The Queen v Semaan & Ors

2 The prosecution puts its case against each accused on alternative bases in respect of each count. First, that each accused was a perpetrator. Second, and pursuant to s 323(1)(c) of the Crimes Act 1958 (the Act), that each accused was involved in the commission of each offence by reason of being a party to an agreement, arrangement or understanding to commit the offence.

3 The issue I have to decide is whether, in respect of the second basis, it is necessary for the prosecution to prove that the accused in question 'participated' in the joint venture.

4 The offences are alleged to have occurred between 2 December 2014 and 22 January 2015. Since 1 November 2014, the law of complicity in respect of state offences has been governed by Subdivision 1 of Division 2 of Part II of the Act (ss 323 to 324C). That Subdivision provides:

323 Interpretation

(1) For the purposes of this Subdivision, a person is involved in the commission of an offence if the person -

(a) intentionally assists, encourages or directs the commission of the offence; or

(b) intentionally assists, encourages or directs the commission of another offence where the person was aware that it was probable that the offence charged would be committed in the course of carrying out the other offence; or

(c) enters into an agreement, arrangement or understanding with another person to commit the offence; or

(d) enters into an agreement, arrangement or understanding with another person to commit another offence where the person was aware that it was probable that the offence charged would be committed in the course of carrying out the other offence.

(2) In determining whether a person has encouraged the commission of an offence, it is irrelevant whether or not the person who committed the offence in fact was encouraged to commit the offence.

Note

A person who committed an offence may include 2 or more persons who entered into an agreement, arrangement or understanding to commit the offence.

(3) A person may be involved in the commission of an offence, by act or omission -

(a) even if the person is not physically present when the offence, or an element of the offence, is committed; and

(b) whether or not the person realises that the facts constitute an offence.

1. Person involved in commission of offence taken to have committed the offence

(1) Subject to subsection (3), if an offence (whether indictable or summary) is committed, a person who is involved in the commission of the offence is taken to have committed the offence and is liable to the maximum penalty for that offence.

(2) Despite subsection (1), a person is not taken to have committed an offence if the person withdraws from the offence.

Note

The common law recognises that in certain circumstances a person may withdraw from an offence in which the person would otherwise be complicit: for example, White v Ridley [1978] HCA 38; (1978) 140 CLR 342; R v Tietie, Tulele and Bolamatu (1988) 34 A Crim R 438; R v Jensen and Ward [1980] VicRp 24; [1980] VR 194.

(3) Nothing in this section imposes liability on a person for an offence that, as a matter of policy, is intended to benefit or protect that person.

324A Other offenders need not be prosecuted or found guilty

A person who is involved in the commission of an offence may be found guilty of the offence whether or not any other person is prosecuted for or found guilty of the offence.

324B Offender's role need not be determined

A person may be found guilty of an offence by virtue of section 324 if the trier of fact is satisfied that the person is guilty either as the person who committed the offence or as a person involved in the commission of the offence but is unable to determine which applies.

324C Abolition of certain aspects of complicity at common law

(1) The law of complicity at common law in relation to aiding, abetting, counselling or procuring the commission of an offence is abolished.

(2) The doctrines at common law of acting in concert, joint criminal enterprise and common purpose (including extended common purpose) are abolished.

Note

The common law concerning the circumstances in which a person may withdraw from an offence in which the person would otherwise be complicit is not abolished by this section. (emphasis added)

5 The prosecution relies on s 323(1)(c) of the Act, in combination with s 324(1), for its case against both women. Section 323(1)(c) effectively replaces the common law doctrines of acting in concert and joint criminal enterprise,[1] which were also predicated on an agreement, arrangement or understanding between the parties to commit a crime. Under these common law doctrines, participation was required: the prosecution had to prove that the accused made a contribution to the joint venture, over and above simply entering into the agreement, arrangement or understanding that the offence be committed. In the case of acting in concert, participation of a particular kind was required, namely, presence.[2]

6 The prosecution submits that participation is no longer required for such joint ventures. Participation may be of evidentiary significance - as a basis for inferring the criminal agreement - but, according to the prosecution, it is no longer an element. Six reasons are advanced for this submission. First, the relevant provisions make no mention of participation. Second, certain passages in the Weinberg Report,[3] upon which the reforms were based, are said to support the view that participation is not required. Third, the essence of this mode of statutory complicity is agreement. Fourth, liability is derivative. Fifth, presence has been expressly abolished as a requirement. Sixth, the Judicial College of Victoria's ('JCV') Bench Notes for Statutory Complicity[4] favour the prosecution's view.

7 In my view, if Parliament had intended to abolish the element of participation one might have expected them to say so clearly.[5] The fact that the new provisions do not mention the word participation is not enough. The new provisions do not mention the word intention either but it is not suggested that intention has been abolished as an element.

8 The Weinberg Report was critical of many aspects of the common law doctrines of complicity but it did not criticise the general requirement of participation for complicity based on agreement. Rather, it was critical of the requirement of a particular form of participation, namely presence, for acting in concert (and aiding and abetting) and, thus, recommended what became s 323(3). That section expressly abolishes the requirement of presence. But in recommending that change, the Weinberg Report commented:

...[A]lthough [s 323(1)] contains no express requirement of physical presence, it is desirable to include a provision stating clearly that such presence is not required for any form of complicity based on [s 323(1)]. [Section 323(3)(a)] will avoid the need to consider, afresh, that issue every time a new fact situation arises which calls into question whether the case is based upon concert, or some other form of group activity. The proposed section is intended to ensure that all relevant acts of participation are considered and not merely those carried out at the place where the offence was in fact committed.[6] (emphasis added)

9 Rather than demonstrating an intent to sweep away the element of participation in general, this passage in the Weinberg Report, and the terms of s 323(3) itself, tends to support the contrary view.

10 There are two passages in the Weinberg Report on which the prosecution place particular reliance:

In principle, there is no reason why complicity should not be made out if there has been a conspiracy proved which has resulted in the commission of the agreed offence.[7]

...

This proposed subsection[8] covers group activity in which an accused has "entered into an agreement, arrangement or understanding with another person to commit the offence...". It is in truth a "completed conspiracy offence". That is to say that liability under this ground will be made out if a conspiracy has been proved which has resulted in the commission of the substantive offence which was the subject of the conspiracy.[9]

11 Liability for an offence under the common law doctrines of acting in concert and joint criminal enterprise might also be described as liability for a completed conspiracy offence. This is because the distinguishing feature of these common law modes of complicity (like liability under s 323(1)(c)) is an agreement, arrangement or understanding to commit an offence - in other words, a conspiracy. In these passages, the Weinberg Report does not necessarily demonstrate an intention to 'oust' participation. Further, the prosecution's reading of these passages pays insufficient regard to the fact that the Weinberg Report did not criticise the requirement of participation in general or recommend its express abolition, as it did with the requirement of presence.

12 The prosecution's submission also pays insufficient regard to what the Attorney General said in the Second Reading Speech for the relevant Bill:[10]

Except for extended common purpose, these provisions have a similar scope to the common-law doctrines.[11] (emphasis added)

13 The fact that liability under the new provisions is clearly derivative does not assist the prosecution. In fact, it cuts the other way. It demonstrates an intention on the part of the legislature to reduce the reach of the law of complicity based on agreement,[12] as does the modification to the doctrine of extended common purpose, which in its statutory guise now requires proof of foresight of a probability, not a possibility, of the incidental crime (s 323(1)(d)). The prosecution submission that participation has been abolished as an element is out of step with these developments.

14 The passage from the JCV Bench Notes on which the prosecution relies states:

At common law, offending as part of a group required proof of an additional element that the accused participated in the joint criminal enterprise. It is likely that this requirement no longer applies to complicity under ... s 323(1)(c). Instead, group offending is treated as a form of completed conspiracy.[13]

15 With due respect to the author of that passage, it does not deal with the considerations I have discussed above, and which lead me to the view that participation remains an element.

[1] Joint criminal enterprise is also known as common purpose. Extended joint criminal enterprise is also known as extended common purpose.

[2] See the Judicial College of Victoria, Criminal Charge Book (last updated 2 March 2015), 5.3.1 Bench Notes: Joint Criminal Enterprise, [5]:

Previously, it was thought that 'Joint Criminal Enterprise' and 'Acting in Concert' were discrete forms of liability. The difference was said to be that 'Concert' required proof of presence while 'Joint Criminal Enterprise' required proof of participation. It is now recognised that the difference is only one of nomenclature and that there is no requirement to prove that an accused is present through the whole of the offending (Likiardopoulos v R [2012] HCA 37; McAuliffe v R [1995] HCA 37; (1995) 183 CLR 108. See also R v Morgan [1994] VicRp 41; [1994] 1 VR 567; R v Franklin [2001] VSCA 79; (2001) 3 VR 9; R v Lao & Nguyen [2002] VSCA 157; (2002) 5 VR 129; R v Tangye (1997) 92 A Crim R 545; R v Cavkic [2005] VSC 182; Johns v R [1980] HCA 3; (1980) 143 CLR 108. Cf Likiardopoulos v R [2010] VSCA 344; Smith, Garcia & Andreevski v R [2012] VSCA 5).

[3] Simplification of Jury Directions Project: A report to the Jury Directions Advisory Group August 2012, ('Weinberg Report').

[4] Judicial College of Victoria, Criminal Charge Book (last updated 2 March 2015), 5.2.1 Bench Notes: Statutory Complicity, [58].

1. [5] Cf R v Saengsai-Or [2004] NSWCCA 108; 61 NSWLR 135 at [71]: "If the legislature had intended to make proof of the offence less burdensome for the Crown it might be expected to have done so in clear terms: Krakouer v R [1998] HCA 43; 194 CLR 202 per McHugh J at 233, [63]. See also Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277, per O'Connor J at 304 (citing Maxwell on Statutes, 4th edition at p. 121-2):

There are certain objects which the legislature is presumed not to intend; and a construction which would lead to any of them is therefore to be avoided ... One of these presumptions is that the legislature does not intend to make any alteration in the law beyond what it explicitly declares, either in express terms or by implication; or, in other words, beyond the immediate scope and object of the Statute. In all general matters beyond, the law remains undisturbed. It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used. (citations omitted, emphasis added)

[8] That is, what became s 323(1)(c) of the Act.

[10] Crimes Amendment (Abolition of Defensive Homicide) Bill 2014 (Vic).

[11] Victoria, Parliamentary Debates, Legislative Assembly, 20 August 2014, 2834 (Robert Clark, Attorney-General).

[12] Liability pursuant to acting in concert was primary, not derivative. A party could be liable even though the one who 'did the deed' was not liable. Osland v R [1998] HCA 75: (1998) 197 CLR 316.

[13] Judicial College of Victoria, Criminal Charge Book (last updated 2 March 2015), 5.2.1 Bench Notes: Statutory Complicity, [58].