R v Choi

R v Choi - [2005] VSC 96 - VSC 2005 case summary — Zoe

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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[]]:

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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]

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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]

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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]

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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]

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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:

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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:

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(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]

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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]

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