White v Ridley

White v Ridley - [1978] HCA 38 - HCA 1978 case summary — Zoe

[8]

The applicant did not himself bring the cannabis into Australia; it was brought in by the airline. However it is well settled at common law that a person who commits a crime by the use of an innocent agent is himself liable as a principal offender. That is so not only where the agent lacks criminal responsibility, as, for example, when he is insane or too young to know what he is doing, but also where the agent, although of sound mind and full understanding, is ignorant of the true facts and believes that what he is doing is lawful. Thus if A sends out B with a forged bank note for the purpose of passing it, and B does so, being ignorant that it was forged, A is guilty of uttering and publishing the note as true, since "where an innocent person is employed for a criminal purpose, the employer must be answerable": R. v. Palmer and Hudson [1] . If A gives B false particulars to enter in a register, and B enters them in the belief that they are true, A is guilty of making the false entry in the register: Reg. v. Butt [2] . If A, planning a forgery, procures B, an innocent engraver, to make a plate, A is guilty of making and engraving the plate: Reg. v. Bull and Schmidt [3] . So it has been held that where the defendants fabricated false vouchers on the high seas and posted them to a third person who innocently delivered them in Middlesex, a delivery by the defendants took place in Middlesex so that the defendants were triable there, "for the persons who innocently delivered the vouchers were mere instruments in their hands for that purpose; the crime of presenting these vouchers was exclusively their own, as the crime of administering posion through the medium of a person ignorant of its quality would be the crime of the person procuring it to be administered": Reg. v. Brisac and Scott [4] . In the light of this common law principle it has been held that the words "actually commits the offence" in s. 66 (1) of the Crimes Act 1961 N.Z. are apt to describe a person who, with the necessary criminal intent, uses another but innocent person as an instrument to perform the physical act necessary to commit the particular crime: Reg. v. Paterson [5] . The provisions of s. 233B (1) (b) of the Customs Act 1901, as amended, and those of s. 5 of the Crimes Act 1914 Cth, as amended, must also be understood in the light of this well established principle. The applicant could not be held to be guilty on the basis that he aided, abetted, counselled or procured the importation of the cannabis. His conviction can only be sustained on the footing that he himself imported it, through the innocent agency of the airline.

[11]

The law as stated by Hale is that a person is not liable as an accessory if he has given "timely countermand", but that repentance, without an actual contermand before the fact committed, is not enough to avoid liability: Pleas of the Crown, vol. I, p. 618. The only modern case in relation to accessories appears to be R. v. Croft. It was there said [6] : "The authorities, however, such as they are, show, in our opinion, that the appellant, to escape being held guilty as an accessory before the fact must establish that he expressly countermanded or revoked the advising counselling, procuring or abetting which he had previously given." The Court there obviously did not intend to say that the accused bore the onus of establishing that the counselling or procuring of the crime had been countermanded or revoked; what was meant was that he would not be guilty as an accessory if he had expressly countermanded or revoked his counselling or procuring. The general onus of proving the guilt of the accused would never shift from the Crown, but an accused who relied on the giving of a countermand or revocation must be able to point to evidence which shows that a countermand or revocation had been given: cf. Reg. v. Saylor [7] . Professor Glanville Williams has expressed the view that the rule that the authorization must have been expressly withdrawn is in some cases too stringent, and that there is no reason to doubt that a withdrawal may be implied from conduct in certain circumstances: Criminal Law: The General Part, 2nd ed. (1961), p. 384. This may well be correct in cases of common design, although it is difficult to envisage a case in which a person who has expressly procured the commission of a criminal offence can sufficiently countermand what he has done merely by conduct; that question however does not arise in the present case. In R. v. Croft the Court did not mention the requirement that the withdrawal should be timely, and in Archbold: Criminal Pleading Evidence and Practice, 39th ed. (1976), par. 4143, it is said that "it does not appear to have been clearly established whether the countermanding or withdrawal from the crime must have been timely and effective, or whether the person countermanding or withdrawing is required, in order to escape liability, to take reasonable steps to prevent the commission of the crime". However the cases on common design to which I am about to refer clearly recognize that a timely withdrawal is essential, and there would seem to be no reason why the same should not be true of a countermand or revocation by an accessory.

[14]

Can it be said on the facts of this case that a mere change of mental intention and a quitting of the scene of the crime just immediately prior to the striking of the fatal blow will absolve those who participate in the commission of the crime by overt acts up to that moment from all the consequences of its accomplishment by the one who strikes in ignorance of his companions' change of heart? I think not. After a crime has been committed and before a prior abandonment of the common enterprise may be found by a jury there must be, in my view, in the absence of exceptional circumstances, something more than a mere mental change of intention and physical change of place by those associates who wish to dissociate themselves from the consequences attendant upon their willing assistance up to the moment of the actual commission of that crime. I would not attempt to define too closely what must be done in criminal matters involving participation in a common unlawful purpose to break the chain of causation and responsibility. That must depend upon the circumstances of each case but it seems to me that one essential element ought to be established in a case of this kind: where practicable and reasonable there must be timely communication of the intention to abandon the common purpose from those who wish to dissociate themselves from the contemplated crime to those who desire to continue in it. What is "timely communication" must be determined by the facts of each case but where practicable and reasonable it ought to be such communication, verbal or otherwise, that will serve unequivocal notice upon the other party to the common unlawful cause that if he proceeds upon it he does so without the further aid and assistance of those who withdraw. The unlawful purpose of him who continues alone is then his own and not one in common with those who are no longer parties to it nor liable to its full and final consequences. This passage has been cited with approval by the Court of Criminal Appeal in England and in Queensland: Reg. v. Becerra and Cooper [9] ; Reg. v. Saylor [10] . 1. [1941] 1 D.L.R. 683, at p. 685. 2. (1975) 62 Cr. App. R. 212, at p. 218. 3. [1963] Q.W.N. at pp. 36-37.

[21]

In the present case, the act of the airline in innocently carrying the cannabis into Australia will be treated as the act of the applicant, who requested the airline to make the carriage, unless the applicant gave a timely countermand, and did all that he reasonably could to ensure that the airline did not act upon his request. There can be no doubt that the telex (Exhibit Q) communicated to the airline a clear revocation of the applicant's request that the goods be carried to Australia. The telex was received in time to make it possible for the airline to retrieve the box if the matter had been regarded as sufficiently urgent, and according to the judge's finding it may have been practicable to retrieve the box even if the airline had no reason to think that the matter was of any particular urgency. On an appeal by way of case stated the court cannot determine questions of fact and it cannot draw inferences from what is stated in the case: see Reg. v. Rigby [14] . An appeal of that kind is generally unsatisfactory, and is particularly so in criminal cases. But having regard to the nature of the appeal it may be assumed (without deciding) that the case could not be concluded against the applicant on the basis that the countermanding of the request was not timely. Nevertheless it is clear that the applicant did not do all that he reasonably could to attempt to prevent the airline from effecting the carriage which he had requested it to perform. He did not disclose to the airline, in his telex, that the box, which he had said contained a stereo receiver, in fact contained cannabis. If he had done so the airline would have become aware of the importance of stopping the carriage, but as things were the airline had no reason to take any extraordinary steps to retrieve and off-load the box. It is easy to appreciate the applicant's reasons for not wishing to state in his telex that the box contained cannabis, but his failure to do so meant that he did not do all that he reasonably could to undo the effect of his request to the airline to carry the box to Australia. In these circumstances the sending of the telex was not sufficient to absolve the applicant from responsibility when the airline, acting upon his previous instructions, brought the box into Australia. The applicant was therefore rightly convicted.

At a glance

Court

Decision date

Before

Source

Judgment (63 paragraphs)

Parties