R v Choi

1 Ju Chon Ri, the chief engineer of the Pong Su is indicted with one count, namely that "between 25 February 2003 and 16 April 2003 at Boggaley Creek in the State of Victoria and elsewhere (the accused) did contrary to paragraphs 233B(1)(b) of the Customs Act 1901 and by virtue of the operation of sub-section 11.2(1) of the Criminal Code Act 1995, aid, abet, counsel or procure the commission of an offence, namely the importation into Australia of prohibited imports to which s.233B of the Customs Act 1901 applies being narcotic goods consisting of not less than a commercial quantity of the narcotic substances heroin, which was imported into Australia at Boggaley Creek in the State of Victoria on or about the 16th day of April 2003".

2 The prosecution case against the Chief Engineer is, like the cases against each of his co-accused, a circumstantial one. The prosecution contends that the Chief Engineer aided, abetted, counselled or procured the importation of the heroin into Australia by his involvement in the voyage to Australia of the Pong Su and his knowledge of and involvement in taking on sufficient fuel for such a voyage, and by his involvement in and responsibility for the preparations to stop the ship at Boggaley Creek on 15 April 2003, his involvement in stopping the ship, his involvement in the manoeuvring of the ship to enable disembarkation of an inflatable dinghy and his involvement in the necessary engine operations of stopping, anchoring, and maintenance of position at Boggaley Creek when the ship was in an unanchored state[.]

The submission that the indictment contains latent duplicity:

3 Notwithstanding the fact that the accused chief engineer has been arraigned already, and pleaded not guilty to the charge set out above, an objection to the form of the indictment has now been raised by Mr Russell of counsel who appears for him. The particular issue raised by Mr Russell is that the allegation made in the indictment that the chief engineer aided, abetted, counselled or procured the importation of narcotics into Australia contains latent duplicity.

4 Mr Russell contends that there is a significant difference between aiding and abetting and counselling and/or procuring the importation of narcotics into Australia. In particular, he contends that for one to aid and/or abet, the presence of the aider and/or abettor at the scene of the crime is a necessary element. He contends that the fact of presence as a necessary element of aiding and/or abetting is what distinguishes such activity from other types of accessorial behaviour such as counselling or procuring. In support of this argument, Mr Russell relies upon the oft repeated words of Smith J in R v Lowery and King [No. 2[]]:

"Even if there is no prior understanding or arrangement that the crime shall be committed a person is guilty in law of a crime committed by the hand of another - another whom the law calls the principal in the first degree - if the person is present when the crime is committed and aids and abets the commission of it. In such circumstances he is called the principal in the second degree and is equally guilty of the crime with the principal in the first degree. Aiding and abetting in this connection means doing one or other of three things while aware that the crime is being committed: first intentionally helping the principal in the first degree to commit the crime, or, secondly, intentionally encouraging him by words or by your presence and behaviour to commit it, or, thirdly, intentionally conveying to him by words or by your presence and behaviour that you are assenting to and concurring in his commission of the crime. A person present at the scene of the crime and so aiding and abetting a person to commit a crime is in law a principal in the second degree and is guilty in law of the crime committed by the hand of the principal of the first degree."

5 Furthermore, Mr Russell relies upon the statement of Mason J in Giorgianni v R[3]:

"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. ... In substance, however, there appears to be no distinction between a principal in the second degree and an accessory before the fact beyond the question of presence."

6 On this basis and because there is such a distinction in terms of presence, between aiding and abetting on the one hand, and counselling and procuring on the other, Mr Russell submits that there is latent duplicity in the indictment. He illustrates this by contending that the practical result of the manner in which the indictment is framed is that some members of the jury may consider his client is guilty of aiding and abetting because of his presence at the scene of the crime, whilst others may consider that he is guilty because he counselled or procured the importation, whilst not being satisfied that he was present at the scene of the crime. Thus Mr Russell submits that the indictment, as drafted, creates more than one offence. Furthermore, he submits that in circumstances where the prosecution relies upon "derivative liability of complicity", rather than the substantive offence of importation, it is required to elect whether the complicity alleged consists of aiding and abetting, or of counselling or procuring.

The submission of the Prosecution

7 The response of the prosecution is that the indictment charges a single offence of importation of narcotics and specifies the nature of the participation of the accused in the commission of that offence as being that of an accessory. In doing so it relies upon s.11.2(1) of the Criminal Code Act 1995 (C'th) ("the Code"), which the prosecution submits is merely a procedural section which creates no offence. Section 11.2 provides:

"(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."

8 Thus, it is submitted that s.11.2(1) does not create an offence but rather states that a person who aids, abets, counsels or procures the commission of an offence may be convicted as a principal as if he or she committed the offence personally. That is, he or she is guilty, not of an offence of aiding, abetting, counselling or procuring, but of the offence committed, in this case the importation of narcotics.

9 The prosecution contends that this is apparent not only by reason of the wording of s.11.2(1) of the Code, but by comparison of that section with the Victorian equivalent, being s.323 of the Crimes Act (Vic) 1958 which states:

"A person who aids, abets, counsels or procures the commission of an indictable offence may be tried, indicted or presented and punished as a principal offender." [4]

10 That the common approach of the Victorian DPP in charging an accused person with the substantive offence rather than particularising within the charge that the case is put by the prosecution on the basis of aid, abet, counsel or procure the commission of the offence, is a permissible approach is made clear by Johns v The Queen[5] and Giorgianni v The Queen.[6] It is submitted that this demonstrates, that the contention of the prosecution that s.11.2(1) of the Code creates no offence is correct.

11 In my view the argument of the prosecution that s.11.2(1) of the Code is a procedural provision and creates no offence is correct. Complicity under s.11.2(1) is not a distinct crime, but is a manner by which those who are complicit in the commission of a crime may be found guilty of committing the substantive offence. Of course such complicity is dependent upon the commission of the principal offence by another.

Is the form of the indictment duplicitious?

12 Notwithstanding the fact that it is clearly permissible to charge an accused person who is an accessory with the substantive offence, rather than allege the nature of the complicity upon which the charge is based, there are cases where courts, both in England and in Australia, have expressed the view that in some cases it is preferable to charge a secondary participant in a manner which specifies his participation in the offence as an accessory.

13 In DPP v Maxwell[7] the accused had been told by a fellow member of an illegal organisation to guide a car at night to a public house. The accused knew that he was being sent on a terrorist attack but did not know the form it would take. Driving his own car he led another car containing several men to the public house, drove slowly past and then drove home. The other car stopped opposite the public house, one of the occupants got out, ran across to the public house and threw a pipe bomb containing five pounds of explosive into the hallway. The bomb did not explode. The accused was charged with counts of having had in his possession an explosive with an intent to commit an offence. Viscount Dilhorne said:[8]

"No objection could be taken to the form of these counts as by statute aiders and abettors can be charged as principals, but the particulars to each count give no indication of the case the prosecution intended to present and which the appellant had to meet. In the particulars of the first count, he is charged with placing the bomb in the Crosskeys Inn; in the particulars to the second with having had it in his possession or under his control. The prosecution did not attempt to prove that he had placed the bomb or that he had been present when the bomb was put in the inn, nor was any attempt made to establish that at any time he had the bomb in his possession or under his control. It is desirable that the particulars of the offence should bear some relation to the realities and where, as here, it is clear that the appellant was alleged to have aided and abetted the placing of the bomb and its possession or control, it would in my opinion have been better if the particulars of the offence had made that clear."

14 Lord Hailsham expressed similar views when he said:[9]

"It will be seen that, in the above counts, the appellant was charged, as the general law permits, as a principal, but the real case against him was that, as the driver of the guide car, he was what used to be known as an accessory before the fact. Although no compliant is made about the form of the counts I agree with the view expressed by my noble and learned friend, Viscount Dilhorne, of the desirability in these cases of aiding, abetting, counselling or procuring, of drawing the particulars of offence in such a way as to disclose with greater clarity the real nature of the case the accused has to answer.

The only substantial matter to be discussed in the appeal is the degree of knowledge required before an accused can be found guilty of aiding, abetting, counselling or procuring."

15 A similar issue arose in Giorgianni v The Queen[10] where an employee of the appellant drove the appellant's truck in circumstances where the brakes were dangerously defective and the truck was involved in a fatal accident. Pursuant to s.351 of the Crimes Act (New South Wales) (the equivalent of the Code s.11.2(1) and the Victorian Crimes Act s.323) the appellant was charged with culpable driving. In a joint judgment Wilson, Deane and Dawson JJ[11] stated:

"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 he 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."

16 Subsequently, in King v The Queen[12] the High Court again considered circumstances where the prosecution had charged an accessory with the substantive offence. King and another man had been charged as joint principals with the murder of King's wife. The prosecution case was that King procured the other man to do the killing. King was convicted of murder. The other man was acquitted. Dawson J (with whom Gibbs CJ and Wilson J agreed) said:[13]

"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 ... But it is not a practice to be followed where it can be avoided. In this case it should have been possible for the Crown to have specified how it was that King was charged with the offence alleged against him."

17 In the case before me the prosecution indictment alleges that the chief engineer acted as an accessory in the commission of the offence and that he did so by aiding or abetting or counselling or procuring. That appears to me to be completely in accord with the above authorities.

18 The only issue that appears to me to arise is whether or not, taking into account the fact that I conclude, as is submitted by the prosecution, that s. 11(2)(1) of the Code creates no offence, but rather defines the liability of a person who is an accessory, the indictment is worded appropriately. At present the indictment "... charges that between 25th January 2003 and 16th April 2003 at Boggaley Creek in the State of Victoria and elsewhere (the accused) did contrary to paragraphs 233B(1)(b) of the Customs Act 1901 and by virtue of the operation of sub-section 11.2(1) of the Criminal Code Act 1995, aid, abet, counsel or procure the commission of an offence, namely the importation into Australia of prohibited imports to which s.233B of the Customs Act 1901 applies being narcotic goods consisting of not less than a commercial quantity of the narcotic substances heroin, which was imported into Australia at Boggaley Creek in the State of Victoria on or about the 16th day of April 2003".

19 It could be argued that the indictment would more accurately describe the offence alleged to have been committed if it charged the accused directly within the importation of the prohibited imports "contrary to paragraphs 233(B)(1)(b) of the Customs Act (Cth) in that he between the 25th day of February 2003 and the 16th day of April 2003 at Boggaley Creek and elsewhere, did aid, abet, counsel or procure the commission of the said offence by Ta Song Wong and by virtue of s.11.2(1) of the Criminal Code Act 1995 (Cth) is thereby taken to have committed the said offence".

20 In my view such a charge upon the indictment would comply with the Code more precisely than would the presently worded indictment. However, that said, it cannot be argued that the present wording does not specify how it is that the accused are charged with participation in the offence and it is not contended by counsel for any of the accused that the indictment is deficient in this regard.

21 Rather, the complaint made by Mr Russell is that the allegation of each of aid, abet, counsel and procure in the indictment is duplicitous. Mr Russell contends that the prosecution must elect the manner in which it puts the accessorial liability of the chief engineer. In particular, he contends that duplicity arises, because to aid and/or abet requires the presence of the accused at the time of the commission of the offence, and to counsel and/or procure does not. However, it is clear to me that although there is a difference between each of the four words they should be considered as descriptive of a single concept, as the authorities make clear.

22 In R v Russell[14] Cussen ACJ said:[15]

"Various words such as 'aiding', 'abetting', 'comforting', 'concurring', 'approbating', 'encouraging', 'consenting', 'assenting', 'countenancing' are to be found in the authorities. A principal in the second degree is sometimes defined as a person present aiding or abetting, but in this context each of these words has, as I have indicated, a wide meaning. A common dictionary meaning of 'abetting' is 'encouraging' or 'countenancing'; and this is to be remembered when the words 'aiding or abetting' alone are used. All the words above mentioned are, I think, instances of one general idea, that the person charged as a principal in the second degree is in some way linked in purpose with the person actually committing the crime, and is by his words or conduct doing something to bring about, or rendering more likely, such commission."

23 Put another way the prosecution "must prove that the accessory manifested his or her consent to the principal's actions in a manner that promoted their performance".[16]

24 It should be noted that in Giorgianni, Mason J adopted the observations of Cussen ACJ in R v Russell. He said:[17]

"In substance, however, there appears to be no distinction between a principal in the second degree and an accessory before the fact beyond the question of presence. In misdemeanour, where no attempt has been made to classify the parties to an offence, each of the four terms is employed to refer to the conduct of a secondary participant. But the terms are descriptive of a single concept. In this regard I would adopt the observation of Cussen ACJ in R v Russell[18] as being applicable to secondary participation in misdemeanour."

25 This approach is consistent with some English authority. In In Re Smith[19] Channell B stated:[20]

"It was further contended that the warrant was bad, because to 'aid, abet, counsel and procure' were distinct offences and the warrant did not state of which offence the prisoner was convicted. I do not say that 'procuring' may not relate to something different from 'aiding', but I think that one offence may be properly described by the words 'aid, abet, counsel and procure'; there may be an offence which would justify the use of all those words."

26 In Ferguson v Weaving[21] Lord Goddard CJ in delivering the judgment of the Court said:[22]

"That all these words may be used together to charge a person who is alleged to have participated in an offence otherwise than as a principal in the first degree was established by In Re Smith 3 H and N 227."

27 In Attorney-General v Able and Ors[23] Woolf J said:[24]

"Therefore, in the ordinary case, in deciding whether or not an offence has been committed, it is preferable to consider the phrase 'aids, abets, counsels or procures' as a whole."

28 This approach has been adopted in a number of Australian cases. In Giorgianni Mason J said:[25]

"In the present case, particular emphasis was placed by the Crown on the conduct of the applicant as having "procured" the misdemeanour of culpable driving by Renshaw. While it may be that in the circumstances of a particular case one term will be more closely descriptive of the conduct of a secondary part than another it is important that this not be allowed to obscure the substantial overlap of the terms at common law and the general concept which they embody."

29 Furthermore, Gibbs CJ in Giorgianni said:[26]

"When a person is charged as a secondary party with an offence against s.52A(1)(f), the prosecution has to prove that the accused aided, abetted, counselled or procured another person to drive the vehicle at a speed or in a manner dangerous to the public, but not that he aided, abetted, counselled or procured the driver to occasion the death or grievous bodily harm which must have been occasioned if the offence was committed. There can be no doubt in the present case that the applicant was rightly convicted if the evidence was such that a reasonable jury could have been satisfied that he had counselled or procured his employee to drive a truck which he knew to be dangerously defective."

30 In McDermott v The Queen, [27] the prosecution alleged that the accused had "aided, abetted, counselled and procured" the commission of the offence. King CJ said:[28]

"It was submitted by counsel for the appellant that the prosecution having alleged that the offence was committed by aiding, abetting, counselling and procuring, it was obliged to prove that all four of those aspects of secondary participation in the crime were present. The learned judge directed the jury that aiding, abetting, counselling and procuring were four alternate ways of committing the offence and that proof of any one of those ways would suffice for a conviction .. It is true, of course, as Mason J pointed out in _Giorgianni v The Queen (s_upra) at 492-3, that there is a good deal of overlapping in the meaning of those four words and that they merely express different aspects of the essential concept of secondary participation in crime. By pleading these aspects conjunctively in the particulars, the prosecution has alleged that all four aspects were present in the conduct of the appellant. It is not necessary, however, for the prosecution to prove every particular of the conduct alleged ... It is sufficient if the conduct proved within the scope of the particulars is sufficient to constitute the crime alleged. The direction given might not be adequate or even accurate in every case, but it was, in my opinion, both adequate and accurate in relation to the issues in the present case. Against the background of the evidence in the present case, conduct answering the description of any of the meanings attributed to the meanings of the terms 'aid, abet, counsel or procure' by the learned judge would constitute the appellant an accessory to the offence."

31 In Giorgianni Gibbs CJ further said: [29]

" ... it is apparent that the ordinary meanings of some at least of those words overlap and that sometimes the words are used in particular combinations or as a phrase which is to be considered as a whole."

32 Bollen J in delivering his judgment in McDermott said:[30]

"I do not think that the direction of the learned trial judge was in conflict with the remarks of Mason J. Mason J said that the words "aid", "abet", "counsel" and "procure" are "descriptive" of a single concept. He went on to describe the "single concept" by reference to some words of Cussen ACJ in R v Russell [1933] VicLawRp 7; [1933] VLR 59 at 67 ... The appellant was alleged to have done something to bring about the happening of the offence charged. By way of particularity it was alleged as a single concept, that she aided, abetted, counselled and procured the commission of the offence. As the Chief Justice says 'conduct answering the description of any of the meanings attributed to the four terms would render the appellant guilty as an accessory to the offence'. The single concept was taking part in some relevant way in the idea of, and the presenting of, "the false document". The evidence proved that the appellant did (at least) aid and abet the carrying out of the idea of presenting a false document with knowledge of what she was doing. It mattered not that conduct answering to each term taken singly was not proved. In other words I think the remarks of Mason J are persuasive authority for saying that the accessory may be linked to the offence by aiding, by abetting, by counselling or by procuring. The use of the word 'and' in the particulars to each offence charged on the information may suggest that the informant hoped to travel by each route which could possibly link the appellant to the substantive offence. But proof that one route carried the case to that linking was enough for a conviction."

33 A similar view was expressed by Lloyd J (in a case very properly brought to my attention by Mr Russell after he had completed his submissions) of Mosman Municipal Council v Waratah Village Partners Pty Ltd and Anor[31] where objection was taken to charges laid against the defendants under an Environmental Planning Act on the basis that they had aided, abetted, counselled or procured the offence referred to in the charge. In response to a submission that the prosecution was required to elect as to which form of accessorial liability was relied upon, Lloyd J held that no such election was required as the charge was not duplicitous.

34 It should be observed that the precursor to s.11.2(1) of the Code was s.5 of the Crimes Act 1914 (Cth). It is apparent from a consideration of both the Crimes Act 1914, and the Code, that the distinction between felony and misdemeanour was, and is now, unknown under Commonwealth Criminal Law and that the terminology of "principal in the first degree", "principal in the second degree" and "accessory before the fact" was not used by the courts in the construction and application of the former s.5 of the Crimes Act 1914 (Cth). Instead the courts in doing so referred to the person engaged in the secondary participation as an "accessory" or as a person who has "aided, abetted, counselled or procured".[32] The former s.5 of the Crimes Act 1914 (Cth) provided that any person who "aids abets counsels or procures", or who was "in any way directly or indirectly concerned in, or party to" the commission of a Commonwealth offence was deemed to have committed that offence. The latter phrase (i.e. providing that "any person who was knowingly concerned in" the commission of a crime was deemed to have committed the offence) was in a number of decisions treated as not adding anything to the first part of the provision relating to "aiding and abetting". It was seen as being otiose[33] and the former section has been consistently referred to as an "aiding and abetting" section.[34] The Model Criminal Code Officers' Committee Final Report of December 1992 makes it clear that the committee concluded that the formula of being "knowingly involved" in the commission of an offence added little of substance to the traditional formula of "aid, abet, counsel or procure".[35]

35 Thus the real question in the case before me is whether by his conduct it can be said the accused was complicit in aiding or abetting or counselling or procuring the importation of the heroin into Australia. It is apparent that proof beyond reasonable doubt that the accused aided or abetted, or counselled or procured the importation is sufficient to establish complicity. This is clear from Walsh v Sainsbury[36] and Mallan v Lee[37] and McDermott v R.[38] In my view, it is not necessary for a jury to be unanimous as to the precise basis of liability provided that it is agreed by the jury that liability is established as an aider, abettor, counsellor or procurer.

36 In such circumstances I am satisfied that the indictment does not contain duplicity by alleging that the accused chief engineer aided, abetted, counselled or procured the importation of heroin into Australia.

Is presence necessary to prove that a person has aided and/or abetted the commission of an offence?

37 I turn now to the submission made by Mr Russell that if the prosecution is to rely upon aiding and abetting as a basis for accessorial liability it must prove that the chief engineer was present at the time of the commission of the offence. Mr Russell submits that presence means "in the vicinity of the crime and able to aid or encourage its commission".

38 There can be no doubt that there are numerous cases from which it could be concluded that presence is necessary to establish that a person has aided and/or abetted the commission of a crime whereas to establish that a person has counselled or procured the commission of such a crime does not require presence. For instance in Ferguson v Weaving[39], Lord Goddard LCJ said:[40]

"It is well known that the words 'aid and abet' are apt to describe the action of a person who is present at the time of the commission of an offence and takes some part therein. He is then described as an 'aider and abettor'. The words 'counsel and procure' are appropriate to a person who, though not present at the commission of the offence, is an accessory before the fact. That all these words may be used together to charge a person who is alleged to have participated in an offence otherwise than as a principal in the first degree was established by Re Smith 3 H and N 227."

39 In general in the past at common law there have been four recognised categories of criminal responsibility embraced by the concept of complicity, the first being the principal "in the first degree" usually being present at the scene and committing the criminal act. The remaining categories attract liability on the basis of derivative responsibility as "secondary" parties. Generally they have been characterised as accessories before the fact, principals in the second degree and accessories after the fact. As is made clear above, those who counsel or procure the commission of an offence would, in general, have been considered to be accessories before the fact. Those who are present during the commission of a crime and whilst being aware of the fact that the commission of the crime is to be, or is being committed, intentionally help the principal to commit the crime, or intentionally encourage by words or by their presence the commission of the crime have generally been described as aiders and/or abettors and fall into the category of principals in the second degree.

40 However, the issue of whether actual presence is required to establish that a person has aided and abetted the commission of a crime is vexed. A useful article written by J.C. Smith in 1978[41] considers the distinction between aiding and abetting on the one hand and counselling and procuring on the other and suggests that because of the technical connotations of the four words in question, their use should be abandoned in favour of words such as "assist, encourage or cause" and furthermore that it should be made clear that presence at the commission of the offence has no significance in law, though it might be evidence of secondary participation.

41 Unfortunately, at least in my view, those responsible for the drafting of the criminal code did not take the opportunity for the sensible reform suggested by J.C. Smith. Such a sensible reform would, (again in my view), assist juries (and judges) in understanding the types of conduct giving rise to accessorial liability rather than does the "arcane terminology of Victorian statutes".[42]

42 It should be noted that there have been different approaches to the requirement of presence in the "aiding and abetting" provisions of the "Code States" of Queensland, Western Australia and Tasmania, where a statutory doctrine of complicity exists. Notwithstanding that the courts in the Code States, and the High Court in consideration of their respective Codes, have generally assumed a close concurrence between common law principles and the Code doctrines of complicity, Gillies contends as follows:[43]

"The approach of the courts would seem to be that a person is to be regarded as an aider and abettor, rather than a counsellor-cum-procurer, or vice versa, according to the nature of the act of complicity performed by him. Thus, a person who takes the initiative and inspires another to commit a crime is clearly a counsellor or procurer or instigator - these terms being more apt to describe the accessories' activity than 'aid' or 'abet'. Similarly, 'counsel' is appropriately applied to one who offers moral encouragement to the principal offender. The terms 'aid' or 'abet' would most naturally be applied to the person who performs a subsidiary act of facilitation and distinct from one of instigation or moral encouragement, whether or not he is present at the commission of the crime."

43 One example of this may be found in the construction of s. 7 of the Criminal Code Act 1899 (Qld). That section does not use the word "abet" but does provide that those who "aid" another in committing an offence may be charged with committing the principal offence. The Queensland courts have consistently affirmed that the common law concept of presence, which separates accessories between aiders and procurers, is irrelevant to the application of the Code principles. In R v Ancuta[44] the Court of Criminal Appeal dismissed an appeal from a person who had been convicted of aiding the commission of an offence by the provision of false number plates to the principal who a month later used them by attaching them to a stolen car. The Court held that under the provisions of the Queensland Code, what was required for conviction was knowledge by the accomplice of the intention of the principal to commit an offence of the type which was committed, and conduct of the accomplice with that knowledge to assist in the commission of the offence. The Court applied R v Bainbridge.[45] The issue of presence did not arise.[46]

44 Nevertheless, it does seem to be apparent that by using the words "aids, abets, counsels or procures the commission of an offence", the intention of s.11.2(1) of the Code is that the common law approach to those concepts of complicity is to be generally followed. Those who drafted the Code did not adopt the drafting of the relevant provisions of the Queensland, Western Australian and Tasmanian criminal codes. So, in that circumstance must the prosecution prove the presence of the accused at the time of the commission of the offence in order to establish that he aided and/or abetted the commission of such offence? As stated by me in Ruling No. 13 handed down in this proceeding[47] clear authority can be found for the proposition that actual presence is not so required. In Thambier v R[48] Lord Pearce in delivering the judgment of the Privy Council said:

"One man may abet another by helping to set the stage even before the victim has been found. If a man helps another in preparation for crimes of a certain nature with the intention that the other shall commit crimes of that nature he may abet those crimes when they come to be committed."

45 Likewise in National Coal Board v Gamble[49] it was determined clearly that aiding and abetting the commission of an offence could take place without the presence of the accused. Slade J said:[50]

"Before a person can be convicted of aiding and abetting the commission of an offence the prosecution must prove: (a) that he knew the essential matters which constituted the offence ... and (b) that with such knowledge he assisted or at least encouraged the principal offender to commit the offence."

46 The 2005 edition of Archbold[51] in relation to this issue states as follows:[52]

"When the law relating to principals and accessories as such is under consideration there is only one crime, although there may be more than one person criminally liable in respect of it ... Those liable may be categorised as either principals or secondary parties. Secondary parties are those who either aid, abet, counsel or procure the party who most immediately causes the actus reus of the crime. Some overlap may be discerned between the various categories. Furthermore, it should be borne in mind, when reading some of the older authorities, that at common law, in relation to felonies, a person who most immediately caused the actus reus of the crime was referred to as a 'principal in the first degree', a secondary party who participated at the time when the felony was actually perpetrated was referred to as a 'principal in the second degree' and a person who participated at some earlier time was 'an accessory before the fact'."

47 In relation to the words "aid, abet, counsel or procure" Archbold states further:[53]

"The courts have tended to construe these words so as to coincide with the common law in relation to felonies; thus aiders and abettors have been equated with principals in the second degree, and counsellors and procurers with accessories before the fact ... This is unsatisfactory because it produces results which do not reflect the natural meaning of the words. It is submitted that the better approach is to give the words their natural meaning; thus an aider and abettor may be present giving active assistance to the principal; he may be some distance away, (as in the case of a lookout who watches the household whilst the principal, with whom he is in contact via mobile telephone burgles a house); or his act of assistance could be far removed in time and place (as in the case of the supplier of a gun who knows that it is required for the purpose of committing murder). Counselling and procuring inevitably takes place before the offence itself, but it need not be long before and there is no reason why the counsellor and procurer should not be present (although this is unlikely)."

48 Archbold[54] refers to National Coal Board v Gamble[55] and Thambiah v R[56] in stating that "the words 'aiding and abetting' have been used in a wider sense, so as to include acts committed before the perpetration of the actus reus. In Blakely v DPP[57] McCullough J said:[58]

"That there are many accessories before the fact whose activity none of the words 'counselling, procuring and commanding' would seem to be apt; for example, the man who supplies the equipment for use in a robbery which has already been determined upon by others and at which he will not be present. The words 'aiding and abetting' would seem more appropriate to describe such activity." "

49 Australian examples might be found. In Chief Executive Officer of Customs v Camile Trading and ors[59] Studdert J said:[60]

"There is no general principle that a person cannot aid and abet by what is done by him prior to the commission of an offence by the principal; indeed the contrary is illustrated by cases such as Johns v The Queen [1980] HCA 3; (1980) 143 CLR 108 and Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473."

50 In Johns v The Queen,[61] Stephen J said:[62]

"The relative positions of accessories before the fact and of principals of both degrees may, as a broad generalization, be summarised in the words of Glanville Williams ... where he says: 'The distinction between principals in the first and in the second degree, and between principals and accessories, generally has no legal importance."

51 If that is so then the distinction which once existed between felonies and misdemeanours, where in the instance of felonies there was a distinction between persons not present at the crime, who were regarded as accessories before the fact and those present, as principals in the second degree is of no relevance. This issue was referred to by Gibbs CJ in Giorgianni[63] when he said:

"Although it was said, in Attorney-General's Reference (No. 1 of 1975) (1975 QB 773 at 779) that there is a difference between the four words (aids, abets, counsels, procures) used in the section, and that each word must be given its ordinary meaning, it is apparent that the ordinary meanings of some at least of those words overlap and that sometimes the words are used in particular combinations or as a phrase which is to be considered as a whole: ... When used in relation to felonies, the words 'aid and abet' described the action of a person who was present at the commission of the offence and took some part therein (who was called a principal in the second degree as well as an 'aider and abettor'), whereas 'counsel and procure' describe an accessory before the fact who was not present at the commission of the offence ... The usage was not always uniform or discriminating. The distinction between principals in the first and second degree and between principals and accessories now generally has no legal importance. ... No similar distinction was drawn in the case of misdemeanours, and at common law, in cases of misdemeanour, anyone who, in the case of a felony, would have been a principal in the second degree, or an accessory, was a principal offender and was treated as if he had taken the same part as the active perpetrator of the facts constituting the offence ... The reason for mentioning those matters, which are now largely of historical interest, is that statements in the authorities regarding the mental state necessary to constitute a person an accessory before the fact in the case of a felony will apply equally to a person who has counselled or procured the commission of a misdemeanour. Further, it will be found that statements which refer to the knowledge and intention necessary to make a person an aider and abettor will often be equally applicable to a person who has counselled or procured the commission of the offence."

52 In the same case Mason J referred to the previous distinction between principals in the second degree and accessories before the fact.[64]

"In misdemeanour, as distinct from felony, a person who aids, abets, counsels or procures the commission of an offence, and who may for convenience be called a secondary party, is regarded for all purposes of procedure as a principal offender. The reason is that the common law has not seen fit to 'descend to distinguish the different shades of guilt in petty misdemeanours' ... Consequently, a secondary party to a misdemeanour may be convicted on an information or indictment which charges him with having committed the offence as principal ... It is essential to conviction on the basis of secondary participation, however, both (a) that the person charged aids, abets, counsels or procures the commission of the misdemeanour and (b) that the misdemeanour is actually committed. ..."

53 Later in the same judgment his Honour said:[65]

"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: ... In substance, however, there appears to be no distinction between a principal in the second degree and an accessory before the fact beyond the question of presence. In misdemeanour, where no attempt has been made to classify the parties to an offence, each of the four terms is employed to refer to the conduct of a secondary participant. But the terms are descriptive of a single concept."

54 More recently there has been further discussion by the High Court in relation to the distinction between secondary participants. In Osland v The Queen,[66] McHugh J said:[67]

"At common law, a person who commits the acts which form the whole or part of the actus reus of the crime is known as a 'principal in the first degree'. There can be more than one principal in the first degree. However, a person may incur criminal liability not only for his or her own acts that constitute the whole or part of the actus reus of a crime but also for the acts of others that do so. The liability may be primary or derivative. In earlier times, when it was alleged that a person should be held criminally liable for the acts of another, it mattered whether the crime was a felony or a misdemeanour. In Victoria, the distinction between felonies and misdemeanours has been abolished. There is no longer any need to draw distinction between the two categories of crime."

55 Furthermore, in Osland v The Queen, Callinan J said as follows:[68]

"In my opinion, in a case of this kind, a case of actual participation in all phases of the crime it was not necessary nor is it necessary to resort to the shifting and often inconsistent decisions of other courts over the years in which the distinction between principals and accessories in various degrees has been drawn. The history of the distinctions is fully discussed in Smith's Modern Treatise on the Law of Criminal Complicity (1991). The distinctions generally owe their existence to technical and substantive differences with respect to modes of trial, jurisdiction, punishment and benefit of clergy, all matters of diminished or no importance in modern times. ... The common law originally divided all crimes into three categories: treasons, felonies and misdemeanours. It was only in relation to felonies that there were different levels of participation recognised by law. Originally, the categories of participation were principals, accessories before the fact, accessories at the fact and accessories after the fact. ... The distinguishing feature of accessories at the fact was their presence at the commission of the crime. Accessories at the fact were described as 'aiding and abetting' the commission of the crime. Accessories before the fact were referred to as having 'counselled or procured' the crime. ... Later, accessories at the fact became described, for purposes of classification, as principals in the second degree."

56 In his treatise on the law of criminal complicity Smith[69] said:[70]

"Although customary to reserve 'aiding and abetting' for secondary parties present at the offence, and 'counselling and procuring' for those absent, there is no substantive rule delineating modes of complicity on the basis of presence. As Foster (Crown Law, 125 and 131) suggests

'It is a principle in law which can never be contraverted that he would procureth a felony be done is a felon. If present he is a principal if absent an accessory before the fact.'

Similarly Hale (PC 615-16 and 438)

'An accessory before is he that being absent at the time of the felony committed doth yet procure, counsel or abet another to commit a felony ... for if he is present he be a principal'."

57 Furthermore, and as stated by Smith:[71] "All forms of behaviour having the potential to either encourage or influence the perpetrator or help him carry out the offence can form the basis of complicity, something to be borne fully in mind when selecting or devising any verbal formulae for any codifying effort".

58 From the above it becomes apparent that there has been, at the minimum, a blurring of the distinctions between the various categories of complicity by reason of the fact that the distinction between felonies and misdemeanours is no longer the law. The distinction once made between an aider and abettor who was present at the scene of the crime, and counsellors or procurers on the other hand who were not, is in my view no longer valid.

Conclusion

59 Thus to return to the exposition of the law by Cussen ACJ in R v Russell, it appears to me that for a person to be found guilty of aiding and abetting the commission of an offence by a principal, requires a link in purpose between that person and a principal. In addition to the link in purpose, the aider and abettor must by words or conduct do something to bring about the commission of the offence. In my view that does not require actual presence. Rather, the above referred to authorities demonstrate that the formal division of accessories into "aiders", "abettors", "counsellors" and "procurers" is now unnecessary. It appears to me to be clear now that in general, there is no distinction to be drawn between accessories who are present at and those who are absent from the place of the commission of a crime in relation to the issue of culpability, if each such accessory has the required knowledge of the nature of the criminal purpose and has taken steps to assist in, and/or to promote the commission of the criminal purpose.

60 Indeed, it is highly unlikely that in circumstances where the Code does not contemplate the concept of "acting in concert", the only forms of criminal complicity (other than conspiracy or incitement and common purpose) which are capable of being alleged, are that of a person who was actually present at the time of the commission of an offence (an aider or abettor) or that of an accessory before the fact (a counsellor or procurer). Parliament could not have intended such a consequence. One has only to contemplate the type of crimes in which modern technology may be used by the perpetrators, to realise that archaic and arbitrary considerations of presence have no place. The development of electronic forms of communication alone demonstrate this.

61 Furthermore, and as submitted by the prosecution, s.11.2(4) of the Code directly admits of the possibility of a person aiding and abetting the commission of a crime by conduct which occurs before the crime was committed. That section reads:

"(4) A person cannot be found guilty of aiding, abetting, counselling or procuring the commission of an offence if, before the offence was committed, the person:

(a) terminated his or her involvement; and

(b) took all reasonable steps to prevent the commission of the offence.

If the presence of an accomplice at the time of the commission of the offence by the principal, is necessary for the accomplice to be convicted of such offence as an aider and/or abettor, as is submitted by Mr Russell, then s.11(4) of the Code would make no sense. Clearly the section contemplates that all of the conduct which might establish "aiding" or "abetting" of the commission of an offence can occur prior to the commission of the offence. In other words, if prior to the commission of the actual offence, a person has taken some steps which would have aided and abetted the commission of that offence, but that person then terminates his involvement and takes all reasonable steps to prevent the offence occurring, he is not guilty. Ipso facto, if, before the commission of the crime, that person has undertaken some activity which assists in the commission of the crime and does not terminate his involvement and does not take all reasonable steps to prevent the commission of the crime, he can be found guilty on the basis that he aided and/or abetted. In my view, proof that the accused was present physically throughout the time of the commission of the offence so as to be able to aid or encourage every aspect of the commission of the offence is not required by the complicity provisions of the Code and I do not propose to direct the jury that such presence is necessary.

62 However, that said, it does not appear to me that in the end result, the issue of presence is a matter of significance in all the factual circumstances of the particular case before me. The reason that I reach such a conclusion is that it is clear, on any view, that even if, contrary to my conclusion, presence is required to establish that a person aided and abetted the commission of an offence under the Code, such presence need only be constructive.

63 In relation to this issue Russell on Crime[72] states:[73]

"It used commonly to be stated that a principal in the second degree must be 'present' at the fact: but 'present' was always an elastic term and covered the case of a person aiding and abetting at the time even by keeping watch and ward at a suitable distance; and even this was extended by the very convenient term 'constructive presence' so that now the true principle is that so long as the accomplice is participating by rendering aid, assistance or even mere encouragement to the actual perpetrator at the very time when the latter is effecting criminal purpose, no matter how far away from the spot he may be, then he is certainly aiding and abetting it, and will be principal in the second degree (if a felony) and punishable just as the principal is in the first degree; if it be misdemeanour he is held guilty of the crime itself. But there must be some evidence of encouragement."

64 The issue of the nature of presence has received attention in Victoria also. In R v Morgan[74] the Court of Criminal Appeal dismissed an appeal by a man convicted of manslaughter in circumstances where it could not be proved that he was present at all times when the deceased was attacked. The court held that the test of criminal liability did not depend on the physical presence of the person at the scene of the crime but rather, where appropriate, his participation in the fulfilment of a common purpose by the commission of the crime. At the trial the prosecution put its case against the appellant on the basis of his complicity as aiding and abetting, or acting in concert with others, in inflicting the injuries which caused death. It was argued that the prosecution was required to prove the presence of the appellant when the acts constituting the crime were committed. In support of this argument reliance was placed upon the classic statement of Smith J in R v Lowery and King (No. 2) referred to above. The Court said:[75]

"Although the Lowery and King direction is no doubt in a sense hallowed ... where more than one accused is alleged to have 'acted in concert' there has been a tendency to repeat it mindlessly to juries irrespective of the circumstances of the case. The direction was formulated at a time when the law still classified crimes as felonies and misdemeanours and presentments distinguished between principals and accessories ... In Lowery and King the accused were alleged to have been principals in the commission of the crime of murder. The distinction between felonies and misdemeanours was abolished by s.322B which was inserted into the Crimes Act 1958 in 1981 ... which also enacted a new Div 1 of Pt II relating to aiders, abettors and accessories. Since 1981 ... the criminal responsibility of accessories (other than accessories after the fact) is by s.323 the same as that of principal offenders. In Lowery and King the accused were charged as principals and both were, as a matter of common ground, 'present' at the scene of the crime. There was an issue about which of the two accused was the author of the acts of torture and killing of the deceased but no issue that they were other than both 'present'. A direction which includes the requirement of 'presence' at or near the scene of the crime is, and always was, clearly inappropriate where accused were alleged to be aiders and abettors and/or accessories before the fact.

In the present case it is a moot point whether the 'presence' of the applicant for at least some of the time at the scene of and in the course of the commission of the crime made him a principal in the first or second degree or an accessory or partly one and partly the other. But the point does not require resolution because there is no longer a distinction between felonies and misdemeanours and in the present case there was no question whether the applicant was a principal in the first degree, the second degree or an accessory before the fact. ..."

"Where a person is alleged to be guilty of complicity in the commission of a crime committed by a number of persons, the proof of that person's complicity depends on all the circumstances from which that person's involvement is capable of being deduced. The significance of a particular circumstance or absence of it will always depend on the offence under consideration, the way it was committed and the respective roles of the persons said to be responsible. ...

We consider that the critical question is whether the applicant was complicitous in the commission of that totality or rather whether the jury, acting reasonably, was entitled to conclude that he was. The answer does not depend on whether he was present during the commission of every single one of the assaults. It depends on whether he was complicitous in the conduct constituted by the infliction of all the injuries, even if he were not present throughout the entire time in which all of them were inflicted. His presence or absence at the scene does not in itself determine his liability as a participant in the joint commission of the crime but his whereabouts at particular times may be relevant to whether proof of his complicity was made."

66 In the circumstance before me the importation of heroin into Australia was not an event that took place in a single moment. Whilst I have ruled that the offence of importation of the heroin in this case would be completed at a point where the carriage by sea ended, and the heroin was unloaded and landed ashore[77], the evidence as I understand it to be, is that activities which lead to the point of completion of the offence commenced a significant time before the landing of the heroin at Boggaley Creek. The evidence is that the accused chief engineer was present on the ship during the whole time that the heroin was carried by it to Australian shores. He was present on the ship at the time that the heroin was unloaded and sent ashore in an inflatable dinghy. He was present on the ship when the dinghy reached the shore of the Australian coastline at Boggaley Creek. The evidence is that at that time the Pong Su was within a kilometre of the shore. The prosecution case is that the chief engineer was responsible for the operation of the ship's engine which enabled the Pong Su to stop at Boggaley Creek, anchor there and then continue to manoeuvre there for many hours after the dinghy left the ship. In such circumstances, and assuming evidence of these matters is put before the jury, I conclude that even if, contrary to my conclusion, presence is required under the Code in order to establish that the accused aided and abetted the importation of heroin, the evidence of such presence is capable of being at the least, constructively established by the evidence in this case. Indeed the fact of such presence and the operation of the ships engine during the relevant time, as I understand the prosecution case, is relevant to the circumstantial case in complicity made against the chief engineer. In my view the jury would be entitled, subject, of course, to being satisfied beyond reasonable doubt of the knowledge of the chief engineer of the facts constituting the essential elements of the crime, to conclude that he was at all times sufficiently proximate to the commission of the crime so as to provide assistance, and encouragement to its commission. The prosecution case is that his assistance consisted principally in being responsible for the operation of the ship's engine to permit the ship to place itself in a position to enable an inflatable dinghy to be launched to go ashore, and to stand by, as the dinghy and it's occupants went to shore and unloaded the heroin. As I understand the prosecution case, throughout this period the chief engineer was in charge of the engine and thus rendered assistance to the importation of the heroin. In such circumstances it is difficult to see how it could be argued that he was not present at the time of the commission of the offence, even under the older authorities relating to the necessity for presence in felony cases. The manner in which the prosecution puts the case against the chief engineer is in many ways little different from the case against the driver of the car which brings a bank robber to the scene of the robbery and awaits a discreet distance away as the offence is committed. Furthermore of course, it is clear that the law has never required presence throughout the whole of the transaction in question. Where an offence takes place over a period of time an accessory will be regarded as being present, and thus an aider even though he is actually present during only part of the transaction.[78]

1 See Revised Summary of Prosecution Opening, 9 May 2000 at paras 649-654[.]

2 [1972[]] VR 560 at 561-2.

[3] [1985] HCA 29; (1985) 156 CLR 473 at 493.

[4] See the review of the history of accessorial liability and the discussion relating to s.323 Crimes Act (Vic) 1958 by Callinan J in Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 at 402-3.

[5] [1980] HCA 3; (1980) 143 CLR 108 per Barwick CJ at 110 and per Mason, Murphy and Wilson JJ at 124.

[6] [1985] HCA 29; (1985) 156 CLR 473 per Gibbs CJ at 477.

[7] [1978] 3 All ER 1140.

[8] At 1142.

[9] At 1146.

[10] [1985] HCA 29; (1984-5) 156 CLR 473.

[11] At 497.

[12] [1986] HCA 59; (1986) 161 CLR 423.

[13] At 436-7

[14] [1933] VicLawRp 7; [1933] VLR 59.

[15] At 67.

[16] Bronitt and McSherry; Principles of Criminal Law, LBC 2001 at p.379

[17] At 493.

[18] [1933] VicLawRp 7; [1933] VLR 59.

[19] (1858) 3 H and N 227.

[20] At 237-238.

[21] [1951] 1 KB 814.

[22] At 819.

[23] (1984) 1 QB 795.

[24] At 809.

[25] At 493.

[26] At 478-479.

[27] (1987) 45 SASR 335.

[28] At 337.

[29] At 480.

[30] At 338-339.

[31] [2002] NSWLEC 19.

[32] Gillies, The Law of Criminal Complicity, Law Book Co 1980 at 25.

[33] Gillies, ibid at 23.

[34] See Walsh v Sainsbury (1925) 36 CLR 467 at 476-7 (per Isaacs J) Gillies Op Cit 23; R v Goldie; Ex Parte Picklem [1937] HCA 65; (1937) 59 CLR 254 at 268 per Dixon J); and Howell v Doyle [1952] VicLawRp 21; [1952] VLR 128 at 133 per Herring CJ.

[35] P 89 - (para 402)

[36] [1925] HCA 28; (1925) 36 CLR 464 at 467-7.

[37] [1949] HCA 48; (1949) 80 CLR 198 at 216.

[38] (1987) 45 SASR 335 at 336.

[39] [1951] 1 KB 814.

[40] At 818-9.

[41] Aid, Abet, Counsel or Procure: Reshaping the Criminal Law: Essays in Honour of Glanville Williams, edited by P.R. Glazebrook. London, 1978.

[42] Principles of Criminal Law, Bronitt and McSherry. LBC 2001 p.379.

[43] Gillies, Op Cit 30.

[44] [1991] 2 Qd R 413

[45] [1960] 1 QB 129

[46] It should be noted that the Queensland Courts Bench Book model charge relating to s.7 of the Queensland Code makes no reference to the question of presence in relation to aiding the commission of an offence. See www.courts.qld.gov.au/practice/benchbook.htm

[47] In the Matter of the Pong Su (Ruling No. 13) 2005 VSC 38 at para 29.

[48] [1966] AC 37 at 46.

[49] [1959] 1 QB 11.

[50] At 25.

[51] Archbold, Criminal Pleading, Evidence and Practice, Sweet and Maxwell Limited 2005.

[52] At 1723.

[53] At 1726.

[54] At 176.

[55] [1959] 1 QB 11.

[56] [1996] AC 37.

[57] [1991] RTR 405, DC.

[58] At 411.

[59] [2001] NSWSC 1075 and [2001] NSWSC 1075; [2001] 166 FLR 288.

[60] At 298-9

[61] [1980] HCA 3; (1979-1980) 143 CLR 108.

[62] At 117.

[63] At 480-481.

[64] At 490.

[65] At 493.

[66] [1998] HCA 75; (1998) 197 CLR 316.

[67] At 341.

[68] At 399-400.

[69] K.J.M. Smith A Modern Treatise on the Law of Criminal Complexity. Clarendon Press - Oxford 1991.

[70] At p.32.

[71] At p.33.

[72] Vol 1 12th ed. London 1964.

[73] At 138-139.

[74] [1994] VicRp 41; [1994] 1 VR 567.

[75] At 570.

[76] At 573.

[77] In the Matter of the Pong Su (Ruling No. 7) [2005] VSC 7

[78] See Gillies, Op Cit, at 47.