DPP v Fielding [2025] ACTSC 252

The point taken on the first day of this trial arose because the prosecution proffered a different, though it seemed earlier, version of the indictment dated 7 September 2023. This version of the indictment did not name alleged co-offenders in either of the two counts or refer to joint commission. The version of the indictment for this trial alleged that the accused committed the offences of arson (count 1) and damage property (count 2).

Both counts accurately reflect the statutory formulation for each of the offences.

The prosecution case was that both counts were committed by way of joint commission or in the alternative, by virtue of the accused being knowingly concerned in the commission of the offences. This has always been the prosecution case, consistent with the case statement and the information contained on the back sheet of the indictment with respect to each count.

The accused submitted that both counts on the indictment were defective because they did not ‘plead’ that the offences were committed by joint commission and “give the impression that he’s a sole offender”. Counsel for the accused relied on my July 2024 ruling that the naming of the alleged co-offenders sufficiently disclosed reliance on joint commission in support of the submission that the absence of any such reference was a defect.

The prosecution submitted that the indictment need only identify the elements of the substantive offence that is alleged. Joint commission being a pathway to the establishment of criminal responsibility and not an element of the offence, it is not necessary for it to be referred to in the terms of the count.

The prosecutor indicated that he intended to make plain in his opening address to the jury that that case against the accused relied on joint commission, or in the alternative, that he was knowingly concerned in the commission of the substantive offences.

I ruled that the indictment was not defective, and the accused was arraigned. These are my reasons for so ruling.

First, the ruling I made in July 2024 did not concern whether the naming of alleged co-offenders was necessary but rather whether the absence of a specific reference to ‘joint commission’ in those circumstances was a defect.

The indictment before me for this trial references neither alleged co-offenders nor joint commission. It is not defective in that form.

Section 45A is contained within Part 2.4 of the Criminal Code 2002 (ACT) which deals with extensions of criminal responsibility. Section 45A was inserted into the Criminal Code in 2010 by the Crimes (Serious Organised Crime) Amendment Act 2010 (ACT) (2010 Amending Act).

As Baker J observed in Inglis v Adamson [2024] ACTSC 4 at [54]: Section 45A, prompted by the relevantly identical Commonwealth provisions introduced earlier in 2010 (s 11.2A of the Commonwealth Criminal Code), was intended to address a lacuna by inserting a slightly modified version of the common law principle of joint criminal enterprise into the Code.

Part 2.4 in capturing extensions of criminal responsibility does contain offence creating provisions (ss 44, 47 and 48), sections 45 and 45A are not among them.

As the High Court in R v Holliday [2017] HCA 35; 260 CLR 650 stated at [24]: Part 2.4 of the Criminal Code, titled "Extensions of criminal responsibility", extends criminal responsibility in one of two distinct ways: a person may commit a discrete offence by doing certain things by reference to a substantive offence or a person is "taken to have committed" a substantive offence if certain conditions are met in relation to that offence.

The footnote to this extract from the majority judgment makes plain that ss 44,47 and 48 are discrete offence provisions and ss 45 and 46 set out conditions which, if met, see a person “taken” to have committed the substantive offence.

Accordingly, section 45A, like section 45 does not create a discrete offence: Holliday. Rather they are deeming provisions such that if the conditions of the provision can be established, a person is criminally liable for the commission of the substantive offence, in this case arson and damage property.

Where an accused is alleged to have committed an offence ‘by virtue of s 45 or 45A’ the provisions do not become elements of the offence. The provisions become the pathways by which the prosecution seek to establish the accused is criminally liable for the commission of the substantive offence. Reliance on s 45 or s 45A are particulars of the prosecution case which, whilst necessary to identify in order that an accused know the case against them, are not necessary to plead as elements of the offence.

The view I have taken is consistent with the commentary in Principles of Federal Criminal th Law, 4 edition in which Stephen Odgers suggests that “the appropriate procedure” in relation to an offence alleged to have been committed by joint commission for the identical provisions in the Commonwealth Criminal Code Act 1995, is to charge the accused with the substantive offence.

Compellingly, it is also consistent with the approach endorsed by Howie J in R v Kaldor (2004) 150 A Crim R 271; [2004] NSWCCA 425 at [80] where his Honour determined that an allegation that an accused was criminally responsible for the substantive offence as a joint offender was a matter for particulars.

In the context of an indictment which did include reference to the equivalent in the Commonwealth Criminal Code to s 45 (s 11.2) provision, Howie J concluded at [84] that reference to it in the charge was a “mere particular” of the manner in which it was alleged that the offence was committed and that it could be “disregarded as mere surplusage so far as the statement of the charge is concerned”. His Honour observed that if the reference in the charge to the way in which the accused was said to be criminally responsible was ignored there was a “proper and sufficient statement” of the substantive offence and the indictment. In effect, it was held that the reference in the charge to the manner in which the offence was committed (namely via s 11.2 of the Commonwealth Criminal Code) was unnecessary though did not amount to a technical irregularity in the indictment.

His Honour observed the following at [84]: In my opinion there was no requirement that the indictment be amended. The particular was surplusage to the statement of the charge. That being the case the indictment can be amended to remove it or it can be simply ignored where, as here, there was no risk of the appellant being prejudiced by a technical irregularity in the charge: R v McKinney (unreported, Court of Criminal Appeal, NSW, 6 September 1993); R v Smith (1990) 47 A Crim R 43.

His Honour’s analysis is directly applicable to this indictment. In this instance, the counts were effectively framed as Howie J observed they ought to be in a case which relied on establishing the guilt of an accused via the provisions which extend criminal responsibility – that is without reference to the joint criminal enterprise or the complicity in the offending upon which the prosecution case relied. Reliance by the prosecution on extensions of criminal responsibility in establishing the case against him have always been known to the accused.

The counts in this matter were framed consistent with the statutory formulation of the substantive offences alleged. There was no prejudice to the accused in the form of the indictment and indeed none was identified.

Accordingly, the indictment was not defective and there was no requirement for it to be amended.