R v Rechichi [1999] WASC 45

Supreme Court of WA|1999-05-31|Before: Murray J, Cantley J, Scott J

This matter was argued on a hypothetical basis so that the issue could be ventilated. Counsel for the accused has made it plain that the entire Crown's case is in dispute and that no admissions of fact have been made. Any reference in these reasons to the defence case is on a hypothetical basis only and for the purpose of these proceedings and no other.

8 For the purpose of these proceedings only, the defence position is that the Crown can only establish at best, that the accused attempted to have one Doodson entice the proposed victims into a vehicle in such a manner, and in such circumstances, that the accused would be able to wilfully murder them by shooting them. Whilst those facts may be contested at trial, for the purposes of this application the court was asked to accept those facts.

10 The starting point in examining that proposition is s 7 of the Criminal Code which provides:

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

(a) Every person who actually does the act or makes the omission which constitutes the offence;

(b) Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

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

In the fourth case he may be charged either with himself committing the offence or with counselling or procuring its commission.

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

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

11 As can be seen from s 7, on either version of the facts to which I have referred, Doodson could have been charged with wilful murder had the acts procured to be done been carried out and the offence completed. He would have aided the offence by bringing the victims to the place where he knew they were to be killed and as a consequence, under s 7, he would have been "deemed" to have taken part in committing the offence and to be guilty of the offence. In that sense the Criminal Code makes a person who aids the commission of an offence, a principal offender for the purposes of the criminal law, even though he may have had no direct involvement in the physical causation of death.

12 The only authority that counsel has been able to find dealing specifically with the equivalent section to s 556 of the Western Australian Code, is R v Webb [1995] 1 Qd R 680, where the court comprising Davies JA, Pinkus JA and Lee J had occasion to consider the equivalent section of the Criminal Code (Qld) (s 539) and said in the judgment of the court at 683:

"Section 539 necessarily contemplates that the act in question, although intended, will not have been done or even attempted. Where it can be proven beyond reasonable doubt that the defendant not only attempted to procure the act to be done, but also attempted to procure the act to be done in a certain manner or in certain circumstances, those circumstances will be no more hypothetical in character than the doing of the act itself."

13 R v Webb involved the issue as to whether s 539 was wide enough to encompass the situation of an offence committed in a circumstance of aggravation, so that the circumstance of aggravation would be part of the charge. That case of course, involved different considerations to those presently under consideration, as no circumstance of aggravation arises for consideration here. Nonetheless, the judgment is particularly helpful. With reference to the last paragraph of s 7 of the Queensland Code, which is in similar terms to that set out earlier in these reasons in s 7 of the Western Australian Code, the court said, at 685:

"This final paragraph of s 7 applies in circumstances where A commits an offence by the use of an 'innocent agent'. B acts as an innocent agent where he or she lacks criminal responsibility (see, for example, White v Ridley [1978] HCA 38; (1978) 140 CLR 342 at 346 - 347) or where intent is an element of the offence and he or she lacks that intent.

Obviously, when the Code was enacted, it was considered that the reference to an 'act or omission' in the final paragraph of s 7 was necessary to extend s 7's application to innocent agent situations. Sir Samuel Griffith's note to the final paragraph of section 8 of the draft Criminal Code (identical to the present final paragraph of section 7) confirms this. The note reads:

'The agent may be innocent. In that case he would not commit an offence, and, no offence having been committed by him, there could not be any accessory before the fact. The distinction is important. I believe it is in accordance with the existing law, except, perhaps, as to the extent of punishment'."

14 It is common ground in this case, that Doodson was an innocent agent in the sense that he was a person connected with the police authorities and who was used by them to assist in the investigation of the conduct of the accused after the accused's plan had been revealed to the police.

15 As can be seen, s 556 is hypothetical in its nature. The section is aimed at a situation where a person attempts to procure another to do an act. Necessarily the act to which the section refers has not been committed, as, if it had, a substantive offence would have been committed. In this case, in any event, no such act was committed. In my opinion, the act to which s 556 refers in this case is the acts of Doodson to enable Rechichi to shoot and thereby kill the victims. If indeed Doodson did the acts alleged with that knowledge and as a person aiding Rechichi in the commission of the offence, then in my opinion he would be a principal offender, and by virtue of s 7, equally criminally liable for the homicides. The distinction between the position at common law upon which counsel for the accused relies and that under the Code, is that s 7 is a deeming provision which makes the aider a principal offender for the purposes of offences under the Criminal Code. In that respect therefore, in my opinion, it does not matter that Doodson was said to be a person who was "aiding" the criminality of Rechichi. In terms of s 7, if he did so, then he too would be guilty of the offence to be committed by Rechichi.

16 In R v Webb (supra) the court also considered the relationship between s 7 and s 539 (of the Queensland Criminal Code) and said at 687:

"Rather than including separate paragraphs dealing with, on the one hand, attempts by A to procure B to commit an offence and, on the other hand attempts by A to commit an offence by using B, s 539 was worded in such a way as to cover both situations simultaneously. This was achieved by referring not to offences, but to acts or omissions, and by including the words 'whether by himself or by any other person' in stating by whom the offence would have been committed."

17 Counsel for the accused also submitted that to construe this section in the way the Crown contends, would extend the ambit of the criminal law far beyond its present reach. I do not accept that as being the case. The Criminal Code (WA) now extends to persons who incite criminal conduct (s 553) and has always extended to persons who conspire to commit criminal offences (Code s 558 to s 560). In my opinion it does not involve an unjustifiable extension of the criminal law to construe this section in such a manner as to extend the ambit of the crime to a person whose conduct is that of an aider, in the sense of a party contributing to the homicide and therefore by reason of s 7, a principal offender for the purposes of s 556. In my opinion, that section expressly purports to extend the criminal law to those who attempt to procure another to do an act which would constitute an offence. In that respect, in my opinion, "offence" has no different meaning to that in s 7, and would include the commission of a deemed offence within the meaning of that provision, providing that the conduct which the accused attempted to procure would be an offence (in this case to assist in bringing about the deaths of the intended victims).

18 In Borg v R [1972] WAR 194, Jackson CJ said at 197 after setting out s 7 of the Criminal Code:

"In the language of common law, para (a) of this section describes a principal offender, para (c) a principal in the second degree, and paras (b) and (d) describe different classes of accessories before the fact. At common law Borg would be regarded as a principal in the second degree, because he was at the time of the offence present and near enough to help or give assistance should occasion arise: see R v Betts and Ridley (1930) 22 Cr App Rep 148, at 154. But para (c) of the section is probably intended to refer to a person who aids another in the actual act or omission which constitutes the offence, and the case against Borg may more properly be regarded as falling within para (b). Under that paragraph an accessory who does or omits an act for the purpose of enabling the principal offender to commit an offence which to the accessory's knowledge includes a threatened or likely assault upon the victim is himself guilty of manslaughter if the victim dies from an assault of the nature contemplated; for although the death was not within the accessory's contemplation, as the plan involved an unlawful assault, then if death results from such an assault he 'must abide it fully and to the end': Starke J, in Brennan v R [1936] HCA 24; (1936) 55 CLR 253, at 260."

19 In my opinion in this case, it is only if the Crown can bring the matter under par 7(c) of the Code, that is to show that Doodson was to be a principal in the second degree (in common law terms) that the Crown's case could be made out.

20 As is apparent from these reasons, there is a dispute between the Crown and the accused as to the facts as they apply to this application. On the Crown's case, Doodson was not only to intercept the vehicle in which the victims were travelling, but to bring them back to the police vehicle where Rechichi would shoot them. In addition, on the Crown's case, it would be open to the jury to infer that Doodson was to participate in the killing by remaining present whilst the victims were shot and then assisting in the disposal of their bodies. The defence position on the other hand is that the highest the Crown's allegations can be put are that Doodson's part was to arrange for the victims to be in a situation where Rechichi could shoot them, but play no role beyond that.

21 In my opinion questions of fact will need to be resolved before the issue can be finally determined. I am of the view that the counts on the indictment under consideration, do disclose an offence known to the law, in that if Doodson as the person procured, was to participate in the killing directly or indirectly (which may be an inference open to the jury depending upon the facts) then Doodson was to be procured to do an act by which an offence would be committed (although not in the sense of the person who was to fire the shots that would bring about the death).

22 In these circumstances, in my opinion, the indictment does disclose an offence, and the indictment should not be quashed as sought by the motion.

CITATION : R -v- RECHICHI [1999] WASC 45

Commissioner for Railways (NSW) v Aggalianos [1955] HCA 27; (1955) 92 CLR 390

K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 60 ALR 509

R v Robinson [1976] WAR 155

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