Giorgianni v The Queen

High Court of Australia|1979-05-18|Before: Dawson JJ

The application of the doctrine of secondary participation to statutory offences involving no mental element has been considered in a number of cases. In general, the absence of intention as an element of the substantive offence has not been regarded as obviating the necessity for knowledge on the part of the secondary party of the essential facts constituting the offence. The "link in purpose" between the secondary party and the principal offender is not established where a person does something to bring about, or render more likely, the commission of an offence by another in circumstances in which, through ignorance of the facts, it appears to him to be an innocent act.

The classic statement of the position is that of Lord Goddard C.J. in Johnson v. Youden [5] :

The reason why, in our opinion, the justices were right in dismissing the informations against the first two defendants is that they found, and found on good grounds, that they did not know of the matters which in fact constituted the offence; and, as they did not know of those matters, it follows that they cannot be guilty of aiding and abetting the commission of the offence.

This statement has received the endorsement of the House of Lords in Reg. v. Churchill [6] , and Reg. v. Maxwell [7] and has been followed in a number of English cases: Ackroyds Air Travel Ltd. v. Director of Public Prosecutions [1] ; Thomas v. Lindop [2] ; Ferguson v. Weaving [3] ; Smith v. Jenner [4] ; D. Stanton & Son Ltd. v. Webber [5] . The proposition that a person cannot be convicted of secondary participation at common law unless he knows the facts which must be proved to show that the offence has been committed has also been embraced in Australia: Abley v. Crosaro [6] ; Blackmore v. Linton [7] ; Reg. v. Glennan [8] ; Dennis v. Pight [9] . The reasoning of the Full Court of South Australia in Lenzi v. Miller [10] , if it proceeds on a different basis, cannot be supported. 1. [1950] 1 K.B. 544, at pp. 546-547. 2. [1967] 2 A.C. 224, at pp. 236-237. 3. [1978] 1 W.L.R. 1350; [1978] 3 All E.R. 1140. 4. [1950] 1 All E.R. 933. 5. [1950] 1 All E.R. 966. 6. [1951] 1 K.B. 814. 7. [1968] Crim. L.R. 99. 8. [1972] Crim. L.R. 544. 9. [1946] V.L.R. 53. 10. [1961] V.R. 374, at p. 377. 11. (1970) 91 W.N. (N.S.W.) 609. 12. (1968) 11 F.L.R. 458. 13. [1965] S.A.S.R. 1.

The application of the proposition to the offence created by s. 52A does not require that the applicant be shown to have any knowledge or intention concerning the impact with a motor vehicle or the occasioning of death or grievous bodily injury even though these matters must be proved to establish the defence. The reason is that the actions of both the principal offender and the secondary party under s. 52A are complete where the vehicle is driven in a manner dangerous to the public. The circumstance that liability attaches under the section only where that manner of driving carries certain consequences, which are the natural and probable results of such driving, does not relieve the secondary party of culpability merely because he has no knowledge of those consequences.

As we have seen, knowledge of all the essential facts giving rise to the dangerous driving is necessary to constitute commission of the offence on the part of the applicant. But it is not necessary that there should be actual knowledge of all the essential facts constituting the offence in order to establish secondary participation. It is enough if the defendant has deliberately shut his eyes to a relevant fact or has deliberately abstained from obtaining knowledge by making an inquiry for fear that he may learn the truth: cf. Reg. v. Crabbe [11] . On this aspect of the case, notwithstanding my participation in the judgment of the Court of Criminal Appeal in Reg. v. Glennan, I am now in agreement with what the Chief Justice has written, including his comments on the passage in the judgment in Reg. v. Glennan [12] . It follows that the summing up was defective to the extent that it referred to the concept of recklessness.

Ante, p. 464. 2. (1970) 91 W.N. (N.S.W.), at p. 614.

Further arguments for the applicant relate broadly to the manner in which the collision occurred. The evidence established that as the vehicle careered down the steep gradient along Mt. Ousley Road following the failure of its brakes, the driver of another truck interposed his vehicle in front of it in an attempt to stop or slow it down. When the vehicle collided with the truck Renshaw lost his ability to steer. It was several seconds after this and some 200 metres further down the road that the vehicle collided with the two other vehicles as a result of which the deaths and injury occurred. In these circumstances, it is argued that there was a novus actus interveniens or alternatively that the vehicle was not being driven, either by Renshaw or in a manner dangerous to the public, at the time of impact with those vehicles.

The argument that there was a novus actus interveniens is in substance an argument that the deaths and harm occasioned were not attributable to the manner in which the vehicle was driven within the meaning of s. 52A(3). The sub-section requires only that the defence establish on the balance of probabilities the absence of any causal connection between the deaths and harm and the manner in which the vehicle was being driven: Reg. v. Windle [13] . It is a question of fact and degree and one which was properly left to the jury.

The question of whether the vehicle was being driven by Renshaw or in a manner dangerous to the public at the time of impact is also one of fact and degree. A vehicle which becomes uncontrollable as a consequence of a dangerous manner of driving does not necessarily cease to be driven or to be driven in that manner because the driver is unable to steer it. In McBride v. The Queen [14] , Barwick C.J. said:

In some circumstances it may not be enough that the impact is the result of the vehicle having been driven at some earlier point of time in breach of the section. In other circumstances, the interval of time between the driving which is in breach of the section and the impact may be so short that the offending driving can be regarded as persisting to the moment of impact. It was clearly open to the jury to conclude that the offending driving in this case persisted to the moment of impact. 1. (1966) 115 C.L.R. 44, at p. 47.

The final argument for the applicant, which attacks the answer given by the trial judge to a question by the foreman of the jury on the issue of causation, is without substance. The foreman of the jury asked the following question:

Does a causal connection have to be established between

(a) the driving in a manner dangerous (first section of the charge); and

(b) "when through impact with a certain other vehicle" (another section of the charge)?

His Honour replied: The position is that the death, or the grievous bodily harm must be occasioned to a person in a motor vehicle through the impact, that is caused by the impact, and the second thing is that impact must occur at a time when the vehicle is being driven in a manner dangerous to the public. I can see no error in this reply.

However, having regard to my agreement with the Chief Justice as to the inadequacy of the instruction given to the jury on the question of knowledge, this being an important question in the law of criminal complicity, I would grant special leave to appeal, allow the appeal, quash the conviction and order a new trial.

The appellant was convicted upon six counts of culpable driving under s. 52A of the Crimes Act 1900 N.S.W.. The charges arose from a series of collisions between a prime mover and semi-trailer owned or leased by the appellant and a number of motor cars in one of which a family of five persons were killed and in another of which the driver sustained grievous bodily harm. The appellant's motor vehicle was at the time of the accident driven by a man named Renshaw and the appellant, who was not present at the accident, was charged with culpable driving in reliance upon s. 351 of the Crimes Act, which provides:

Any person who aids, abets, counsels, or procures, the commission of any misdemeanour, whether the same is a misdemeanour at Common Law or by any statute, may be indicted, convicted, and punished as a principal offender. The counts contained in the indictment charged the appellant with driving a motor vehicle in a manner dangerous to the public when through impact of the said motor vehicle with a certain other motor vehicle, a death, in the case of five counts, and grievous bodily harm, in the case of the sixth count, was occasioned.

Where s. 351 is applicable, it permits the indictment to be framed in this way, but it is an undesirable practice because it does not make clear the real nature of the case against the accused. The Crown in this case did not allege that the appellant himself drove the vehicle, but that he aided, abetted, counselled or procured the driving of the vehicle in the circumstances alleged. 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: see Reg. v. Maxwell [15] .

The Crown case against the appellant was that he procured the commission by Renshaw of the offences of culpable driving by sending him on to the road in a vehicle with defective brakes on the date on which the accident happened, which was 18 May 1979.

The evidence was clearly sufficient to establish that Renshaw was driving the appellant's prime mover and semi-trailer for him on 18 May 1979 and that on that day the vehicle's brakes were grossly defective. Although causation was no necessary part of the Crown's proof (absence of causation nevertheless providing a defence: s. 52A(3)), the evidence also established that it was the failure of the vehicle's brakes which caused the accident in which five persons were killed and one suffered serious injury. There was evidence upon which the jury could find that the appellant knew of the defective condition of the brakes, although it was a real question whether he did in fact have that knowledge.

The evidence revealed that the appellant used to own a garage and was a mechanic. He attended to the maintenance of the vehicle and carried out repairs on it. When Renshaw noticed any mechanical defects in the vehicle he told the appellant of them. On the weekend of 5 and 6 May 1979, the appellant, together with Renshaw and another man, did some work on the vehicle, including work on its braking system. At the same time, they replaced an oil seal on the brakes and adjusted them. A week or two before the accident, the appellant and Renshaw changed some of the tyres on the vehicle. On 18 May 1979, the day of the accident, Renshaw telephoned the appellant and told him there was an oil leak from one of the wheels of the prime mover. Upon inspection of the vehicle after the accident, apart from the many less obvious defects, it was apparent that the offside front leading shoe on the trailer had been wired back to the back plate to prevent the shoe from dragging on the inside surface of the brake drum.

Section 52A of the Crimes Act, under the heading "Culpable driving", provides:

(1) Where the death of, or grievous bodily harm to, any person is occasioned through -

and the motor vehicle was at the time of the impact, or at the time of overturning or leaving the highway, being driven by another person -

(e) under the influence of intoxicating liquor or of a drug; or

(f) at a speed or in a manner dangerous to the public,

the person who was so driving the motor vehicle shall be guilty of the misdemeanour of culpable driving.

(3) It shall be a defence to any charge under this section that the death or the grievous bodily harm occasioned, as the case may be, was not in any way attributable to the fact that the person charged was under the influence of intoxicating liquor or of a drug or, as the case may be, to the speed at which or the manner in which the vehicle was driven.

The manner in which a vehicle may be driven includes its mechanical condition and if that condition is defective, it may, by reason of that fact, be driven in a manner dangerous to the public: see R. v. Coventry [16] ; Reg. v. Spurge [17] ; Reg. v. Robert Millar (Contractors) Ltd. [18] . The offence created by s. 52A does not require the prosecution to prove any state of mind on the part of the driver, although his act of driving must be conscious and voluntary and he may have a defence of mistake of fact on reasonable grounds: R. v. Coventry [19] . It is unnecessary to pursue in this case whether the driver must establish such a defence or whether the effect of his raising it is to cast upon the Crown the ultimate burden of disproving it beyond reasonable doubt. It is sufficient to observe that the defence is available. Otherwise the mental state of the driver is irrelevant, for the section imports an objective standard by which his driving is to be judged.

(1938) 59 C.L.R. 633, esp. at p. 639. 2. [1961] 2 Q.B. 205. 3. [1970] 2 Q.B. 54. 4. (1938) 59 C.L.R., at p. 638.

No question was, however, raised in this case that the actions of Renshaw were other than conscious and voluntary and no reliance appears to have been placed upon any exculpatory belief which may have been entertained by him. The accident occurred when the brakes failed on the appellant's vehicle and it careered down a steep descent unable to slow down or stop. Seconds before the accident, the vehicle collided with another truck which had been intentionally placed in its path in an effort to avoid the collisions which nevertheless ensued. Renshaw gave evidence that, after colliding with the other truck, the steering mechanism of the appellant's vehicle failed and he lost control of it. Thereafter, the vehicle veered on to the wrong side of the road and collided with other vehicles, including those in which the five people died and the sixth was injured. The question was raised whether Renshaw was driving the appellant's vehicle at the time of the impact with the latter vehicles, having regard to the collision with the other truck and his loss of control, but, as Barwick C.J. pointed out in McBride v. The Queen [20] , " the interval of time between the driving which is in breach of the section and the impact may be so short that the offending driving can be regarded as persisting to the moment of impact". It was a question for the jury and the learned trial judge drew their attention to it in clear terms. There was evidence upon which the jury could find that Renshaw was still driving the appellant's vehicle at the time of the two impacts in question and it is clear that they did so find.

It is necessary, therefore, to proceed upon the basis that the offences of culpable driving were committed by Renshaw. It is those offences which the appellant was alleged to have aided, abetted, counselled or procured. To have done so he must have intentionally participated in the principal offences and so must have had knowledge of the essential matters which went to make up the offences of culpable driving on the occasion in question, whether or not he knew that those matters amounted to a crime: see Johnson v. Youden [21] ; Reg. v. Churchill [22] . As Viscount Dilhorne put it in Reg. v. Maxwell [23] , " it is clear that a person cannot properly be convicted of aiding and abetting in the commission of acts which he does not know may be or are intended": see also Abley v. Crosaro [24] ; Blackmore v. Linton [25] ; Dennis v. Pight [26] . The requirement of intention on the part of an aider, abettor, counsellor or procurer or, if we may use the term, a secondary participant in a crime, is a requirement at common law and it is a requirement which is not affected by s. 351 of the Crimes Act. That section merely restates the common law by providing, in effect, that in proceeding against a secondary participant in a misdemeanour, no distinction is to be drawn between the principal offender and the secondary participant: see Du Cros v. Lambourne [27] ; Gould & Co. v. Houghton [28] ; Carter Patersons & Pickfords Carriers Ltd. v. Wessel [29] ; Richards v. McPherson [30] ; Ex parte Coorey [31] . Whilst in the case of felonies, separate offences are committed by principals in the second degree (aiders and abettors) and accessories before the fact (counsellors and procurers), a person who aids, abets, counsels or procures the commission of a misdemeanour may at common law be proceeded against as a principal because " it is not worth while to regard inferior criminals through a microscope, or to classify them scientifically, as felons were treated when most felonies were capital offences so far as the principals were concerned": see Gould & Co. v. Houghton [32] , per Darling J. It is the common law position which s. 351 of the Crimes Act expresses and in so doing it does not exclude a guilty mind as a necessary ingredient of secondary participation in the commission of a misdemeanour.

[1950] 1 K.B. 544, at p. 546. 2. [1967] 2 A.C. 224. 3. [1978] 1 W.L.R., at p. 1355; [1978] 3 All E.R., at p. 1144. 4. [1946] V.L.R. 53. 5. [1961] V.R. 374. 6. (1968) 11 F.L.R. 458. 7. [1907] 1 K.B. 40. 8. [1921] 1 K.B. 509. 9. [1947] K.B. 849, at p. 852. 10. [1943] V.L.R. 44. 11. (1944) 45 S.R. (N.S.W.) 287, at p. 295. 12. [1921] 1 K.B., at p. 520.

We have mentioned at the outset the requirement of intent on the part of a secondary participant, because, in each count, the principal offence, culpable driving, is, in the sense in which we have explained it, an offence involving strict liability: the prosecution is not required to prove any mental state on the part of the driver. That does not, however, relieve the prosecution of the burden of proving intention on the part of a secondary participant and it is this consideration which we think lies behind a submission that the offence of culpable driving created by s. 52A of the Crimes Act is of such a nature as to preclude secondary participation in it with the result that the application of s. 351 is excluded. The application of that section may be excluded by necessary implication (see Mallan v. Lee [33] , per Dixon J.; Morris v. Tolman [34] ; Ellis v. Guerin [35] ) and it would be excluded if it appeared that the offence of culpable driving created by the legislature was intended to apply only to the driver of the vehicle involved and not to a secondary participant. The mere absence in the section of any reference to secondary participation does not, however, show any intention to exclude it: see Hale's Pleas of the Crown (1800), vol. 1, p. 704; R. v. Potts [36] .

(1949) 80 C.L.R. 198, at p. 216. 2. [1923] 1 K.B. 166. 3. [1925] S.A.S.R. 282. 4. (1818) Russ. & Ry. 353 [ 168 E.R. 841].

There is no difficulty in the proposition that a person may intentionally aid, abet, counsel or procure the driving of a vehicle in a particular manner or whilst the driver is in a particular state. Thus there may be secondary participation in the offence of driving in a manner dangerous to the public or of driving whilst under the influence of intoxicating liquor or of a drug. Those offences are created by s. 4(1) and s. 5(2) of the Motor Traffic Act 1909 N.S.W.. But the offence of culpable driving is something more than those offences. It includes the acts necessary to constitute those offences but requires in addition that the driving should be attended by death or grievous bodily harm occasioned through impact with the vehicle being driven. Although it is clear that a person may intend to aid, abet, counsel or procure the driving of a vehicle in a dangerous manner or whilst the driver is under the influence of intoxicating liquor, it is not to be expected, except, perhaps, in rare instances, that in so doing he would intend that there should be an impact occasioning death or grievous bodily harm. So it is said, as we understand the submission, that whilst the driver of the vehicle may be guilty of culpable driving because the offence does not involve any mental state on his part, he cannot be aided, abetted, counselled or procured to commit the offence because that would require on the part of the secondary participant an intention which encompassed the occurrence of death or grievous bodily harm. It may be enough to answer the submission to point to the rare instances - intentionally encouraging a driver to drive in the face of oncoming traffic, for example - where the intent of the secondary participant may be said to extend to an impact occasioning death or grievous bodily harm, but the real answer lies elsewhere.

Before the introduction of the offence of culpable driving, motorists who caused death in the course of committing unlawful acts on the roads were charged with manslaughter. Although the manslaughter charged was involuntary manslaughter, juries were nevertheless reluctant to convict and the less grave offence of culpable driving was conceived: see Attorney-General (N.S.W.) v. Bindoff [37] . As with involuntary manslaughter, culpable driving does not require that the death, if it is a case involving death, should be intended. It is merely a consequence which serves to convert what would otherwise amount to one offence - driving in a manner dangerous to the public, for instance - into another and more serious offence. The same may be said of grievous bodily harm if it is a case of grievous bodily harm. Just as an unintended death may convert a crime such as an assault into involuntary manslaughter, so death or grievous bodily harm may convert a lesser driving offence into culpable driving, even if the death or grievous bodily harm is unintended.

At one time there may have been some basis for the proposition that no offence is known to the law of being an accessory before the fact to involuntary manslaughter: see Hale's Pleas of the Crown (1800), vol. 1, p. 436. The proposition is based upon the notion that a man cannot counsel or procure what he does not intend and he cannot intend an accidental killing. But in Blackstone's Commentaries, 21st ed. (1844), vol. 4, pp. 36-37, it was said:

And it is also settled, that whoever procureth a felony to be committed, though it be by the intervention of a third person, is an accessory before the fact. It is likewise a rule, that he who in any wise commands or counsels another to commit an unlawful act, is accessory to all that ensues upon that unlawful act; but is not accessory to any act distinct from the other. And Bramwell B. in Reg. v. Gaylor [38] apparently thought that there was only one answer to the question: Suppose a man, for mischief, gives another a strong dose of medicine, not intending any further injury than causing him to be sick and uncomfortable, and death ensues, would not that be manslaughter? Suppose, then, another had counselled him to do it, would not he who counselled be an accessory before the fact? See also Reg. v. Taylor [39] ; Reg. v. Buck and Buck [40] . 1. (1857) Dears. & Bell 288, at p. 291 [ 169 E.R. 1011, at p. 1012]. 2. (1875) 13 Cox C.C. 68. 3. (1960) 44 Cr. App. R. 213.

In Reg. v. Creamer [41] , the Court of Criminal Appeal reviewed the authorities and expressed the law to be as follows:

A man is guilty of involuntary manslaughter when he intends an unlawful act and one likely to do harm to the person and death results which was neither foreseen nor intended. It is the accident of death resulting which makes him guilty of manslaughter as opposed to some lesser offence such as assault, or, in the present case, abortion. This can no doubt be said to be illogical, since the culpability is the same, but nevertheless, it is an illogicality which runs throughout the whole of our law, both the common law and the statute law. A comparatively recent example is clearly that of dangerous driving and causing death by dangerous driving. Bearing that in mind, it is quite consistent that a man who has counselled and procured such an illegal and dangerous act from which death, unintended, results should be guilty of being accessory before the fact to manslaughter. 1. [1966] 1 Q.B. 72, at p. 82.

That seems to us to be an accurate statement of the law and it follows that, although a person cannot aid, abet, counsel or procure the commission of an offence, even a statutory offence involving strict liability, without intent based upon knowledge of the essential facts which constitute the offence, the requisite intent and knowledge do not, in the case of culpable driving, extend to the occurrence of the death or grievous bodily harm which "ensues upon" the unlawful act the commission of which was aided, abetted, counselled or procured. The application of s. 351 of the Crimes Act to the offence of culpable driving is not, therefore, excluded by necessary implication: cf. Reg. v. Robert Millar (Contractors) Ltd. [42] .

The second main submission made on behalf of the appellant was that the learned trial judge misdirected the jury in charging them that it was sufficient to establish intent on the part of the accused if his vehicle was being driven by Renshaw with defective brakes and the applicant " ought to have known of the defect by the exercise of his reasonable care and diligence, that the accused knew or ought to have known by the exercise of reasonable care and diligence of the danger thereby to the public, and that the accused either ignored it or knowingly took such negligent measures to cope with it to make his conduct in employing the driver so to drive in a manner dangerous to the public". Elsewhere in the charge the learned trial judge referred to the possibility of "imputed knowledge" or "presumed knowledge" of the applicant of the defective state of his vehicle's brakes and finally in a re-direction he qualified his former remarks by saying:

I qualify that by limiting the words, "Ought to have known by the exercise of reasonable care and diligence" by saying that a mere failure to make an inquiry which would yield knowledge of an essential fact is not in itself sufficient, for to act negligently does not make a person an aider or abettor. The prosecution for its part must show that he knew on 18 May that the brakes were defective and could constitute the driving of the vehicle to be driving in a manner dangerous to the public or on 18 May he acted so recklessly not caring whether these facts existed or not.

In giving these directions, the trial judge no doubt had in mind the judgment of the New South Wales Court of Criminal Appeal in Reg. v. Glennan [43] in which the following passage appears:

It may, therefore, be concluded that, in the case of statutory offences in which intention is not a necessary element, the law does not require actual knowledge on the part of the aider and abettor of all the essential facts of the offence. The element of knowledge or intention required of an aider and abettor might perhaps be more accurately expressed by saying that it must be shown that he either knew or suspected the existence of facts which would constitute the commission of the offence or, perhaps, that he acted recklessly, not caring whether the facts existed or not. Mere failure to make an inquiry which, if made, would yield knowledge of an essential fact, is not in itself enough to constitute knowledge of the fact, for it is accepted that to act negligently does not make a person an aider and abettor . But the circumstances of a given case may be such as to reveal not merely a failure to make an inquiry, but a failure to make an inquiry which is of such a kind as to suggest that the defendant has deliberately abstained from acquiring knowledge because he suspected the existence of a fact which would have been ascertained on inquiry, or that the defendant has acted recklessly in the sense that he did not care whether the facts existed or not (Carter v. Mace [44] ; cf. Davies, Turner & Co. Ltd. v. Brodie [45] .) 1. (1970) 91 W.N. (N.S.W.) 609, at p. 614. 2. [1949] 2 All E.R. 714. 3. [1954] 1 W.L.R. 1364; [1954] 3 All E.R. 283.

A number of things might be said about that passage. In the first place, there is no basis upon which it can be said that where a statutory offence requires no proof of intent, it is unnecessary in order to establish secondary participation in the commission of that offence to prove actual knowledge of all the essential facts of the offence. Intent is an ingredient of the offence of aiding and abetting or counselling and procuring and knowledge of the essential facts of the principal offence is necessary before there can be intent. It is actual knowledge which is required and the law does not presume knowledge or impute it to an accused person where possession of knowledge is necessary for the formation of a criminal intent. Secondly, although it may be a proper inference from the fact that a person has deliberately abstained from making an inquiry about some matter that he knew of it and, perhaps, that he refrained from inquiry so that he could deny knowledge, it is nevertheless actual knowledge which must be proved and not knowledge which is imputed or presumed.

The third question raised by the passage which we have cited from Reg. v. Glennan is whether it is possible to aid, abet, counsel or procure the commission of an offence by acting recklessly. 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. The necessary intent is absent if the person alleged to be a secondary participant lacks knowledge that the principal offender is doing something or is about to do something which amounts to an offence. We have already referred to Johnson v. Youden [46] and the other cases in which this point is made clearly. The same point was expressed differently but with equal clarity by Lord Goddard C.J. in Thomas v. Lindop [47] , where he said:

More than once this Court has pointed out that it is impossible to convict persons of aiding and abetting the commission of an offence unless they know the facts which must be proved to show that an offence has been committed . It is, of course, not necessary to show that the person knew that it was an offence, because he cannot plead ignorance of the law, but where anyone is charged with aiding and abetting a person to commit an offence, it must, at least, be shown that he knew what that person was doing. A person who does not know of the acts which another person is doing cannot be charged with aiding and abetting him because he does not know that he is doing acts which amount to an offence. There are, of course, those cases which hold that the requisite knowledge need not extend to the precise crime which is in fact committed, although some crime must be in contemplation at the time secondary participation is alleged to occur, a general criminal purpose being insufficient: see R. v. Lomas [48] ; Reg. v. Bullock [49] ; Reg. v. Bainbridge [50] ; Reg. v. Maxwell [51] . The questions which these cases raise do not arise in this case and it is unnecessary to do more than refer to them. 1. [1950] 1 K.B. 544. 2. [1950] 1 All E.R. 966, at p. 968. 3. (1913) 9 Cr. App. R. 220. 4. [1955] 1 W.L.R. 1; [1955] 1 All E.R. 15. 5. [1960] 1 K.B. 129. 6. [1978] 1 W.L.R. 1350; [1978] 3 All E.R. 1140.

In this case, the Crown contends that the appellant procured the commission of the offences of culpable driving by Renshaw by sending him on to the road in a vehicle with defective brakes. It contends that, even if the appellant had no knowledge of the state of the vehicle's brakes, it was sufficient that he acted recklessly in doing what he did. The precise nature of the recklessness relied upon is not entirely clear and it is understandable that it occasioned the learned trial judge some difficulty in attempting to explain it to the jury. It cannot have been inadvertent carelessness, however gross, for it can hardly be suggested that a person can accidentally become a secondary participant in the commission of a crime. The recklessness contemplated must have involved some foresight on the part of the appellant that the driving of the vehicle on the road would probably (or possibly - it was not made clear which) be dangerous, because of the defective condition of the brakes. In effect, that would mean, if the Crown were correct, that it would have proved a sufficient intent on the part of the appellant in all the circumstances if it established that he knew that the brakes on the vehicle were probably (or possibly) defective.

For the purposes of many offences it may be true to say that if an act is done with foresight of its probable consequences, there is sufficient intent in law even if such intent may more properly be described as a form of recklessness. There are, however, offences in which it is not possible to speak of recklessness as constituting a sufficient intent. Attempt is one and conspiracy is another. And we think the offences of aiding and abetting and counselling and procuring are others. Those offences require intentional participation in a crime by lending assistance or encouragement. They do not, of course, require knowledge of the law and it is necessary to distinguish between knowledge of or belief in the existence of facts which constitute a criminal offence and knowledge or belief that those facts are made a criminal offence under the law. The necessary intent is absent if the person alleged to be a secondary participant does not know or believe that what he is assisting or encouraging is something which goes to make up the facts which constitute the commission of the relevant criminal offence. He need not recognize the criminal offence as such, but his participation must be intentionally aimed at the commission of the acts which constitute it. It is not sufficient if his knowledge or belief extends only to the possibility or even probability that the acts which he is assisting or encouraging are such, whether he realizes it or not, as to constitute the factual ingredients of a crime. If that were sufficient, a person might be guilty of aiding, abetting, counselling or procuring the commission of an offence which formed no part of his design. Intent is required and it is an intent which must be based upon knowledge or belief of the necessary facts. To the extent that Reg. v. Glennan [52] suggests the contrary, it is not, in our view, in accordance with principle and does not correctly state the law.

The authorities relied upon in the passage which we have cited in Reg. v. Glennan [53] do not appear to us to provide adequate support for the propositions which it contains. Carter v. Mace [54] was a case in which the appellant was alleged to have aided and abetted the commission of the statutory offence of failing to comply with the conditions of a licence to carry goods. The principal offence was committed by the owner of a lorry which the appellant, who carried on the business of a transport clearing house, hired to carry goods for him. A Divisional Court held that if the appellant undertook this class of business he was bound to see that contracts were carried out in a legal manner and, having failed to do so, was guilty of aiding and abetting the commission of a statutory offence. The precise basis of the decision is difficult to discern. In Davies, Turner & Co. Ltd. v. Brodie [55] , a Divisional Court was referred to Carter v. Mace and it expressed the view that it was a decision on its own particular facts and laid down no proposition of law. In Davies, Turner & Co. Ltd. v. Brodie, the defendant was charged with aiding and abetting the commission of the offence of using a goods vehicle without the required permit. The defendant had obtained an assurance from the driver of the vehicle that he had the necessary permit. The court held that because the appellant " had no reason to suppose that the facts were present which would constitute an offence ", the offence of aiding and abetting was not made out. Lord Goddard C.J., who also presided in Carter v. Mace, said [56] :

If a person shuts his eyes to the obvious or refrains from making any inquiry where a reasonably sensible man would make inquiry, I think the court can find that he was aiding and abetting, certainly if he shuts his eyes to the obvious. The fact of exposure to the obvious may warrant the inference of knowledge. The shutting of one's eyes to the obvious is not, however, an alternative to the actual knowledge which is required as the basis of intent to aid, abet, counsel or procure. Lord Goddard appears to have recognized this by concluding his judgment [57] with the words: " that is the point: you must know the essential matters which constitute the offence". 1. (1970) 91 W.N. (N.S.W.), at p. 614. 2. [1949] 2 All E.R. 714. 3. [1954] 1 W.L.R. 1364; [1954] 3 All E.R. 253. 4. [1954] 1 W.L.R., at p. 1367; cf. [1954] 3 All E.R., at p. 286. 5. [1954] 1 W.L.R., at p. 1368; [1954] 3 All E.R., at p. 286.

The Court of Criminal Appeal in Reg. v. Glennan also referred in its judgment to Poultry World Ltd. v. Conder [58] and Bateman v. Evans [59] . In the report of Poultry World Ltd. v. Condor, a Divisional Court is said to have decided that a person could not be convicted of aiding and abetting unless he had knowledge of the facts which constitute the offence or unless he deliberately abstained from obtaining such knowledge. In the commentary upon the decision, however, it is made clear that the court took the view that the offence of aiding and abetting could not be established unless there was proof of knowledge or " such negligence as to amount to deliberate shutting of the eyes, i.e. connivance". Connivance can, of course, only be established on the basis of knowledge, whether proved directly or by inference.

[1957] Crim. L.R. 803. 2. (1964) 108 Sol. Jo. 522.

In Bateman v. Evans [60] , the defendant was convicted of aiding and abetting the commission of the offence of driving while disqualified. The defendant believed the driver's assurance that he had lodged an appeal against his disqualification and was permitted to drive. On a case stated by justices of a Divisional Court, it was held that the conviction should be quashed upon the basis " that A had a bona fide belief that B was entitled to drive, and the case fell within Davies, Turner & Co. Ltd. v. Brodie".

The passage which we have cited from Reg. v. Glennan was unnecessary for the decision in that case, which held that a person charged with aiding and abetting the offence of driving with a prescribed percentage of alcohol in the blood did not have to know the percentage in order to know all the facts which gave rise to the commission of the principal offence.

It follows that, in our view, the trial judge was wrong in directing the jury that reckless behaviour on the part of the appellant would suffice to establish the intent necessary to constitute him the procurer of the offences of culpable driving. That is sufficient to determine this case and no point is to be served in examining the terms of the direction given. Since there was evidence, not without its weaknesses, from which the jury might have inferred that the appellant knew the facts which went to make up the offence of culpable driving, there was a case to answer. The proper course is, therefore, for this Court to grant special leave, allow the appeal, quash the conviction and order a new trial.

However, there are some special features of this case which should, perhaps, be mentioned. These proceedings against the appellant have been pending since May 1979. There have been two trials, two appeals to the Court of Criminal Appeal and an application for special leave to this Court. The appellant is a man of some fifty-eight years of age who, as the Court of Criminal Appeal said, " came before the Court as a man of good character who had led a very hard-working and enterprising life in this country". On 17 September 1982, he was sentenced by the trial judge to concurrent periods of imprisonment of five years each on the first five counts and three years on the sixth count. A non-parole period of two years was specified. On 30 May 1984, these sentences were quashed by the Court of Criminal Appeal and concurrent periods of imprisonment of two and a half years on each of the first five counts and two years on the sixth were imposed. The legislation relating to parole having changed in the meantime, the Court of Criminal Appeal specified a non-probation period of one year and three months and made a probation order for the release of the appellant at the expiration of that period. It was not suggested that the appellant was in any way responsible for the delays which have occurred and it is plain that the protracted nature of the proceedings must have subjected him to prolonged strain. No doubt these matters will be given due weight when consideration is given by the Crown to the course which should be taken.

High Court of Australia Gibbs C.J. Mason, Wilson, Deane and Dawson JJ. Giorgianni v The Queen [1985] HCA 29

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