [2020] HCA 20 at [95], Nettle J said:

Under the common law doctrines of principal and accessorial criminal liability, an aider or abettor to felony who was present at the commission of the crime, and each participant in a joint criminal enterprise, was a principal to the felony, whereas one who counselled or procured a felony committed in his or her absence was generally an accessory before the fact, and thus only liable to punishment if the principal had been convicted or outlawed (until the Victorian-era statutes referred to above). By way of exception to the latter rule, the common law recognised that, where a person “shall upon malice procure a mad man”, or child lacking criminal capacity, “to kill another, though the mad man”, or child, “shall be excused, yet the incitor or procuror shall be punished as a principall”, lest the wrongdoing go unpunished. But that extension of liability – somewhat imprecisely described as “innocent agency” – in no way denied the principal liability of aiders and abettors to, and parties to a joint criminal enterprise with, persons who were not criminally responsible.

116. One of the “Victorian-era statutes” to which Nettle J referred was s 1 of the Accessories and Abettors Act 1861 (24 & 25 Vict c 94), which provided that accessories before the fact to any felony might be indicted, tried, convicted and punished as if they were principal felons. The New South Wales equivalent is s 346 of the Crimes Act:

346 Accessories before the fact—how tried and punished

Every accessory before the fact to a serious indictable offence may be indicted, convicted, and sentenced, either before or after the trial of the principal offender, or together with the principal offender, or indicted, convicted, and sentenced, as a principal in the offence, and shall be liable in either case to the same punishment to which the person would have been liable had the person been the principal offender, whether the principal offender has been tried or not, or is amenable to justice or not.

117. That reform overrode the rule that an accessory before the fact could not be prosecuted in advance of the principal offender (a rule which had the incidental result that an accessory before the fact to suicide could not be prosecuted). It also avoided the difficulties which occurred in trials such as R v Stewart and Dickens (1818) Russ & Ry 363; 168 ER 846, which Brooking JA described in R v Franklin (2001) 3 VR 9; [2001] VSCA 79 at [37] as an “illustrative case”. A jury found two prisoners guilty of disposing and putting away forged bank notes. They had been charged as principals, and the evidence established that they directed the acquirer of the notes to a woman called “Ann”, to whom the acquirer had been introduced by the prisoners. The prisoners were not nearby when the notes were delivered. The jury was instructed that if they found that “Ann” delivered the forged notes on her own behalf, the prisoners ought to be found not guilty, even though they had procured it, but if she delivered them on behalf of the prisoners they should find them guilty. The judgment was respited so as to take the opinion of the judges, and the report continues:

All the judges were of opinion that it was clear that the woman Ann was a guilty agent, and that the prisoners were only accessories before the fact. They directed that the prisoners should be recommended for a special pardon extending only to this offence, and that they should be detained till the next assizes to be tried as accessories before the fact.

118. The informal and consensual process which occurred in that case, prior to the creation in 1848 of the Court of Crown Cases Reserved, was described by Lord Morris in Director of Public Prosecutions v Shannon [1975] AC 717 at 749 and, more fully, by Sir James Fitzjames Stephen in his History of the Criminal Law of England, vol 1 (Macmillan and Co, London, 1883), pp 311-312 and J Oldham, “Informal Lawmaking in England by the Twelve Judges in the Late Eighteenth and Early Nineteenth Centuries” (2011) 29 Law and History Review 181. The absence of reasons evident in the report extracted above was one reason for the reform: see M Dyson, Explaining Tort and Crime (Cambridge University Press, 2022), pp 99-100 and P Handler, “The Court for Crown Cases Reserved 1848-1908” (2011) 29 Law and History Review 259 at 264 and 282. Nonetheless, the judges’ opinions were regarded as binding precedents: see Oldham, above at 192-199.

119. As explained in R v Welsh [1999] 2 VR 62; [1998] VSCA 138 at [35], there ensued statutes in 1826 (7 Geo IV c 64) and 1848 (11 & 12 Vic c 46) which provided that accessories before the fact to any felony could be indicted, tried, convicted and punished in all respects as if they were principal felons. Those provisions were re-enacted in the Accessories and Abettors Act 1861 (24 & 25 Vic c 94) and ultimately came to be enacted in New South Wales as ss 302 and 303 of the Criminal Law Amendment Act 1883 (46 Vic No 17) and then ss 345 and 346 of the Crimes Act 1900 (NSW), which provisions remain in force more than a century later.

120. The reform of misdemeanours was more straightforward, because it was not necessary to address the various categories of accessories. Section 351 of the Crimes Act, which is the modern NSW counterpart of s 8 of the Accessories and Abettors Act and s 306 of the Criminal Law Amendment Act 1883 and was anticipated by s 7 of the Treason Felony Act 1868 (31 Vic No 25), provides:

351 Trial and punishment of abettors of minor indictable offences

Any person who aids, abets, counsels, or procures, the commission of a minor indictable offence, whether the same is an offence at Common Law or by any statute, may be proceeded against and convicted together with or before or after the conviction of the principal offender and may be indicted, convicted, and punished as a principal offender.

121. It may be seen that ss 345 and 346 each deem a class of accessories to be liable to punishment in the same way as a principal in the first degree. Noting that a “principal in the second degree” is one who “aids or abets”, and that an accessory before the fact is one who “counsels or procures”, the combined effect of those two provisions relating to felonies mirrors the language of “aids, abets, counsels or procures” relating to misdemeanours found in s 351. Section 11.2 should be seen as serving the same purpose, eliding the distinctions both as to the various classes of accessories and as to the different ways in which accessories were characterised in relation to felonies and misdemeanours.

122. The foregoing confirms that the words “aids”, “abets”, “counsels” and “procures” in s 11.2 are no different from the words “conspires” and “overt act” in s 11.5, and the reasoning in LK applies equally to them. The fact that they have been included in a “Code” does not mean that they stand divorced from the meanings attributed to them by the statutory and common law rules which were framed in identical terms. In particular, it must follow that “procures” in s 11.2 is not confined to cases where the procuree is “innocent” but rather extends to cases where the procuree is a principal in the first degree.

The former heading cannot displace the language of s 11.3

123. Prior to 2010, s 11.3 was titled “Innocent Agency”. Those words were taken n**ot to be part of the Act. That is because what is now a heading to a section was originally a marginal note, and s 13 of the Acts Interpretation Act provided that marginal notes were not part of the Act. Lord Hope explained the change in drafting process in the United Kingdom whereby marginal notes were relocated as headings in R v Montila [2004] UKHL 50; [2004] 1 WLR 3141 at [31]. The same occurred in Australia, as may readily be seen by examining the Acts Interpretation Act 1901 as first enacted, where s 13 has no heading but a marginal note “Headings schedules marginal notes and footnotes”. A review of Commonwealth statutes suggests that the change in drafting style occurred in around 1980.

124. Section 13 of the Acts Interpretation Act now provides that the heading is part of the Act. The reason for excluding marginal notes was that they had not been considered by Parliament and were not invariably on the rolls of Parliament. Sir George Jessell, who once held the opposite view, corrected that error in Sutton v Sutton [1882] 22 Ch D 511 at 513, as Stout CJ explained in Wellington City Corporation v Compton [1916] NZLR 779 at 784-785; see also RG Glover, “The Statutes Statute” (1986) 3 Canterbury Law Review 61 at 71-73.

125. Had the timing of the amendments to the Code and the Acts Interpretation Act played out slightly differently, such that the amendment to s 13 of the Acts Interpretation Act had preceded the alteration to the heading of s 11.3, nice questions would arise as to whether when the heading to s 11.3 was amended, the law or its legal meaning was changed. However, the words “Innocent Agency” were removed in 2010 and the change to s 13 rendering the heading part of the Act did not occur until 2011 (see item 22 of Schedule 1 of the Acts Interpretation Amendment Act 2011 (Cth)). At no time when headings were treated as part of the Act was the heading to s 11.3 “Innocent Agency”.

126. Latham CJ, with the agreement of Rich and McTiernan JJ, said in Silk Bros Pty Ltd v State Electricity Commission of Victoria (1943) 67 CLR 1 at 16; [1943] HCA 2, citing Bennett v Minister for Public Works (NSW) (1908) 7 CLR 372 at 383; [1908] HCA 50:

The headings in a statute or in Regulations can be taken into consideration in determining the meaning of provision where that provision is ambiguous, and may sometimes be of service in determining the scope of a provision (see In re Commercial Bank of Australia Ltd). “But where the enacting words are clear and unambiguous, the title, or headings, must give way, and full effect must be given to the enactment”.

127. Likewise, the majority in Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 at 601; [1990] HCA 17 said that while a heading could be taken into account in determining the meaning of substantive provisions where there was ambiguity, a heading could not “control the permissible scope of the substantive provisions” nor could it “properly be used to impose an unnaturally constricted meaning upon the words of those substantive provisions”. The same points have been made in this Court (see R v Mailes (2001) 53 NSWLR 251; [2001] NSWCCA 155 at [105] and Attorney General for New South Wales v XX (2018) 98 NSWLR 1012; [2018] NSWCCA 198 at [165]) and by other intermediate appellate courts: see for example H v Minister for Immigration and Citizenship (2010) 188 FCR 393; [2010] FCAFC 119 at [72]. None of that is to deny that regard may be had to the heading as part of the context, including to “identify the mischief to which the provision is directed and its purpose”: The Queen v A2 (2019) 269 CLR 507; [2019] HCA 35 at [40].

128. In short, while it may be acknowledged that the original heading is part of the context to which regard must be had, there is no sound basis to use it to cut back the open language of s 11.3.

Commonwealth Director of Public Prosecutions v Brady [2016] VSC 334; 346 FLR 1

129. The primary judge accepted Mr Ingram’s submissions based upon Brady. Although in this Court the first instance decision of the Supreme Court of Victoria carries no precedential weight (Nguyen v Rickhuss [2023] NSWCA 249 at [56]), it may nonetheless be persuasive, and warrants careful consideration.

130. Various co-accused sought a stay, based on the proposition that they had been charged as conspirators but the Crown could not prove an agreement. The parties’ positions were the opposite from those taken in the present appeal. The *co-*accused contended that they could have been charged under, inter alia, s 11.3, and the Crown said that s 11.3 was unavailable because it contended that all the accused were active participants in the agreement. The primary judge (Hollingworth J) heard argument over many days, and produced a very long judgment acceding to the application for a permanent stay. In the course of that judgment, her Honour accepted the Director’s submission that s 11.3 was not available in a case where the proxy was said to be an active participant in the offending.

131. Her Honour said at [936]:

Having had regard to both the language of s 11.3, and the Crimes explanatory memorandum, I conclude that parliament did not intend for s 11.3 to apply to persons who engaged in the offence with the requisite intention at the time of committing the physical element of the offence. To construe the section in the way suggested by the accused would encompass persons acting in concert, at a time when acting in concert was not a basis upon which offending could take place under the Code.

132. Her Honour concluded this aspect of her reasons, confirming that s 11.3 was not available, at [1023]:

In conclusion, conspiracy is an appropriate charge, taking into account the complexity of the agreement between the parties, the length of the period within which the alleged criminality occurred, the number of participants, the number and cross-border nature of the transactions, and the organisational framework within which the offending took place. Whether or not the CDPP will succeed in proving the conspiracy, given the various evidentiary deficiencies pointed out by the accused, will be for the jury to determine. However, I am not satisfied that there is another charge available that would be sufficient and effective.

133. Similarly, when dealing with a separate aspect of the prosecution case involving bribes in Nepal, her Honour said at [1061]-[1062]:

The suggestion that the ACC accused could be charged under s 11.3 must also fail. Even if s 11.3 covers multiple procurers, the prosecution case is that the Pandes were active co-conspirators, not merely proxies doing the bidding of the ACC accused.

For similar reasons to those which I gave in relation to Malaysia, I am not satisfied that there is a charge other than conspiracy, which would be sufficient and effective to capture the prosecution case.

134. The entirety of this strand of the argument was obiter. Ultimately this part of the prosecution was ordered to be permanently stayed, on a separate basis, namely the unlawful dissemination of material by the Australian Crime Commission, and although an appeal was allowed (Director of Public Prosecutions (Cth) v Galloway (a pseudonym) [2017] VSCA 120), the High Court by majority allowed a further appeal: Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325; [2018] HCA 53. Her Honour’s conclusion that there should be a permanent stay was reached at [883], before her Honour considered the submissions made about the framing of the indictment.

135. Despite the reasoning not being dispositive, the reserved judgment of the Supreme Court of Victoria on the construction of a federal statute should be accorded careful consideration. But with great respect, I have reached the opposite conclusion.

136. Although the hearing extended over some 54 days over an 11 month period and resulted in an extremely long interlocutory judgment, the reasons insofar as they are directed to s 11.3 are very concise. The entirety of the reasoning on this issue is contained at [932]-[938]. Paragraph 932 identifies the section and the argument that the accused could be charged under s 11.3. Paragraph [933] stated that there was no need to prove an offence by another under s 11.3. Paragraph [934] referred to the history of the section, and the explanatory memorandum when the heading was changed, including:

A defendant can be convicted of an offence if they procure another person to engage in conduct that would amount to that offence or part of that offence. The provision can apply both where the agent unwittingly engages in conduct that constituted that offence (sometimes referred to as an “innocent agent”) and where the agent has some knowledge of the offence they have committed.

137. Paragraph [935] summarised the Director’s submissions, which relied on the 2009 explanatory memorandum. While the Director accepted that the proxy might have “some knowledge” of the offence, the Director said that if the relevant person had knowledge of the offence and carried out the action in preconcert, then the person is not a proxy who has been procured, but an offender. Paragraph [937] noted that s 11.3 did not raise any extraterritorial problem, and [938] observed that at the time of the offending, s 11.2A had not been introduced.

138. The reasoning in [936] was thus the entirety of the reasoning on this issue. It relied on the “language of s 11.3”, the 2009 explanatory memorandum, and the fact that the section would encompass persons acting in concert. None of those three considerations is persuasive. To be direct, I think that all three are wrong. As for the first, what precise aspect of “the language of s 11.3” that warranted departure from its ordinary meaning was not identified. As for the second, I fail to see how reliance on a 2009 explanatory memorandum can assist in determining the meaning of a provision enacted in 1995. How can extrinsic material from 2009 be relied upon to construe a provision of the Code enacted more than a decade earlier? Ultimately I did not understand either side to make any contention to the contrary in the present appeal. As for the third, and contrary to the concluding sentence of [936], acting in concert is quite distinct from procuring the act of an agent. As noted in Johns v The Queen (1980) 143 CLR 108 at 125; [1980] HCA 3, “the common law distinguishes for the purposes of classification between the accessory before the fact and the principal in the second degree, but this classification is quite unrelated to the doctrine of common purpose”. More generally, it is difficult to see how the question of construction of s 11.3 – whether or not it extends to cases where the proxy has the relevant criminal intent – is affected by whether a broader construction would overlap with s 11.2A, a section which had not at that time been enacted.

139. For all those reasons, I respectfully decline to attach weight to the reasoning in Brady.

R v Webb [1995] 1 Qd R 680

140. A Full Court of the Supreme Court of Queensland considered s 7 of the Queensland Criminal Code, which resembles s 11.3, in R v Webb. The section relevantly stated:

Principal offenders

7. (1) When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say –

…

(d) Any person who counsels or procures any other person to commit the offence.

(2) In the fourth case [i.e. para. 7(d)] he may be charged either with himself committing the offence or with counselling or procuring its commission.

(3) A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

(4) Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, the act or omission would have constituted an offence on his part, is guilty of an offence of the same kind, and is liable to the same punishment, as if he had himself done the act or made the omission; and he may be charged with himself doing the act or making the omission.

141. The Full Court observed at 684-685:

Section 7 therefore applies in two distinct situations. In the first situation, A procures B to commit an offence: that is, B himself or herself commits an offence. In this situation, A can be charged with either committing the offence or with procuring the offence. The same consequences follow in each case.

In the second situation, dealt with by the final paragraph of s. 7, A procures B to do an act or make an omission in such circumstances that B does not commit any offence, even though, had A personally done the act or made the omission, A would have committed an offence. In this situation, A is liable for the same offence and to the same punishment as if he or she had done the act or made the omission. This final paragraph of s 7 applies in circumstances where A commits an offence by the use of an “innocent agent”. B acts as an innocent agent where he or she lacks criminal responsibility (see, for example White v Ridley (1978) 140 CLR 342 at 346–347) or where intent is an element of the offence and he or she lacks that intent.

142. In the present appeal, Mr Ingram submitted that “there the Queensland [Full Court] recognised that in the application of that provision, the person, the agent needed to be innocent or lacking criminal responsibility”. If that were indeed so, some weight would need to be given to that decision, being on cognate legislation, notwithstanding the textual differences, which in fact are greater than may first appear. In particular, the fact that sub-ss (3) and (4) are found in the same provision may point more strongly to an interrelationship than is the case for ss 11.2 and 11.3, and it is also necessary to bear in mind that the penultimate paragraph is not accompanied by the qualifying provisions found in s 11.2(3)-(7). Those considerations would tend to favour the application of what was said by McHugh J in Marshall v Director-General, Department of Transport (2001) 205 CLR 603; [2001] HCA 37 at [62], and endorsed by a unanimous High Court in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259; [2008] HCA 5 at [31], to the effect that what was said of the Queensland Code is a guide, but cannot control, the construction of the cognate Commonwealth Code. But it is not necessary to go that far. The reasons in Webb are simply not expressed to be stating the limits of the operation of the section. They simply identify cases to which the provision undoubtedly extends, and there is no sound basis for them to be understood in the way Mr Ingram contended. Another way of making this point is that the statement that the final paragraph applies to a case of an innocent agent is basally different from the proposition that the final paragraph applies only to a case of an innocent agent. The Full Court’s decision in Webb contains the former statement, but Mr Ingram’s submission depends on the latter.

The inutility of dictionary definitions

143. The primary judge relied on a Macquarie Dictionary definition as confirmatory of a construction by which s 11.3 did not extend to a proxy with a guilty mind. Precisely which dictionary meaning her Honour relied on, and precisely how that meaning was deployed, was not made clear in the reasons (it is to be reiterated that her Honour’s oral reasons were given urgently in light of the imminent empanelling of the jury). It is likely that the reasoning picked up the conclusion of the definition given in the Macquarie Dictionary “especially by unscrupulous or indirect means”, and her Honour deployed that meaning to support an implied restriction in the scope of the provision to procurees who lacked the fault element of the offence. I do not regard that reasoning as persuasive. Indeed, it is counter to authority.

144. First, the comfort from the invocation of something so authoritative as a dictionary is illusory. As has repeatedly been observed at the appellate level, “citing … dictionaries creates a sort of optical illusion, conveying the existence of certainty – or ‘plainness’ – when appearance may be all there is”: see House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44 at [28]; South Western Sydney Local Health District v Gould (2018) 97 NSWLR 513; [2018] NSWCA 69 at [78]-[81]; Will v Brighton (2020) 104 NSWLR 170; [2020] NSWCA 355 at [52]-[57]; Director of Public Prosecutions (NSW) v Van Gestel [2022] NSWCCA 171 at [53]. The dictionary’s purpose is to identify the range of possible meanings of the word; that says nothing of its particular meaning in the particular context which is relevant. As Weinberg J observed, “Dictionary definitions are unhelpful, and say little, if anything, about how that term is to be understood in any particular situation”: Vanstone v Clark (2005) 147 FCR 299; [2005] FCAFC 189 at [163]; see also Bettson Properties Pty Ltd v Tyler (2019) 2 QR 178; [2019] QCA 176 at [22]; SDA v Corporation of the Synod of the Diocese of Rockhampton (2021) 8 QR 440; [2021] QCA 172 at [9]-[10]. The dictionary conveys nothing more nor less than that sometimes the verb connotes unscrupulousness, and sometimes it does not. That proposition about the range of meanings of the verb does not relevantly bear on whether its use in s 11.3 is one confined to unscrupulous conduct by the procurer upon a proxy who does not appreciate the procurer’s purpose.

145. The use of “procure” in s 11.3 falls to be construed in a context where s 11.3 follows s 11.2 which refers to “aids, abets, counsels or procures”. Those words reflected two forms of complicity, namely, accessories at the fact and accessories before the fact, and the abrogation by nineteenth century legislation of distinctions between those two classes of accessories. It is clear beyond argument that “procure” in s 11.2 extends to a procuree who is not innocent. Indeed, the deeming effected by s 11.2 only operates if the procuree committed the offence, and did so by reason of the procuring by the procurer: those are the two conditions imposed by s 11.2(2). Another way of putting this is that the deeming effected by “procures the commission of an offence” in s 11.2 only applies where the procuree has the relevant fault elements. That tends to tell against a meaning of “procure” in s 11.3 that is confined to persons who do have the relevant fault elements.

Some caution concerning “procures”

151. In this appeal, attention has been focussed on “procures” in s 11.3, and it was natural for submissions to have been directed to the meaning of the same word in s 11.2. Ordinarily, one would not expect the word in s 11.2 to have a radically different meaning from the same word in s 11.3. But some care needs to be taken in this respect with the Code.

152. The separate reforms of accessory liability for accessories before the fact and accessories at the fact, in the case of felonies, coupled with the more straightforward reform of accessory liability for accessories to misdemeanours, are reflected in s 11.2. There is a deal of Australian authority to the effect that s 351 of the Crimes Act 1900 (NSW) (the provision which reforms accessory liability for what once were misdemeanours) is merely declaratory of the common law, which has a consequence for how the words “aids, abets, counsels, or procures” are to be construed. Mason J said in Giorgianni at 492, speaking of the four verbs in s 351:

Once it is acknowledged that those terms are merely declaratory of the common law, it is to the common law concept of secondary participation, and not to the ordinary meaning of the words themselves, that regard must be had.

153. Gibbs CJ observed that the words were declaratory of the common law at 480. The joint judgment of Wilson, Deane and Dawson JJ similarly stated at 505 that “Aiding, abetting, counselling or procuring the commission of an offence requires the intentional assistance or encouragement of the doing of those things which go to make up the offence”.

154. This gives rise to the following consideration which might tend to diminish the significance of “procure” appearing in both ss 11.2 and 11.3. While s 351 of the Crimes Act 1900 (and s 8 of the Accessories and Abettors Act 1861) were declaratory of the common law as to misdemeanours, it is clear that ss 345 and 346 brought about substantive change in the law as to felonies. Yet the Code draws no distinction between felonies and misdemeanours, and s 11.2 uses the language of “aids, abets, counsels or procures”. Does what has been said of the same words in s 351 of the Crimes Act apply to s 11.2?

155. The Court received no submissions on this. I am inclined to the view that it would be unsafe to proceed on the basis that what was said of the construction of “aids, abets, counsels or procures” in s 351 is especially relevant to the same words in s 11.2. That is because the reasoning in Giorgianni turned on the same words in a very different context, namely, a context in which those words were declaratory of the common law. That does not apply to ss 345 and 346 where the same words were used by statutes to reform the law of accessories to felonies, and where there was a change in the law. Of course, the manner in which the distinction between felonies and misdemeanours was abrogated in New South Wales has left ss 345 and 346 standing separately from s 351, while s 11.2 applies across the field to all federal offences.

156. There is one further point, which is related to the above. It is all too easy to focus upon individual words. But it is axiomatic that (a) the words in a sentence are not building blocks whose meaning is unaffected by the rest of the sentence, (b) the sentence is the unit of communication by which language works, and (c) the significance of individual words is affected by other words and the syntax of the whole sentence. Lord Hoffmann explained this in R v Brown [1996] AC 543 at 561 and his Lordship’s speech was endorsed in Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 397; [1996] HCA 36, noting that “[t]he meaning attributed to individual words in a phrase ultimately dictates the effect or construction that one gives to the phrase when taken as a whole and the approach that one adopts in determining the meaning of the individual words of that phrase is bound up in the syntactical construction of the phrase in question”. The task is not to ascertain the legal meaning of any particular word in s 11.3, but instead to determine the meaning of the section as a whole.

Other arguments of construction

158. Mr Ingram also sought to support the construction upheld by the primary judge by reading ss 11.2 and 11.3 together. Both deem persons who procure the conduct of another to themselves have committed the offence. But, as Mr Ingram emphasised, the deemed extension of liability effected by s 11.2 is different: it requires proof of the matters in s 11.2(2)(a) and (b), and is subject to the exclusion in s 11.2(4). On the other hand, s 11.3 applies when some or all of the conduct comprising the offence has been procured, and that conduct, together with the procurer’s own conduct satisfies all the physical elements of the offence and the procurer has all of the fault elements. Another way of putting that is that s 11.3 deems conduct procured by the procurer to be the procurer’s own conduct for the purposes of determining whether the procurer has committed the offence.

159. I do not accept that the differences in s 11.2, or the special protections in s 11.2, indicate that s 11.3 is confined to proxies who are “innocent”. This is not a case where there are two powers dealing with the same subject matter, such as the power to make an award in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 9 or the power to make a loan in Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672; [1979] HCA 26 where restrictions attaching to the exercise of one power sustain an inference that the other power cannot be used so as to sidestep those restrictions. Instead, there are two deeming provisions which extend criminal responsibility in specified circumstances. The fact that both of those deeming provisions may have application where one person procures conduct by another which constitutes the entirety of the physical elements of an offence does not provide a basis for inferring that one is to be read down.

160. Finally, Mr Ingram submitted that there would be no reason for s 11.2 if s 11.3 could be used to incriminate all persons who cause another person to commit an offence regardless of the person’s criminality, including where the person had knowingly committed the offence. That is unpersuasive. Section 11.2 applies to persons who “aid”, “abet” and “counsel” as well as “procure”. That class of persons must extend to those who are present at the scene (traditionally, those who have “aided” or “abetted”), in contrast to those who merely counsel or procure. Moreover, s 11.2 is narrower in that the offence must be committed by the other person, while s 11.3 permits the attribution of acts of the other person to the procurer, even if the other person’s conduct was so limited that it could never amount to the commission of the offence and therefore only matters because when combined with the procurer’s own acts the physical elements of the offence are established.

161. It may be accepted that at least in large measure, the construction of s 11.3 propounded by the Director will overlap with that part of s 11.2 which extends to procuring the commission of an offence. But the avoidance of overlap is not a good reason to imply an unexpressed limitation upon the words of s 11.3. What is more, as the Director submitted, the words in s 11.3 “whether or not together with the conduct of the procurer” make it clear that s 11.3 applies both to conduct of the proxy which falls short of amounting to all of the physical elements of an offence and to conduct of the proxy which amounts to all of the physical elements of an offence. That is to say, those words in s 11.3 make it clear that s 11.3 is capable of applying to the case contemplated by s 11.2, namely, where a third person engages in all of the conduct which is sufficient to satisfy the physical elements of the offence as a consequence of the procuring. In short, the textual basis which entails overlap must displace Mr Ingram’s submission that there is some unexpressed limitation which precludes overlap.

“Those terms – common purpose, common design, concert, joint criminal enterprise – are used more or less interchangeably to invoke the doctrine which provides a means, often an additional means, of establishing the complicity of a secondary party in the commission of a crime. [emphasis added].

165. This is related to Mr Ingram’s submission that s 11.3 is confined to the limits of the common law “doctrine of innocent agency”. It was said that “the overall form of the provision reflects earlier both common law conceptions of the principle or the doctrine of innocent agency”. For the reasons already given, it is wrong to construe s 11.3 on the assumption that it re-enacts the existing law.

166. The force of that may also be seen as follows. Mr Ingram’s submission amounts to the proposition that at common law, the notions of “innocent agent” and counselling or procuring another to commit an offence were non-overlapping. And indeed, that is supported by statements such as that by Alderson B in R v Bull and Schmidt (1845) 1 Cox CC 281: “If a person does an act of this kind with a guilty intent, he is not the agent of anyone. If he does it innocently, he is the agent of some person or persons”, which in turn was endorsed by McHugh and Gummow JJ in Pinkstone v The Queen (2004) 219 CLR 444; [2004] HCA 23 at [63]:

The doctrine of innocent instrumentality necessarily depends for its operation upon the innocence of the instrument used by the perpetrator to commit the offence. If the instrument is not innocent but at the time of the commission of the offence has a consciousness of guilt, the instrument may be accountable as the perpetrator and the would-be principal as an accessory before the fact.

167. It would have been possible for the Code to proceed on that approach. In fact the Law Commission’s recommendations in 1989 supply an example (see Law Com No 177: “A Criminal Code for England and Wales”, ordered by the House of Commons to be printed 17 April 1989). The Bill was never enacted, but proposed s 17(3) resembles s 11.2 and proposed s 26(1)(c) resembles s 11.3 as follows:

17(3) A person who procures, assists or encourages another to cause a result that is an element of an offence does not himself cause that result so as to be guilty of the offence as a principal except when

(a) section 26(1)(c) applies; or

(b) the offence itself consists in the procuring, assisting or encouraging another to cause the result.

26(1) A person is guilty of an offence as a principal if, with the fault required for the offence …

(c) he procures, assists or encourages such act or acts done by another who is not himself guilty of the offence because

(i) he is under ten years of age; or

(ii) he does the act or acts without the fault required for the offence; or

(iii) he has a defence.

168. Those provisions make it clear that s 17(3) does not apply if s 26(1)(c) applies. It is also clear that the members of the Model Criminal Code Officers Committee were aware of the draft English reforms, which are mentioned throughout the report, including in paragraph 404 on incitement, on the same page as paragraph 403 on innocent agency to which reference has been made above. The report states that “[t]he Committee drew on s 2.06(a) of the US Model Penal Code and s 7 of the WA Code” and it is clear that the Committee chose to depart from the drafting of the Law Commission which explicitly carved out a limited operation for innocent agency.

169. There is nothing in the Code enacted as federal law in this country that would confine s 11.3 in the fashion proposed by the Law Commission. This serves to confirm the force of the proposition at the forefront of the Director’s submissions, namely, that the Code should be construed by reference to its own language, rather than according to pre-conceived notions derived from judge-made law.

Conclusions on construction

170. The nature of litigation on questions of construction is that a variety of submissions, some straightforward, others elaborate, are put forward. In deference to the submissions which have been advanced, I have sought to address them all, at the risk of diluting the force of those which are simplest and most potent.

171. It is useful to return to the text. The text of s 11.3 is silent as to the proxy’s state of mind, and prima facie applies in its terms, indifferently to the proxy’s ignorance or suspicion or belief or knowledge. The original heading, replaced 15 years ago, cannot be used to limit the generality of the test. The pre-existing law of “innocent agency” is not to be imported into the Code. Section 11.3 is to be read with s 11.2, but the restrictions and qualifications in s 11.2 do not warrant a reading down of s 11.3. “Procure” in s 11.2 extends to procuring the conduct of a person who is a principal offender, and that points against the same verb bearing a markedly narrower meaning in s 11.3. In point of principle, s 11.3 is made necessary lest the Code’s insistence that for each offence, it is necessary to establish physical elements as well as fault elements, displaces ordinary considerations that a person who with sufficient knowledge of its criminality procures another’s act will have that act imputed to him or her. No part of that purpose confines the procuree to any mental state. The obiter dicta in Commonwealth Director of Public Prosecutions v Brady turned upon the absence of s 11.2A and in any event did not purport to engage with most of the considerations mentioned above.

172. I conclude that s 11.3 bears its ordinary meaning. The deeming effected by it is unaffected by the mental state of the proxy, and the dicta to the opposite effect in Brady at [936] should not be followed. It is open to the Crown to proceed, in the alternative, on the basis that if the jury is unpersuaded of Mr Ingram’s guilt by reason of his own conduct, then the Crown may seek to rely on s 11.3 in its application to Ms Carr as a proxy, despite the fact that she stands charged as a principal offender.

Orders

173. For those reasons, the appeal should be allowed and the ruling set aside. I propose the following orders:

1. Rename the appellant as “Director of Public Prosecutions (Cth)”.

2. Appeal allowed.

3. Set aside the ruling given on 26 February 2025 concerning s 11.3, and in lieu thereof order that it is open to the Crown to proceed, while prosecuting Mr Ingram and Ms Carr in a joint trial on the basis that each was a principal offender, on the basis that the jury may be invited in the alternative to find that Mr Ingram procured Ms Carr within the meaning of s 11.3 such that her conduct is taken to be his for the purpose of establishing the physical elements of the offence.

174. WRIGHT J: I agree with Leeming JA.

175. RIGG J: I have had the considerable advantage of reading the judgment of Leeming JA in draft. I agree with the orders proposed by his Honour. I agree that the deeming effected by s 11.3 does not depend upon the mental state of the proxy, in substance for the reasons given by his Honour.

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Amendments

13 March 2026

[26]: “needs” replaced by “[means]”

• [58]: inserted full stop after “…finding on the facts”
• [59]: inserted “v Brady” after “Commonwealth Director of Public Prosecutions”
• [61]: changed “Criminal Code Act 1913” to “Criminal Code”
• [67]: inserted “[is]” to read “This [is] because…”
• [71]: inserted “the” to read “those directed to the fact…”
• [118]: changed from “Lord Reid” to “Lord Morris”.
• [138]: replaced “in” with “of” to read “language of s 11.3”
• [158]: inserted “(2)” to read “s 11.2(2)(a)”