The Queen v Novakovic & Ors (Rulings 2-4) [2019] VSC 339 (23 August 2019)

	Home \| Databases \| WorldLII \| Search \| Feedback Supreme Court of Victoria

JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATES OF HEARING:	17, 20 & 21 May 2019
DATES OF RULINGS:	17 & 21 May 2019
DATE OF PUBLICATION OF REASONS:	23 August 2019
CASE MAY BE CITED AS:	R v Novakovic & Ors (Rulings 2-4)
MEDIUM NETRAL CITATION:	[2019] VSC 339

CRIMINAL LAW — Joint trial of three accused — Murder and manslaughter — Deceased died as a result of single stab wound spontaneously inflicted with knife by MN during assault in kitchen at restaurant — Liability for murder and manslaughter by statutory complicity — MJ and SJ each alleged to be “a person who [was] involved in the commission of [murder (or manslaughter)]” — Mens rea required of accused who “intentionally assists [or] encourages ... the commission of [murder (or manslaughter)]” — Mens rea required of accused who “intentionally assists [or] encourages ... the commission of [assault] where [that accused] was aware that it was probable that [murder (or manslaughter)] would be committed in the course of carrying out the [assault]” — Crimes Act 1958 (Vic), ss 323-324C.

CRIMINAL LAW — Joint trial — Aggravated burglary — Whether “intent ... to commit an offence ... involving an assault”, for purposes of aggravated burglary, embraces intent to assist or encourage another to commit assault — Crimes Act 1958 (Vic), ss 76, 77 & 320.

CRIMINAL LAW — Joint trial — Affray, murder and manslaughter — Whether case to answer on affray by SJ — Whether open to find SJ’s violence such as to cause any person of reasonable firmness who might witness it to be terrified — Whether latter question may be informed by SJ’s intention — Whether hypothetical bystander’s feeling of terror must be contemporaneous with occurrence of (very brief) act of violence in issue — SJ’s no-case submission on affray rejected — Defence of another to be left to jury on affray against SJ — Whether cases to answer on murder and manslaughter by MJ and SJ — Whether open to find SJ was person seen on CCTV brandishing a knife around time of fatal act of stabbing by MN — Whether open to find SJ’s alleged act of assistance or encouragement (i.e. brandishing a knife) occurred prior to MN’s act of fatally stabbing deceased — No case for SJ to answer on either murder or manslaughter — Whether open to find MJ aware of MN’s act of grabbing knife and intention to stab deceased with it prior to MN’s act of fatally stabbing deceased — MJ’s no-case submission on murder and manslaughter rejected — Criminal Procedure Act 2009 (Vic), ss 226(1)(a) & (c).

Appearances:	Counsel	Solicitors

For the Crown	Mr K Doyle with Ms J Warren	John Cain, Solicitor for Public Prosecutions

For Mr Novakovic	Mr C Mandy SC	Marcevski Lawyers

For Mr M Jovic	Mr P Dunn QC	Emma Turnbull Lawyers

For Mr S Jovic	Mr D Sheales	Emma Turnbull Lawyers

1 Milos Novakovic, Milan Jovic and his brother Sasa Jovic were each indicted jointly in this Court on charges of affray,^[1] aggravated burglary^[2] and murder.^[3]

2 These charges arose out of what started as a melee among patrons at a restaurant and culminated in the stabbing death of a man in the kitchen of the same restaurant a short while later.

3 The murder charge was put against Mr Novakovic as a principal^[4] who, in the course of an assault on Deni Dimovski, grabbed a kitchen knife and stabbed him once to the chest^[5] with murderous intent, killing him in consequence. Manslaughter^[6] was put as an unindicted alternative.^[7]

4 It was alleged that the Jovic brothers were to the left of Mr Novakovic, assisting or encouraging him, during the assault and the fatal stabbing. The murder charge, and manslaughter, were put against each brother as a secondary party^[8] on the two alternative bases of statutory complicity set out in s 323(1)(a) and (b) of the Crimes Act 1958 (Vic) (“the Crimes Act”) (albeit the second basis was later abandoned).

5 The charges of affray and aggravated burglary were put against each accused as individual principals.

6 After the close of the Crown case, counsel for each accused indicated that his client would not be giving or calling evidence.^[9] During the legal discussions that followed,^[10] I distributed to counsel draft outlines of the elements of each of the offences alleged. After hearing oral argument and making some changes to the initial drafts, I indicated that the elements of murder and manslaughter by way of statutory complicity implicit in the resulting final drafts represented my ruling on the requirements of those elements.^[11]

7 In the end, because it was necessary to construe the two heads of complicity relied on under s 323(1)(a) and (b) against the background of and consistently with the other two heads of complicity in s 323(1)(c) and (d), and with each other, I ended up ruling on all four paragraphs, but only as they might apply to ‘intentional’ murder^[12] and manslaughter by unlawful and dangerous act.^[13]

8 At this introductory stage, however, I shall set out only what I ruled with respect to the elements of s 323(1)(a) and (b) as they might relate to murder and manslaughter, and only in the abstract. It should be understood that the following examples are not the only ways in which the elements might be structured. Further, each case will depend upon its own facts and circumstances as to what matters are in issue, which in turn is likely to affect the way in which, and the extent to which, the various elements might be set out. Indeed, as will be seen later, the handouts that were used in the course of discussion in the present case, and the versions that ultimately went to the jury, were different from the outlines that follow, as they had to be adapted to the particular circumstances of the case at hand.

9 Thus, I turn to a precis of my ruling. First, s 323(1)(a) creates a form of liability similar (but not identical) to accessorial liability at common law. Putting to one side, for the moment, the requirement that the act or acts causing death, and also the act or acts of assistance or encouragement, must be committed consciously, voluntarily and deliberately and without lawful justification or excuse,^[14] I formed the view that, in order for a secondary party to be guilty of murder in reliance on s 323(1)(a), the following things must be proved, beyond reasonable doubt, on the evidence admissible against the secondary party:

1) First, the secondary party intentionally assisted, encouraged or directed^[15] the principal to commit an act (such as punching, stabbing, shooting, etc), which act caused the deceased’s death (the secondary party’s “act of assistance, encouragement or direction”).

2) Second, the secondary party, by his act of assistance, encouragement or direction, intended that the principal would commit murder — i.e. would kill the deceased or cause him really serious injury with the intention of killing him or causing him really serious injury.

10 Secondly, s 323(1)(b) creates a hybrid of a narrowed version of extended common purpose liability at common law grafted onto the new statutory version of accessorial liability with respect to the ‘foundational’ offence. I concluded that, in order for a secondary party to be guilty of murder in reliance on s 323(1)(b), the following things must be established:^[17]

1) First, the secondary party intentionally assisted, encouraged or directed the principal to commit an offence (the ‘foundational’ offence) — such as an assault^[18] on the deceased (the secondary party’s “act of assistance, encouragement or direction”).

2) Second, the secondary party, by his act of assistance, encouragement or direction, intended that the principal would commit an assault on the deceased.

3) Third, the principal committed^[19] an assault on the deceased (“the assault”).^[20]

4) Fourth, the secondary party, at the time of his act of assistance, encouragement or direction, was aware that it was probable that, in the course of carrying out the assault, the principal would kill the deceased or cause him really serious injury with an intention to kill the deceased or cause him really serious injury.

5) Fifth, the principal, in the course of carrying out the assault, murdered the deceased.^[21]

11 Thirdly, I concluded that, in order for a secondary party to be guilty of manslaughter in reliance on s 323(1)(a), the following things must be established:

1) First, the secondary party intentionally assisted, encouraged or directed the principal to commit an act (such as punching, stabbing, shooting, etc), which act caused the deceased’s death (the secondary party’s “act of assistance, encouragement or direction”).

2) Second, the secondary party, by his act of assistance, encouragement or direction, intended that the principal would commit an act that was both unlawful (such as an assault) and dangerous (i.e. an act which a reasonable person in the position of the secondary party would have realised would expose the deceased to an appreciable risk of serious injury).

12 Finally, I ruled that, in order for a secondary party to be guilty of manslaughter in reliance on s 323(1)(b), the following things must be established:

1) First, the secondary party intentionally assisted, encouraged or directed the principal to commit an offence (the ‘foundational’ offence) — such as an assault^[24] on the deceased (the secondary party’s “act of assistance, encouragement or direction”).

2) Second, the secondary party, by his act of assistance, encouragement or direction, intended that the principal would commit an assault on the deceased.

3) Third, the principal committed^[25] an assault on the deceased (“the assault”).^[26]

4) Fourth, the secondary party, at the time of his act of assistance, encouragement or direction, was aware that it was probable that, in the course of carrying out the assault, the principal would commit manslaughter — i.e., would commit an act that was both unlawful (such as a more serious assault) and dangerous (i.e. an act which a reasonable person in the position of the secondary party would have realised would expose the deceased to an appreciable risk of serious injury).

5) Fifth, the principal, in the course of carrying out the assault, either:^[27]

13 In each of the four examples above, the issue that necessitated by far the most analysis concerned the secondary party’s state of mind or mens rea with respect to the principal’s offence. This problem was reflected in the second element under each offence alleged pursuant to s 323(1)(a) and the fourth element under each offence alleged pursuant to s 323(1)(b).

14 I should say at once, however, that I reached my conclusions on those elements with a degree of hesitation and uncertainty. While it seemed clear enough that, for the purposes of murder, consistently with their common law roots, paragraphs (a) and (b) of s 323(1) require that the secondary party (based on knowledge or belief) respectively intend that the principal possess, or be aware that it is probable that the principal will possess, murderous intent when performing the act which causes death, it was not so clear that the secondary party must have any intention or awareness that the principal’s act would (or probably would) cause death.

15 Pulling in one direction (i.e. in favour of such a requirement) was the plain meaning of the words used in the new provisions. The illustrations (limited though they were) given in the Explanatory Memorandum to the Bill that ultimately became the Act which inserted these provisions into the Crimes Act were also consistent with that approach. The legislature’s apparent concerns to do away with many of the difficulties that beset the common law of complicity, and to create the four provisions in s 323(1) so as to be internally consistent and simple, were capable of supporting that approach, at least in relation to murder.

16 On the other hand, the legislature’s decision to adopt many common law concepts also caused me to attempt to navigate a path through the glaring anomalies and asymmetries in the common law of complicity when construing these provisions. This factor, in the main, tended away from requiring, of the secondary party, an intention (or knowledge or belief) that death be caused or an awareness that such an outcome was probable. Other important considerations were the need to ensure at least a modicum of symmetry between the requirements for liability for the same offence as a principal on the one hand and as a secondary party on the other, and yet also an appropriate level of disparity between the position required of a secondary party for murder on the one hand and a secondary party for manslaughter on the other.

17 The construction of these provisions is, of course, a matter of great significance to the administration of justice in homicide cases in particular and to the criminal law in general. As it happened, there was a good deal of agreement among the parties as to how these provisions should be construed and applied in the present case. Further, counsel for the Crown, wisely and responsibly in my opinion, were careful to present their case in a way that avoided needless complexity but also ensured a better chance of justice for all concerned. Defence counsel took the same approach.

18 In other cases, however, there might not be the same degree of commonality of views on matters of importance. In such circumstances, while time is usually of the essence, especially in homicide cases (because the accused are usually in custody), it may be that the reservation of a question of law to the Court of Appeal prior to trial would be an appropriate course in order to quell the controversy at hand and gain that Court’s authoritative guidance on these important provisions.^[29]

19 Another question on which I was required to rule concerned the relationship between the complicity provisions and the ulterior intent required for aggravated burglary.

20 In particular, I ruled that an intention to assist or encourage another to assault a person in a building was a sufficient “intent ... to commit an offence ... involving an assault to a person in the building ... which is punishable with imprisonment for a term of five years or more”, for the purposes of s 76(1)(b)(i) of the Crimes Act.

21 Finally, having settled upon the elements of statutory complicity for murder and manslaughter, they formed part of the framework against which I considered submissions that there was no case to answer^[30] on those charges and then formulated the final directions to be given to the jury on the elements of those offences.

22 In the result, I ruled that Sasa Jovic had no case to answer on either murder or manslaughter, but that Milan Jovic had a case to answer on both charges. I also ruled that Sasa Jovic had a case to answer on affray.

23 In the course of making those decisions, I also made some rulings on the elements of affray, which I shall detail later in these reasons.

24 The jury ultimately returned verdicts of guilty of affray against all three accused; verdicts of guilty of aggravated burglary against Milan Jovic and Sasa Jovic (Mr Novakovic had pleaded guilty to that charge); and verdicts of guilty of murder against Mr Novakovic but not guilty of both murder and manslaughter against Milan Jovic. I sentenced Milan Jovic and Sasa Jovic soon after the trial.^[31] Mr Novakovic’s plea in mitigation has since been heard and he is to be sentenced today.^[32]

25 While my essential reasons for ruling as I did on the elements of statutory complicity, aggravated burglary, affray and the no-case applications would be apparent from discussions in argument and my ex tempore reasons delivered orally, I also indicated that, in each case, I would publish more detailed written reasons at a later time. That this was the first time these particular aspects of the elements of statutory complicity had been ruled on at trial, at least with respect to murder and manslaughter, was another factor favouring that course. These are those written reasons.

Ruling 2: Elements of murder (and manslaughter) by way of statutory complicity

26 I turn first to my rulings on the elements of statutory complicity for the purposes of murder and manslaughter.

27 At the close of the Crown case, Mr Dunn QC (counsel for Milan Jovic) and Mr Sheales (counsel for Sasa Jovic) respectively foreshadowed submissions that their clients had no case to answer on either murder or manslaughter. Mr Sheales also foreshadowed a no-case submission on behalf of Sasa Jovic on affray. Mr Doyle (who appeared with Ms Warren for the Crown) indicated that he would be submitting that there was a case to answer on each charge.

28 Prior to consideration of those applications, however, several preliminary matters had to be addressed, including, importantly, the construction of the statutory complicity provisions upon which the Crown relied to establish murder and manslaughter.

29 Before turning to those questions of construction, I shall set out a summary of the evidence and other aspects of the trial.

30 At about 2:10 a.m. on Saturday 9 September 2017, a convivial evening of Balkans music and food, together with a goodly amount of alcohol, was winding up at the Korzo Grill House, in Caroline Springs. Many of the attendees, of whom there were about 50, were invited friends or family of the organisers, who included Deni Dimovski. Others were also allowed to attend.

31 The three accused men arrived at the restaurant, with a larger group, quite late in the evening. They had been there for around two hours or more when a fight broke out among several (male) patrons in the dining room. It seems that the violence erupted over something as trivial as a spilled drink or maybe a glass thrown, a dose of bad manners and far too much testosterone.

32 Whatever the true cause of the ill-feeling, things turned from silly to nasty to violent, and pretty quickly at that. Shirts were grabbed; pushes and shoves were delivered; punches were thrown; furniture was knocked over; a chair and a bottle or two were hurled; headlocks were administered; and men were grabbed by the arms or the shoulders in attempts to drag them away from the fray. Some fell over in the mayhem. And yet others seemed to be interested bystanders, craning their necks for a better view. Some were frightened, perhaps even terrified; others not. Women and children were ushered away from this ugly scene, or were at least warned to stand back.

33 These events in the dining room, as well as aspects of the subsequent goings-on out the front of the restaurant, at the back door and (crucially, but to a more limited extent) inside the kitchen, were captured and recorded by six CCTV cameras. Parts of those recordings went into evidence.

34 It was clear that Milan Jovic threw a chair at one point during the violence.^[33] Shortly after that, Mr Novakovic, Milan Jovic and another were involved in part of the fighting against Mr Dimovski. Mr Novakovic and Milan Jovic each threw multiple punches at Mr Dimovski, and Milan Jovic tried to kick him once. It was, in effect, three onto one for a moment or two.

35 Sasa Jovic picked up a bottle prior to the fighting commencing, when it seemed apparent that things might get out of hand.^[34] He was not physically involved in any violence until towards the end of the melee, when Mr Dimovski and another appeared to be getting the better of Mr Novakovic. At that point, Sasa Jovic came in behind Mr Dimovski and took a step or two towards him, just as he (Mr Dimovski) was attempting to throw a punch at Mr Novakovic. Sasa Jovic then made an overarm swinging motion (a bit like an off-spinner’s delivery of a cricket ball) towards Mr Dimovski’s head. The resulting contact between Sasa Jovic’s wrist and the back of Mr Dimovski’s head or shoulder, if contact it was, caused the bottle to dislodge and fly out of Mr Jovic’s hand without harm.

36 There was also evidence, from some of those who witnessed the fighting, or parts of it, about how they felt. That evidence ranged from fear of death to fear of harm to women and children, and to unspecified fear. Upon closer examination, it became apparent that some of that evidence was informed by the belief (presumably formed much later) that Deni Dimovski had been killed, which could have constituted no part of the affray. The parties agreed that, whatever was to be made of the evidence of the witnesses to the violence in the dining room, the jury would be able to make their own assessment of those relevant events as depicted on the CCTV footage.

37 In view of that and other evidence, it was alleged by the Crown that it was open to find that each of the three accused, to a greater or lesser degree, had committed the (common law) offence of affray (Charge 1).

38 Each accused pleaded not guilty to that charge when arraigned in the presence of the jury panel.

39 It was plain that self-defence — in the sense of defence of another^[35] — would have to be left to the jury in Sasa Jovic’s case, if indeed there was otherwise a case to answer on the charge of affray.

40 After the fighting in the dining room, the three accused and numerous others were ejected or otherwise left the premises of their own volition. The resulting large group of mostly young men milled around outside the front of the restaurant. A bit of unspecified pushing and shoving occurred in that area. There was also evidence that Mr Novakovic kicked the front door of the restaurant, causing damage to a glass panel, and that he yelled three times, “I’m gonna kill him [or them]” (or something similar). Further, there was evidence that Milan Jovic also participated in kicking at the door or the windows and that he too was yelling (although what he said could not be made out). There was no evidence that Sasa Jovic did, was a party to or witnessed any of these things.

41 From among those out the front, at least nine men, including the three accused, moved around to the carpark area at the rear of the restaurant. It was alleged that six of those men, including the three accused, and, later, a seventh, ultimately entered the restaurant’s kitchen through the rear door.

42 Prior to that entry, Sasa Jovic could be seen on the CCTV walking towards the kitchen door, crouching down (apparently, in order to put down a bottle he was holding) and then motioning to others, who came over and gathered outside the door. Shortly afterwards, a woman came to the door from inside the kitchen and made her way outside and past the men to the carpark. Mr Dimovski was also just inside the same kitchen door at that time. Like the woman before him, he had arrived there from inside the building.

43 The first of the seven men to enter the kitchen from the outside was Mr Novakovic. As he did so, he threw a punch or punches at Mr Dimovski. Milan Jovic and then Sasa Jovic followed Mr Novakovic inside in quick succession, as did three other men. Shortly afterwards, one man came out and another man from the original group of nine or so went in.

44 It was alleged against the three accused that they all entered the kitchen as trespassers with the intention of committing an offence involving an assault on a person inside (namely, Mr Dimovski); that he was in fact inside the kitchen at the time of their entry; and that they (the accused) were each aware of (or at least reckless as to) that fact. Those allegations, if established in each case, submitted the Crown, would amount to aggravated burglary (Charge 2).

45 While Mr Novakovic pleaded guilty to that charge upon arraignment before the jury panel, the Jovic brothers each pleaded not guilty.

46 The Crown put the case against the latter two accused on the basis that, at the time of entry, each had an intention to assault Mr Dimovski personally or, alternatively, to assist or encourage Mr Novakovic to do so.^[36]

47 It was further alleged that, once inside the kitchen, Mr Novakovic immediately forced Mr Dimovski backwards, and that somehow he ended up on the floor (on his back) against a stainless steel bench, whereupon Mr Novakovic stood over him and began to assault him further.

48 From the CCTV footage, it could be seen that, within seconds of the commencement of the assault in front of the bench, Mr Novakovic quickly — and, it seems, wholly spontaneously — reached over to his right to the top of the bench with his right hand and grabbed a large kitchen knife, by its handle, from a container. It was alleged that he then used the knife to stab Mr Dimovski twice, once to the chest and once to the upper left arm, in the course of the continuing — albeit brief — fracas that followed.

49 I should point out that the order of those two instances of stabbing was not known, on the evidence, as the view from the CCTV camera did not show Mr Dimovski’s person at all, and therefore did not actually show the stabbings. Instead, it showed only Mr Novakovic and Milan Jovic respectively from behind and from about the head and shoulders upwards. More particularly, in the case of Mr Novakovic, it showed movements consistent with him stabbing downwards at the unseen Mr Dimovski immediately after he grabbed the knife from the bench.

50 At about the time Mr Novakovic and others entered the kitchen, three friends or acquaintances of Mr Dimovski — namely, Jove Dimovski (no relation), Tony Gorsevski and Jimmy Ribarovski (the proprietor of the restaurant) — who had remained inside the restaurant with him after the fighting in the dining room, heard a commotion and came into the kitchen from an internal doorway. They entered the kitchen at about the same time as Mr Novakovic grasped the knife (which was at about 2:16:40 on the CCTV recording). All three ended up positioned on the opposite side of the bench, facing the accused, while the mayhem continued.

51 Those three men all gave viva voce evidence. When their evidence was compared with what could be seen on the CCTV footage, it was plain that those witnesses, to a greater or lesser degree, either failed to observe things right in front of them or confused things they did observe or claimed to see things that they could not have seen. Yet they appeared to me to be honest men doing their best to recall what they had observed. It was therefore a powerful reminder about the fallibility of human perception and/or memory, particularly in fast-moving and shocking circumstances such as these.

52 In any event, there was no dispute that the stabbing to the chest (which penetrated to a depth of about eleven-and-a-half centimetres) also pierced through Mr Dimovski’s heart and into his liver. Nor was there any dispute that, a short time later, he died as a result of that stab wound. This was despite the quick intervention of his friends (who, under instruction from a triple-zero operator, applied pressure to his wounds) and, later, treatment by paramedics.

53 According to the pathologist Dr Victoria Francis, the stab wound to Mr Dimovski’s arm did not make any significant contribution to his death.

54 Given what could and could not be seen from the synchronised CCTV footage from cameras inside the kitchen and outside the back door, together with photographs and measurements, it was apparent that at least six men, plus Mr Dimovski, were crammed inside the kitchen together on one side of the bench at the same time as the three men were on the opposite side of the bench, all for a very short period during this episode.

55 Within seconds of their entry to the kitchen, the six persons (including the three accused) filed back out through the rear door and into the carpark. It was alleged that, on the CCTV footage, Mr Novakovic could be seen discarding in the carpark the knife he used to stab Mr Dimovski. That knife was found later between two parked cars. It was also alleged that Sasa Jovic could be seen in the carpark discarding a knife that he had picked up and brandished when inside the kitchen, although I think that that was difficult to make out. A knife of that type was also found in the carpark later.

56 The Crown case on murder against Mr Novakovic was that, by a conscious, voluntary and deliberate act of stabbing to Mr Dimovski’s chest committed without lawful justification or excuse but with murderous intent, he killed Mr Dimovski. Upon arraignment before the jury panel, Mr Novakovic pleaded not guilty to the charge of murder (Charge 3) but guilty to manslaughter. Thus, the only element in issue was murderous intent.

57 In addition to the stabbing and its surrounding circumstances, the Crown relied on other evidence to prove murderous intent. That evidence included the animus Mr Novakovic had towards Mr Dimovski as demonstrated by his behaviour during the affray; his anger in kicking the door and declaring he was going to kill him; and his decision to enter the kitchen assaulting Mr Dimovski.

58 The parties agreed that manslaughter would also have to be considered in the alternative to murder in the case of each accused. In the case of Mr Novakovic, manslaughter was put against him as a principal offender on the basis of manslaughter by unlawful and dangerous act.^[37]

59 As intimated earlier, the Crown did not allege that either Milan Jovic or Sasa Jovic personally committed any act that caused Mr Dimovski’s death.

60 Instead, it was alleged that Milan Jovic, more than once, punched, kicked or stomped on Mr Dimovski, or tried to do so, when positioned immediately to Mr Novakovic’s left, while the latter was assaulting and then stabbing Mr Dimovski at the front of the bench in the kitchen.

61 In the case against Milan Jovic, the Crown pointed to various pieces of evidence to support the case for murder (and manslaughter), including his arrival at the back door and pulling his hood over his head to disguise himself; his holding of the door open once the woman had walked out and as Mr Novakovic started to throw punches at Mr Dimovski; his entry to the kitchen; his presence in the kitchen when Mr Dimovski was assaulted and ended up on the floor; and his participation in the assault at the bench by punching, kicking or stomping, or attempting to do so.

62 It was also alleged that, at the same time, Sasa Jovic was further to his brother’s left and, as I said a moment ago, brandishing a knife (that he had picked up from a bench to his left) while Mr Novakovic assaulted and stabbed Mr Dimovski. (I should point out that the person alleged to be Sasa Jovic could not be identified directly. In fact, all that could be seen on the CCTV footage was the picking up and brandishing of the knife by a person who may have been wearing a dark cap or who may have had dark hair. Another of the six people inside the kitchen at the relevant time, like Sasa Jovic, wore a black cap. It was this evidence, combined with the CCTV of the alleged dropping of the knife in the carpark, together with a process of elimination, that was said to have amounted to proof that Sasa Jovic was in fact the person brandishing the knife in the kitchen while to the left of Milan Jovic.)

63 In relation to Sasa Jovic, the Crown case on murder (and manslaughter) included evidence of his arrival at the back door, crouching down and signalling to the others, thereby helping to arrange positioning at the door; his waiting there with his co-accused for the door to open; his entry to the kitchen, despite another person (apparently) attempting to hold him back; his presence inside the kitchen when Mr Dimovski was assaulted and forced to the floor; and his picking up of a knife and brandishing it in the direction of the men on the other side of the bench.

64 Based on this alleged behaviour, together with other evidence, the charge of murder was put against the Jovic brothers on the basis that each was “involved in the commission of the offence” and thereby should be “taken to have committed [that] offence”, within the meaning of s 324(1) of the Crimes Act. In particular, it was alleged that each man was involved in the commission of murder because, pursuant to s 323(1)(a), he intentionally assisted or encouraged Mr Novakovic to murder Mr Dimovski or, alternatively, pursuant to s 323(1)(b), he intentionally assisted or encouraged Mr Novakovic to assault Mr Dimovski and was aware that it was probable that Mr Novakovic would murder him in the course of carrying out the assault.

65 While the Crown were initially uncertain as to whether manslaughter should be put against the Jovic brothers under only paragraph (a) of s 323(1), or under paragraph (b) as well, both forms of complicity ended up being pressed, at least until the no-case rulings were made.

66 Both Milan Jovic and Sasa Jovic pleaded not guilty to murder when arraigned before the jury panel. Unlike Mr Novakovic, they did not plead guilty to manslaughter.

67 The particular form the jury directions might take in this case was complicated somewhat by the fact that, on the evidence, there was a powerful argument, at least from the perspective of Milan Jovic and Sasa Jovic, that Mr Novakovic’s grasping of a knife and stabbing Mr Dimovski came completely out of the blue. Indeed, it might be thought that the evidence, at its highest, would prove that Milan Jovic and Sasa Jovic were aware, and intended, that Mr Dimovski would be physically assaulted, perhaps even with some ferocity, with fists and perhaps feet, but not with a knife. Thus, the circumstances were those that, at common law, would raise what has become known in the United Kingdom as “the fundamentally different act rule”.^[38] I shall say more about that rule later in these reasons.

68 It is against that background that the questions of construction and application of the statutory complicity provisions arose. As I indicated earlier, in particular, among the questions raised was precisely what, for the purposes of s 323(1)(a) of the Crimes Act, the Crown must prove to establish that an accused had the necessary mens rea to have intentionally assisted, encouraged or directed the commission of murder or manslaughter.

69 For example, in the present case, where it was alleged that Milan Jovic and Sasa Jovic each intentionally assisted or encouraged^[39] Mr Novakovic to commit murder, was the Crown required to prove that each accused, in assisting or encouraging him, intended, knew or believed that Mr Novakovic, by an act of stabbing, would kill Mr Dimovski with murderous intent (by which I mean either an intention to kill or an intention to cause really serious injury)? Or was it enough that, when intentionally assisting or encouraging Mr Novakovic, the secondary party intended, knew or believed that Mr Novakovic would commit, for example, some act of violence with murderous intent, which act happened to kill? Numerous other variants of these requirements might be considered as well.

70 A like series of alternative possibilities as those considered under s 323(1)(a) arose under the alternative head of statutory complicity relied on in s 323(1)(b). In particular, in order for, say, Milan Jovic to be guilty of murder on this basis, was the Crown required to prove that he was aware that it was probable that, in the course of carrying out an assault upon Mr Dimovski, Mr Novakovic, by an act of stabbing, would kill the deceased with murderous intent? Or was it enough that he was aware that it was probable that, in the course of carrying out that assault, Mr Novakovic would commit some act of violence with murderous intent, which act happened to kill?

71 Similar questions arose with respect to statutory complicity in relation to the unindicted alternative of manslaughter. For example, for the purposes of s 323(1)(a), was the Crown required to prove that each accused, in assisting or encouraging him, intended, knew or believed that Mr Novakovic, by an act of stabbing which, when considered objectively, amounted to an unlawful and dangerous act, would kill Mr Dimovski? Or was it enough that, when intentionally assisting or encouraging Mr Novakovic, Mr Jovic knew or believed that Mr Novakovic would commit an act which, objectively, amounted to an unlawful and dangerous act, which act happened to kill? Again, numerous other variants might be considered as well.

72 Finally, in order for, say, Milan Jovic to be guilty of manslaughter on the basis relied on under s 323(1)(b), was the Crown required to prove that he was aware that it was probable that, in the course of carrying out an assault upon Mr Dimovski, Mr Novakovic, by an act of stabbing that was unlawful and objectively dangerous, would kill him? Or was it enough that he was aware that it was probable that, in the course of carrying out that assault, Mr Novakovic would commit an act which was unlawful and objectively dangerous act, which act happened to kill?

Crown case on elements of murder and manslaughter by complicity, in more detail

73 I turn now to the specifics of what I understood to be the Crown position on the elements of statutory complicity for murder and manslaughter against Milan Jovic and Sasa Jovic.

74 After discussions about the elements of statutory complicity and the evidence led at trial, I understood that the Crown’s preliminary position was as follows.

75 First, for the purposes of s 323(1)(a), the Crown’s position was that proof of the following things would establish murder against Milan Jovic:

1) First, prior to Mr Novakovic’s act of stabbing Mr Dimovski in the chest, Milan Jovic, by punching, kicking or stomping Mr Dimovski (or attempting to do so), while beside Mr Novakovic, intentionally assisted or encouraged Mr Novakovic to murder Mr Dimovski.

76 Secondly, for the purposes of s 323(1)(b), I understood the Crown position to be that proof of the following things also would establish murder against Milan Jovic:

2) Second, Milan Jovic, at the time of his act or acts of assistance or encouragement, was aware that it was probable that, in the course of carrying out the assault, Mr Novakovic would murder Mr Dimovski.

77 Thirdly, turning to manslaughter, as I understood it, the Crown’s position was that, for the purposes of s 323(1)(a), proof of the following things would establish manslaughter against Milan Jovic:

78 Fourthly, I also understood the Crown’s position to be that, for the purposes of s 323(1)(b), proof of the following things also would establish manslaughter:

79 In relation to Sasa Jovic, the Crown’s position on murder and manslaughter pursuant to s 323(1)(a) and (b) was the same as it was in respect of Milan Jovic, except that the first element in each alternative concerned Sasa Jovic’s alleged brandishing of a knife at the men on the other side of the bench while near Mr Novakovic as the intentional act or acts of assistance or encouragement.

80 I should add that the Crown had argued that behaviour prior to the alleged brandishing of the knife would suffice as the necessary assistance or encouragement, but I disagreed. One difficulty was that, while it was open on the evidence to find that Sasa Jovic entered the kitchen with the intention of assaulting Mr Dimovski or assisting or encouraging Mr Novakovic to do so, there was no evidence of what Sasa Jovic did, if anything, once inside the kitchen, before he grabbed and brandished the knife, if indeed he did. Another difficulty was that, whatever Sasa Jovic may have done before brandishing the knife, such behaviour, on the evidence, could not have occurred with an intention to assist or encourage Mr Novakovic to stab Mr Dimovski because his (Mr Novakovic’s) grasping of the knife was so spontaneous and unexpected that Sasa Jovic could not have been — or at least could not be proved to have been — thinking of any such thing before Mr Novakovic’s grasping occurred.

Greater particularity required regarding the secondary party’s state of mind

81 While the foregoing statements of the elements were mostly uncontroversial, the (far) more difficult questions concerned precisely what state of mind the secondary party must have with respect to the principal’s behaviour and the elements of the charged offence, and particularly the causation of death.

82 None of these questions could be answered without considering and construing the new statutory complicity provisions, to which I now turn.

83 I have described them as new, but the truth is that the provisions have been in place for nearly five years. As from 1 November 2014, most aspects of the common law of complicity in Victoria were abrogated and replaced with a series of provisions in the Crimes Act concerning the concept of being “involved in the commission of an offence”.^[41]

84 These changes were effected by the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 (Vic) (“the Amending Act”).^[42]

(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

(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.

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

(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.

(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.

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.

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.

(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.

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.

86 Despite the considerable time that has passed since their commencement, these provisions have featured in the reasons given in relatively few published decisions of this Court or the Court of Appeal.^[43] Further, as far as I can tell, none of those decisions considered squarely the issues raised in this case.

87 In the Explanatory Memorandum to the Bill that became the Amending Act, the following introductory remarks were made with respect to these provisions:^[44]

This Subdivision will improve the substantive law of complicity by introducing simpler, internally consistent laws and abolishing problematic common law rules. These amendments will facilitate simpler, more understandable jury directions on complicity. These issues were comprehensively examined in the “Simplification of Jury Directions Project” report produced by a team [led] by the Honourable Justice Mark Weinberg in August 2012. The Bill draws extensively from the recommendations in that report to reform the law of complicity.

88 Later in these reasons, I shall return, in particular, to the legislature’s expectation that these provisions “will improve the substantive law of complicity by introducing simpler, internally consistent laws and abolishing problematic common law rules“ and that they “will facilitate simpler, more understandable jury directions”.^[45]

89 It is evident that, in many respects, these provisions have been modelled on the common law of complicity. In other respects, however, they are quite different from the common law doctrines. As the Explanatory Memorandum makes clear, these are deliberate choices.

90 To take an obvious similarity, by use of the words “intentionally assists, encourages or directs the commission of an offence”, s 323(1)(a) employs language reminiscent of (albeit not wholly identical to) accessorial liability at common law, i.e. liability by way of aiding, abetting, counselling or procuring.^[46] Thus, in Giorgianni v The Queen,^[47] Wilson, Deane and Dawson JJ said that “[a]iding, abetting, counselling or procuring the commission of an offence requires the intentional assistance or encouragement of the doing of those things which go to make up the offence”.^[48]

91 Further, the form of liability set out in s 323(1)(c) — “an agreement, arrangement or understanding with another person to commit the offence” — picks up at least part of the language of joint criminal enterprise (or acting in concert or common purpose) at common law.^[49]

92 And the terms of s 323(1)(d) — which speak of a person who “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” — sound very much like extended common purpose liability (sometimes called extended joint criminal enterprise).

93 As we shall see, unlike the position at common law in the United Kingdom,^[50] where the doctrine (known there as “parasitic accessory liability”) no longer exists, the High Court recently rejected a challenge to the existence of the doctrine as part of the common law of Australia.^[51]

94 One of the more striking differences, however, is that s 323(1)(d) introduces the requirement that the accused must be “aware that it was probable that the offence charged would be committed”, whereas extended common purpose at common law requires only foresight of the possibility of the charged offence being committed.^[52]

95 Another difference is that, in s 323(1)(b), this modified form of extended common purpose liability is expressly grafted on to the new equivalent of common law accessorial liability found in s 323(1)(a) with respect to the commission of the foundational offence.^[53]

96 Yet another difference is that, to the extent that some doctrines of complicity at common law were thought to have required the secondary party to be physically present when the offence was committed,^[54] s 323(3)(a) makes it clear that there is no longer any such requirement.

97 At this point, I shall make some further preliminary observations, which, I expect, are uncontroversial.

98 Given the terms of s 324(1), all of the provisions of s 323(1) contemplate proof, in the secondary party’s case, of the commission of the offence by another (or perhaps others), whom I have been describing as the principal. Put another way, liability under s 324(1) is derivative.^[55] Were it otherwise, a secondary party would be liable on an inchoate basis without reference to the principal’s offence.

99 Equally, however, s 324A makes it clear that the secondary party may be found guilty of the offence whether or not the principal is prosecuted for or found guilty of the offence.^[56] The latter situation may arise where the evidence in the case against the principal is insufficient to establish guilt against him whereas there is ample proof of the principal’s commission of the crime in the evidence admissible against the secondary party.^[57] This might occur where, say, the secondary party makes, but the principal does not make, admissions that the principal committed the offence.

100 That there are similarities and differences between the new provisions and the common law is, I think, a matter that must inform the interpretation of the new provisions.

101 In addition, it is as well to note a couple of other important considerations relevant to this particular task of statutory construction.

102 First, while the Crown in this case relies only on paragraphs (a) and (b) of s 323(1), nevertheless, consistently with the sentiments in the opening sentences of the extract from the Explanatory Memorandum set out earlier, the four^[58] separate categories of liability created by s 323(1) should be interpreted so as to be as internally consistent, and as simply, as is reasonably possible. Thus, regard must be had to the terms of paragraphs (c) and (d) of s 323(1) in considering the meaning of paragraphs (a) and (b), and vice versa.

103 Secondly, back in 1976, Gibbs J observed that, in determining the meaning of a penal statute, the ordinary rules of construction must be applied, but that, if the language of the statute remains ambiguous or doubtful, the doubt or ambiguity may be resolved in favour of the subject by refusing to extend the category of criminal offences.^[59] The rule, however, is one of last resort.^[60] Further, as has been noted by Herzfeld, Prince and Tully more recently, however, in their work Interpretation and Use of Legal Sources:^[61]

The principle is weaker than the historical rule that a “strict construction” of penal statutes was required. On that view, if a penal statute was reasonably capable of two meanings, one of which was more favourable to the accused than the other, the former was to be adopted. Nevertheless, it is still often said that penal statutes are subject to a requirement of “strict construction”, as a shorthand for the approach described in this paragraph. The approach has also been described as reflecting a “principle against doubtful penalisation”.

Section 323(1)(a): Assists, encourages or directs the commission of an offence

104 I turn now to s 323(1)(a). As we have seen, that paragraph provides that a person is involved in the commission of an offence if the person “intentionally assists, encourages or directs the commission of the offence”.

105 As I have said, one of the many questions raised by the terms of s 323(1)(a) concerns what the secondary party must intend, know or believe — i.e. what mens rea he must have — in order intentionally to assist, encourage or direct the commission of the offence by the principal.

106 That in turn prompts the question whether the secondary party’s state of mind, when assisting, encouraging or directing, must be concerned with his own intention that the crime be committed, or with the actions of the principal, or (in the case of ‘result’^[62] crimes) with the forbidden result to be caused by the principal (or some lesser result), or with the principal’s mens rea which accompanies his actions and/or causation of the forbidden result, or with some combination of these things.

107 Given that it appears that s 323(1)(a) was modelled, in large part, on the common law of accessorial liability, I considered it necessary to consider just how it was that the common law answered questions of the type thrown up by this case.

108 As we shall see, however, I think it is fair to say that the common law’s approach in principle, and its answers in practice, to these questions, have been inconsistent, which was of some significance in construing s 323(1)(a).

109 That said, whatever the state of the common law might be, there must be an attempt, at least as a starting point, to construe paragraph (a) according to its own terms.

110 Uninstructed in the common law of complicity generally or accessorial liability in particular, but cognisant of the elements of murder,^[63] one reading — and, I think, a natural reading — of the provision in the case of murder would be that the secondary party must intentionally assist, encourage or direct the principal in the knowledge or belief that the principal is engaging in, or will engage in, an act (or an act of the type) that will kill the deceased, and that the principal will do so with murderous intent. This construction also would require that the secondary party, by his assistance, encouragement or direction, must intend to bring about the commission of the offence, including the killing of the deceased. Given that ignorance of the law is no excuse,^[64] the secondary party need not know or believe that what he or the principal is doing is a crime. But he must know or believe that what he is intentionally assisting, encouraging or directing the principal to do is something which will go to make up the actions, results and intention which, as it happens, form the factual bases for the elements of the offence, and he must intend to bring about the commission of the offence, including its forbidden result.

111 On this construction, and putting aside (for the sake of brevity) the requirements that any proscribed act or omission must be committed consciously, voluntarily and deliberately and without any lawful justification or excuse, the elements required to be proved in order to establish murder against the secondary party might be set out in the following (shorthand) way:

1) The secondary party (i) intentionally assisted, encouraged or directed the principal to kill the deceased (ii) while knowing or believing and intending that the principal would kill the deceased with murderous intent.

2) The principal murdered the deceased — which is to say that the principal killed the deceased with murderous intent.

112 It was the second part of the first of these two elements, as framed, that gave rise to the major issue in this case, for it is that part which concerns the secondary party’s state of mind vis-à-vis the principal’s commission of murder.

113 In my view, there must be some relationship between the secondary party’s intentional assistance, encouragement or direction, his state of mind vis-à-vis the commission of the offence and the principal’s behaviour in committing the offence. I hasten to add that, in saying this, I do not mean that there must be a “but for” causal relationship between the secondary party’s assistance, encouragement or direction and the principal’s crime. Indeed, s 323(2) expressly provides that, “[i]n 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”. I assume that it was thought unnecessary to include equivalent provisions concerning the effectiveness or otherwise of a secondary party’s “assistance” of or “direction” to the principal.^[65] What I do mean, however, is that it seems arguable that the foregoing construction is also consistent with, and affected by, the particular adverb and verbs used in the phrase “intentionally assists, encourages or directs the commission of the offence”.

114 Thus, as a matter of ordinary usage, intentionally to direct the commission of the offence of murder suggests that the secondary party, when giving the necessary direction, intends that the principal will commit murder. That seems plain enough. More particularly, on the face of it, those words seem to mean that the secondary party is intentionally directing the principal to kill with the intention of killing. This in turn suggests that the secondary party must know or believe and intend, when giving his direction, that the principal will kill the deceased and that the principal will do so with an intention to kill (or perhaps with an intention to cause at least really serious injury, given that that is an alternative intent that will be a sufficient mens rea for murder by a principal).

115 Put another way, a secondary party who intentionally directed a principal simply to assault another, without knowing or believing or intending that the principal would kill, does not, as a matter of ordinary language, strike me as one who has intentionally directed the principal to commit murder, even if the principal does in fact commit murder. It might come closer to that description if the secondary party knew or believed and intended that the principal would act with murderous intent — i.e. an intention to kill or to cause really serious injury. But, surely, the essence of intentionally directing a principal to commit murder — a necessary element of which offence is the killing of another human being — is the secondary party’s knowledge or belief that the principal will kill (with murderous intent), as well as his (the secondary party’s) intention to bring about that behaviour and that result by his direction.

116 While they are perhaps less emphatic verbs, to assist and to encourage are capable of being construed in essentially the same way — i.e. intentionally to assist or encourage another to commit murder is to say that, when he is assisting or encouraging the principal, the secondary party knows or believes and intends that the principal will kill the deceased with the intention of killing him (or with the intention of causing him at least really serious injury).

117 If, instead of these constructions, by the words “intentionally assists, encourages or directs the commission of the offence [of murder]”, the legislature had meant, say, that the secondary party will be guilty of murder if he merely intentionally assists, encourages or directs a principal to commit some act of violence against another knowing that the principal had an intention to kill or cause really serious injury, and the principal went on and murdered the person, then it might be thought, reasonably, that the legislature would have said something along those lines, and in clear terms.

118 On the other hand, it might be said that, given that the terms of paragraph (a) largely reflect the common law, it would be expected that the courts would construe this provision with the common law in mind.

The Australian common law’s approach to the accessory’s intent in principle

119 Thus, I turn now to some aspects of the common law’s approach to accessorial liability in principle.

120 The common law of Australia has insisted on several requirements to establish a person as an accessory to a principal’s crime, at least two of which appear to be germane to the accessory’s state of mind.

121 First, the law considered that the verbs to aid, abet, counsel and procure were all instances of the one general idea, namely that the accessory:^[66]

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.

122 These are the words of Cussen ACJ in R v Russell,^[67] which were referred to with approval by Gibbs CJ (at least in part) and Mason J (in full) in Giorgianni v The Queen,^[68] a seminal decision in this country on accessorial liability.

123 Secondly, also in Giorgianni, it was said that the “necessary intent is absent if the [accessory] does not know or believe that what he is assisting or encouraging is something which goes to make up the facts which constitute the commission of the relevant criminal offence”.^[69] This requirement is also discussed in some detail, particularly in the majority judgment of Wilson, Deane and Dawson JJ.^[70]

124 In Giorgianni, the High Court considered whether the owner of a coal truck with defective brakes could be liable as an accessory for offences of culpable driving causing death and culpable driving causing grievous bodily harm, pursuant to ss 52A and 351 of the Crimes Act 1900 (NSW). Also in issue was whether the trial judge’s directions to the jury on the mens rea for accessorial liability were in error.

125 On the occasion in question, the coal truck, driven by the owner’s employee Mr Renshaw, ran out of control on a steep incline because its brakes, which were defective, failed. Mr Fraser, the driver of a Volvo truck on the same road, deliberately placed his truck in the path of the coal truck in an attempt to stop its progress. The two vehicles collided, but the effect of the collision was to damage the steering of the coal truck, which then careered out of control into other cars, killing five occupants and seriously injuring another. At trial, the owner disputed that, as a result of his inspection of the truck a fortnight earlier, he knew, or ought to have been aware, of the defective condition of the brakes.

(1) Where the death of, or grievous bodily harm to, any person is occasioned through—

(d) the impact of a motor vehicle with any vehicle or other object in, on or near which that person was at the time of impact,

and the motor vehicle was at the time of the impact ... being driven by another person—

the person who was so driving the motor vehicle shall be guilty of the misdemeanour of culpable driving.

Any person who aids, abets, counsels, or procures, the commission of any misdemeanour, whether the same is a misdemeanour at Common Law or by any statute, may be indicted, convicted, and punished as a principal offender.

128 All members of the Court held that the owner could commit the offence in s 52A by way of the accessorial liability described in s 351.^[71] Just as importantly, for present purposes, all members of the Court also held that the trial judge was in error in directing the jury to the effect that it was sufficient, for the purposes of such accessorial liability, if the owner was reckless or negligent as to the defective condition of the brakes. Instead, it must be proved that he knew all the circumstances which made what was done an offence, which included knowledge of the defective brakes^[72] (even though proof of such knowledge would not be required to establish the offence against the driver).

129 Towards the end of his judgment, Gibbs CJ summed up his view of the law “very shortly”:^[73]

No one may be convicted of aiding, abetting, counselling or procuring the commission of an offence unless, knowing all the essential facts which made what was done a crime, he intentionally aided, abetted, counselled or procured the acts of the principal offender. Wilful blindness, in the sense that I have described it, is treated as equivalent to knowledge but neither negligence nor recklessness is sufficient.

130 In a separate judgment, Mason J expressed his agreement with the Chief Justice, including as to wilful blindness.^[74]

131 In their joint judgment, Wilson, Deane and Dawson JJ also said that “knowledge of the essential facts of the principal offence is necessary before there can be intent”.^[75] While it was accepted that it may be a proper inference from the fact that a person has deliberately abstained from making an inquiry about some matter that he knew of it, it was nevertheless “actual knowledge which must be proved and not knowledge which is imputed or presumed”.^[76] In a famous passage, their Honours went on to state the general principle in the following way:^[77]

For the purposes of many offences it may be true to say that if an act is done with foresight of its probable consequences, there is sufficient intent in law even if such intent may more properly be described as a form of recklessness. There are, however, offences in which it is not possible to speak of recklessness as constituting a sufficient intent. Attempt is one and conspiracy is another. And we think the offences of aiding and abetting and counselling and procuring are others. Those offences require intentional participation in a crime by lending assistance or encouragement. They do not, of course, require knowledge of the law and it is necessary to distinguish between knowledge of or belief in the existence of facts which constitute a criminal offence and knowledge or belief that those facts are made a criminal offence under the law. The necessary intent is absent if the person alleged to be a secondary participant does not know or believe that what he is assisting or encouraging is something which goes to make up the facts which constitute the commission of the relevant criminal offence. He need not recognise the criminal offence as such, but his participation must be intentionally aimed at the commission of the acts which constitute it. It is not sufficient if his knowledge or belief extends only to the possibility or even probability that the acts which he is assisting or encouraging are such, whether he realises it or not, as to constitute the factual ingredients of a crime. If that were sufficient, a person might be guilty of aiding, abetting, counselling or procuring the commission of an offence which formed no part of his design. Intent is required and it is an intent which must be based upon knowledge or belief of the necessary facts. To the extent that R v Glennan^[78] suggests the contrary, it is not, in our view, in accordance with principle and does not correctly state the law.

132 These two sets of requirements (i.e., being linked in purpose with the principal and doing something to bring about the commission of the crime, on the one hand, and knowledge or belief with respect to “the essential facts” or “the factual ingredients” of the crime, on the other), when read together, might be thought to focus the accessory’s intention and purpose on the facts that will form the basis of the elements of the principal’s offence, and that that intention must be based on knowledge of, or belief in, the existence of the facts necessary to make out the elements.

133 If that is correct, it suggests that, in order for an accessory to be guilty of a result crime such as murder, the Crown must prove the following things:

1) First, the accessory knew or believed (and perhaps intended) that the principal (by whatever specified behaviour) would kill the deceased with murderous intent.

2) Second, with that knowledge or belief, the accessory intentionally assisted or encouraged the principal to kill the deceased with murderous intent.

134 That that might be the way in which the reasoning in Giorgianni should be understood and applied to murder might be thought to be all the more compelling a view when regard is had to the following remarks of Gibbs CJ in the same case:^[79]

Further, as has already been indicated, the person charged must have intended to help, encourage or induce the principal offender to bring about the forbidden result. ...

The Australian common law’s approach to the accessory’s intent in practice

135 As we shall see, however, this is not how Giorgianni has been applied, either in this State in respect of offences such as murder and recklessly causing serious injury, or in New South Wales in respect of the offences of maliciously inflicting grievous bodily harm with intent and without intent. Nor did the High Court think those principles went so far in Giorgianni itself, at least in cases of culpable driving and manslaughter.

136 Thus, in Likiardopoulos v The Queen,^[80] the Court of Appeal of this State held that, to be guilty of murder by way of accessorial liability (in particular, counselling or procuring) at common law, it was sufficient if, inter alia, in that particular case — where the deceased was killed as a result of a series of assaults committed by more than one principal — the alleged accessory intentionally assisted or encouraged the principals to assault the deceased knowing or believing that the principals would commit the assaults with the intention of causing really serious injury.^[81] There was no need to prove that the accessory knew or believed that the actions of the principals would in fact cause death.^[82]

137 The Court of Appeal took this view despite the fact that, as can be seen from the extract from the plurality judgment in Giorgianni^[83] set out earlier, Wilson, Deane and Dawson JJ, when speaking of the required intention for accessorial liability, equated aiding, abetting, counselling and procuring with attempt and conspiracy.^[84] Those latter two doctrines, when applied to murder, require proof respectively of an intention to kill^[85] and of an agreement and an intention to kill, unlike the complete offence, which requires proof against a principal of either an intention to kill or an intention to cause really serious injury.

138 While the point was not taken on the appeal to the High Court in Likiardopoulos, nevertheless, Gummow, Hayne, Crennan, Kiefel and Bell JJ, in the following passage from their joint judgment, might be thought implicitly to have endorsed the way in which the accessorial basis for liability was left to the jury at trial:^[86]

In particular, the accessorial case relied on evidence that the appellant directed and encouraged others to assault the deceased. On the accessorial case, the appellant’s guilt of murder would be established by proof that one or more persons assaulted the deceased intending to do him really serious injury, and that with knowledge of those facts, the appellant intentionally assisted or encouraged that person or those persons in the commission of the fatal assaults.^[87]

139 Similarly, in Giorgianni itself, despite the requirement of knowledge of or belief in the existence of the facts constituting the offence, Mason J accepted the view that the offence of culpable driving under ss 52A and 351:^[88]

does not require proof that the alleged accessory had any knowledge or intention concerning either the impact of the truck with another vehicle or the occasioning of death or grievous bodily injury even though these matters must be proved to establish the defence.^[89] The reason is that the actions of both the principal offender and the secondary party under s 52A are complete where the vehicle is driven in a manner dangerous to the public. The circumstance that liability attaches under the section only where that manner of driving carries certain consequences, which are the natural and probable results of such driving, does not relieve the secondary party of culpability merely because he has no knowledge of those consequences.

140 Wilson, Deane and Dawson JJ reasoned to the same result by reference to involuntary manslaughter. Thus, after observing that there may have been a time when there was some basis for the proposition that there is no offence known to the law of being an accessory before the fact to involuntary manslaughter (because of “the notion that a man cannot counsel or procure what he does not intend and he cannot intend an accidental killing”),^[90] nevertheless, their Honours went on to say, by reference to various later authorities,^[91] that the common law today is that such an offence can be committed.^[92] In particular, their Honours referred^[93] to the following passage from the English Court of Criminal Appeal’s judgment in R v Creamer:^[94]

A man is guilty of involuntary manslaughter when he intends an unlawful act and one likely to do harm to the person and death results which was neither foreseen nor intended. It is the accident of death resulting which makes him guilty of manslaughter as opposed to some lesser offence such as assault, or, in the present case, abortion. This can no doubt be said to be illogical, since the culpability is the same, but nevertheless, it is an illogicality which runs throughout the whole of our law, both the common law and the statute law. A comparatively recent example is that of dangerous driving. Bearing that in mind, it is quite consistent that a man who has counselled and procured such an illegal and dangerous act from which death, unintended, results should be guilty of being an accessory before the fact to manslaughter.

141 Immediately after that extract, their Honours concluded the matter in this way:^[95]

That seems to us to be an accurate statement of the law and it follows that, although a person cannot aid, abet, counsel or procure the commission of an offence, even a statutory offence of strict liability, without intent based upon knowledge of the essential facts which constitute the offence, the requisite intent and knowledge do not, in the case of culpable driving, extend to the occurrence of death or grievous bodily harm which “ensues upon” the unlawful act the commission of which was aided, abetted, counselled or procured.

142 Before moving to two final decisions, I should note the remarks of Brennan J in Yorke v Lucas.^[96] After referring to passages from the judgment of Lord Goddard CJ in Johnson v Youden^[97] and the plurality judgment in Giorgianni,^[98] his Honour said this:^[99]

Their Honours [namely, Wilson, Deane and Dawson JJ] confine the requirement of intention, and thus the requirement of knowledge, to “the commission of the acts which constitute” the offence. Another question, which their Honours considered earlier in their judgment, is the requirement of intention in a secondary participant with respect to the result of the acts which constitute the offence when the occurrence of the result is an element of the offence — e.g., death in the crime of involuntary manslaughter. Whether a secondary participant is criminally liable in all such cases without knowledge of the result if the offence is so defined that knowledge or foresight of the result is not required of the principal offender is a question which does not now arise ...

143 It strikes me that, in making those remarks, Brennan J recognised, and left open, the possibility that there may be some cases in which, for liability to arise, an accessory may have to be proved to have been aware of the result to be caused by the principal, even if knowledge or foresight of the result need not be proved against the principal.^[100] Further, his Honour’s remarks might also be taken as implying that, where the principal offender must be proved to have intended or foreseen a result, the secondary party must be shown to have known or believed that the principal held that intention or foresight. The first point would be inconsistent with the reasoning in Likiardopoulos and, as we shall see, R v Stokes & Difford,^[101] whereas the latter would be consistent with those two decisions.

144 I turn now to Stokes & Difford. In that case, the New South Wales Court of Criminal Appeal, led by Hunt J (with whom Wood J and McInerney J agreed), said the following in respect of accessorial liability for the crimes of maliciously inflicting grievous bodily harm without intent and maliciously inflicting grievous bodily harm with intent:^[102]

In relation to an accessory to the crime of maliciously inflicting grievous bodily harm without intent, therefore, the Crown must establish (in addition to the commission of the crime by the principal offender) that such accessory present at the time (aiding and abetting) knew or was aware:

i. of the principal offender’s intention to do the act which caused the grievous bodily harm (but not that it would in fact cause such harm), and

In relation to an accessory to the crime of maliciously inflicting grievous bodily harm with intent, the Crown must establish (in addition to the commission of the crime by the principal offender) that such an accessory knew as well that that act of the principal offender would be done by him with an intention to cause grievous bodily harm (but, again, not that it would in fact cause such harm). ...

145 Thus, in Hunt J’s view, while the accessory must be aware of the principal’s intention to commit the act that caused the proscribed result and of any intention (or malice) that the principal must possess with respect to the proscribed result, he need not be aware that the principal’s act would cause that result.

146 In the course of his reasons, Hunt J gave close consideration to the judgments in Giorgianni and other authorities.^[103] While this part of his Honour’s judgment is rather long and detailed, it is as well to set out at least part of his analysis, since it is, in my respectful opinion, very instructive:^[104]

To establish that an accused is an accessory to the commission of a crime by another person (whether or not he is a co-accused) by aiding and abetting him, the Crown must establish:

3) that (subject to an exception which I discuss later) the accused knew all the essential facts or circumstances which must be established by the Crown in order to show that the crime was committed by the principal offender (whether or not the accused knew that they amounted to a crime), and

4) that, with that knowledge, he intentionally assisted or encouraged the principal offender to commit that crime.

The accessory’s intention to assist or encourage the principal offender must be based upon that knowledge. ...

Although some of the older authorities suggest that the accused need be aware of only the physical acts done by the principal offender, it is now clear that he must be aware also of the existence of any state of mind on the part of the principal offender which must be established by the Crown to show that the crime was committed by him.

The exception to which I have referred in the third proposition is discussed in Giorgianni ... The required intention and knowledge of the accessory does not extend to the consequences of the principal offender’s act. Hence in relation to the crime of culpable driving, as it was held in that case, the accessory need not be aware that the death or grievous bodily harm to the victim was or would be occasioned by the impact of the motor vehicle being driven at the time by the principal offender under the influence or in a manner dangerous to the public.

Giorgianni’s case makes it clear that the absence of any intention on the part of the principal offender that death would result from his unlawful act does not excuse the accessory from criminal liability in relation to such a crime as culpable driving or (involuntary) manslaughter based upon that unlawful act. It had been argued in the past that he could be an accessory only to the crime constituted by the unlawful act, but it was held by the High Court that the consequence of death which converted what would otherwise have been one crime by the principal offender (based upon the unlawful act) to another and more serious offence (for example, culpable driving or manslaughter) was applicable also to the crime committed by the accessory.

In relation to both types of accessory [i.e. aiders and abettors present at the time of the offending on the one hand and counsellors or procurers as accessories before the fact on the other], it seems to me, it is usually more appropriate to speak of the accessory’s knowledge (or awareness) of the principal offender’s intention to do an act with a particular state of mind when the accessory aids, abets, counsels or procures the principal offender to commit the crime in question than it is to speak of the accessory’s knowledge of the act done by the principal offender with that state of mind. The knowledge will usually crystallise in the accessory’s mind before he involves himself as an accessory to that crime.

In the case of an accessory who is present and who intentionally gives the principal offender assistance and encouragement in relation to his commission of that crime, it may well be that either or both of them has or have already been involved in an assault upon the victim. The accused charged with being an accessory — having become aware of the principal offender’s intentions no doubt by reason of his involvement in the assault up to that time — only at that stage, and with that knowledge, intentionally assists and encourages the principal offender — for example, by himself continuing to assault the victim. That was the basis for the decision in Mohan.^[105] But even in such a case, it is strictly with the accessory’s awareness of the principal offender’s intentions for the future that he then encourages and assists him, rather than with his awareness (except in the loosest sense) of the actions done by the principal offender in the past.

147 Later in his reasons, after opining that it should never have been part of the Crown case on maliciously inflicting grievous bodily harm without intent that the accessory intended that the principal should inflict grievous bodily harm upon the complainant or that the accessory himself acted maliciously towards the complainant, Hunt J went on to say this:^[106]

... An accessory’s intention is to assist and encourage the principal offender in the commission of the crime; it is positively confusing to speak of an accessory’s intention towards the victim.

148 While I respectfully disagree that it is confusing to speak of an accessory’s intention towards a victim, these are the remarks of a judge of great eminence in the criminal law who, after close analysis of the key authorities, reached a reasoned and principled view (and with the concurrence of two other leading judges of an intermediate appellate court, no less). As will be seen below, however, more recently, the Supreme Court of the United Kingdom has entertained a contrary view of an accessory’s intention towards a victim, at least in some cases.

149 Finally, in R v Le Broc,^[107] the Court of Appeal of this State considered the mens rea required of an accused alleged to have been an accessory, by way of aiding and abetting, to the commission of the statutory offence of recklessly causing serious injury (another result crime).^[108] It had been declared authoritatively by the Court on a previous occasion that, in order to be guilty of recklessly causing serious injury, in addition to causing serious injury, a principal offender must know or believe that his actions will probably cause serious injury.^[109] The direction given to the jury at the trial in Le Broc in respect of accessorial liability, however, was to the effect that it must be established that, at the time of aiding and abetting the principal, the accessory “foresaw that serious injury was a probable result”.^[110] The Court rejected a submission, based on the reasoning of the plurality in Giorgianni, that, despite the (lesser) mens rea required for liability as a principal offender, it was necessary to prove, inter alia, that the accessory knew or believed that, by his actions, the principal would cause (not would probably cause) serious injury.^[111]

150 Several points might be taken from Le Broc. First, the decision stands as an endorsement of the proposition that, while the accessory need not know or believe that the principal will cause the proscribed result, he must at least foresee that the proscribed result was probable. (This, of course, is inconsistent with the reasoning in respect of a like offence in Stokes & Difford.)

151 Secondly, what must be foreseen by the accessory and the degree of foresight (namely, foresight of the probability of serious injury) were the same as required to inculpate the principal, albeit it was the accessory’s — not the principal’s — foresight of what the principal would cause that was germane to the case against the accessory.

152 Thirdly, the Court recognised that, on the one hand, the reasoning in Stokes & Difford supported the conclusion that the accessory need not be aware that the principal’s actions would cause the proscribed result and yet that, on the other, the same decision also supported an argument that the jury directions given at Mr Le Broc’s trial were defective in failing to require proof that the accessory knew or believed that the principal foresaw that serious injury would probably result from his actions.^[112]

153 I turn briefly to some of the leading authorities on accessorial liability in the United Kingdom.

154 One of the earlier cases is Johnson v Youden,^[113] where Lord Goddard CJ said that the accessory must “at least know the essential matters which constitute [the] offence”.^[114] This was described by Mason J in Giorgianni as “[t]he classic statement of the position”.^[115]

155 However, in the same way that courts in Australia have struggled with which elements of a charged offence fall within the scope of “the essential facts” or “the factual ingredients of a crime” (or similar phrases employed in Giorgianni), so too have courts in the United Kingdom made inconsistent statements concerning the reach of Lord Goddard CJ’s concept of “the essential matters which constitute [the] offence”. Thus, writing in 2005, in its consultation paper entitled “A New Homicide Act for England and Wales?”, the Law Commission bemoaned the difficulty of:^[116]

pinpointing the precise state of mind necessary for secondary liability [for murder] from the case law. No one case explicitly sets out a general test, and the cases from which a general rule may be inferred are not consistent.

156 The Commission nevertheless summarised the position in this way. For a secondary party^[117] to be liable on the basis of encouragement or assistance provided during or in advance of the principal offence, it seems that he must know or believe, inter alia, that the principal is committing or will commit the actus reus of the principal offence with the requisite mens rea for primary liability.^[118]

157 Further, in its 2007 report entitled “Participation in Crime”, the Commission said that, if the principal offender, in order to be convicted of an offence, is required to have a particular state of mind, then his state of mind is an essential matter of which the secondary party must have knowledge (or a belief).^[119]

158 If those propositions are to be taken as read, then, for the purposes of murder, the accessory would have to know or believe that the principal is killing or will kill the deceased, and that the principal will do so with an intention to kill or cause really serious injury, because causation of death is part of the actus reus of murder and murderous intent is the requisite mens rea.^[120]

159 In the Commission’s view,^[121] the decisions in which it had been held that it was sufficient if the accessory realised that there was “a real possibility” or “a strong possibility” that the principal would commit murder^[122] had in fact relied on authorities concerning what has become known in the United Kingdom as “parasitic accessorial liability”^[123] (or what in Australia is called extended common purpose liability), such as Chan Wing-Siu v The Queen^[124] and R v Powell.^[125] (These cases will be addressed later in these reasons.) As a result of these and other decisions, in the Commission’s opinion, courts, without the need to do so, had departed from Johnson v Youden and created at least four different tests for determining an accessory’s liability: contemplation of a probability, a strong possibility, a real possibility and a likelihood.^[126]

160 More recently, in 2016, speaking for the Supreme Court of the United Kingdom in R v Jogee,^[127] Lord Hughes and Lord Toulson,^[128] early in their joint judgment, stated the law as follows:^[129]

[9] Subject to the question whether a different rule applies to cases of parasitic accessory liability [which their Lordships dealt with later in the judgment], the mental element in assisting or encouraging is an intention to assist or encourage the commission of the crime and this requires knowledge of any existing facts necessary for it to be criminal: ... .

[10] If the crime requires a particular intent, [the accessory] must intend to assist or encourage [the principal] to act with such intent. [The accessory’s] intention to assist [the principal] to commit the offence, and to act with whatever mental element is required of [the principal], will often be co-extensive on the facts with an intention by [the accessory] that that offence be committed. Where that is so, it will be seen that many of the cases discuss [the accessory’s] mental element simply in terms of intention to commit the offence. But there can be cases where [the accessory] gives intentional assistance or encouragement to [the principal] to commit an offence and to act with the mental element required of him, but without [the accessory] having a positive intent that the particular offence will be committed. That may be so, for example, where at the time that encouragement is given it remains uncertain what [the principal] might do; an arms supplier might be such a case.

161 These statements of principle seem to be closer to the view that, to be liable for murder, an accessory must know or believe (and perhaps intend) that the principal (by whatever specified behaviour) will kill the deceased with murderous intent; and that, with that knowledge or belief, the accessory intentionally assists or encourages the principal to kill the deceased.

162 However, as will be seen shortly, their Lordships, when restating the law later in the judgment, did not seem to think that the accessory need have any intention to bring about death, although that was a form of intention that would suffice in substitution for an accessory’s intention that the principal act with murderous intent.

163 I return briefly to the Commission’s report of 2007. In that report, the Commission went on to discuss a series of authorities, including R v Powell^[130] and R v Rahman,^[131] concerning what has become known as “the fundamentally different act” rule.^[132]

164 Powell concerned two separate matters. In one, Mr English (who was only 15) and the principal (another young man) had agreed to attack a police officer using wooden posts. In the course of the attack, the principal pulled out a knife, of which Mr English maintained he was unaware, and killed the police officer.^[133] The trial judge directed the jury that they could convict Mr English of murder if he foresaw a substantial risk that, during the planned attack, the principal might kill or cause really serious injury to the police officer.^[134] The certified question for the House of Lords, in the case of Mr English, was this:^[135]

Is it is sufficient for murder that the secondary party intends or foresees that the primary party would or may act with intent to cause grievous bodily harm, if the lethal act carried out by the primary party is fundamentally different from the acts intended or foreseen by the secondary party?

165 Lord Hutton, delivering the leading speech, accepted the submission that, to be guilty under the principle stated in Chan Wing-Siu,^[136] “the secondary party must foresee an act of the type which the principal party committed”.^[137] His Lordship referred in particular to the following passage from the opinion of Sir Robin Cooke in Chan Wing-Siu:^[138]

The case must depend rather on the wider principle whereby a secondary party is criminally liable for acts by the primary offender of a type which the former foresees but does not necessarily intend.

166 The principal’s use of the knife was fundamentally different from the use of a wooden post, and was therefore outside the scope of the joint criminal venture. In those circumstances, Mr English was not guilty of either murder or manslaughter.^[139]

167 Lord Hutton, however, went on to qualify the principle by saying that:^[140]

if the weapon used by the primary party is different to, but as dangerous as, the weapon which the secondary party contemplated he might use, the secondary party should not escape liability for murder because of the difference in the weapon, for example, if he foresaw that the primary party might use a gun to kill and the latter used a knife to kill, or vice versa.

168 While it seems that this principle may have been invoked in cases of joint enterprise and accessorial liability alike, it appears to owe its heritage to developments in accessorial liability. For, while Sir Robin Cooke, when delivering the Board’s advice in Chan Wing-Siu, had not referred to R v Bainbridge,^[141] the reasoning of Lord Parker CJ in that case, which concerned accessorial liability, was to a very similar effect: there must be “knowledge that a crime of the type in question was intended”.^[142]

169 I return to Jogee. After referring to the aspect of Powell that dealt with the fundamentally different act rule, Lord Hughes and Lord Toulson said this:^[143]

[59] In later cases which proceeded on the assumption that the law was as stated in Chan Wing-Siu, courts have endeavoured to clarify the test of what is to be regarded as “fundamentally different” for this purpose; such cases include R v Rahman^[144] ... and R v Mendez^[145] ... . The need to address a concept of “fundamental departure” assumed great importance because guilt was based, under the Chan Wing-Siu and Powell ... rule, on foresight of what [the principal] might do.

170 As will be seen below, their Lordships ultimately held that the latter “foresight” principle (i.e. parasitic accessory liability) had no place in the law of the United Kingdom.^[146]

171 Lord Hughes and Lord Toulson then went on to restate the “essential principles”, which included the following vis-à-vis the mental element required of an accessory:^[147]

[90] The second issue is likely to be whether the accessory intended to encourage or assist [the principal] to commit the crime, acting with whatever mental element the offence requires of [the principal] (as stated in para 10 above). If the crime requires a particular intent, [the accessory] must intend (it may be conditionally) to assist [the principal] to act with such intent. To take a homely example, if [the accessory] encourages [the principal] to take another’s bicycle without permission of the owner and return it after use, but [the principal] takes it and keeps it, [the principal] will be guilty of theft but [the accessory] of the lesser offence of unauthorised taking, since he will not have encouraged [the principal] to act with intent permanently to deprive. In cases of concerted physical attack there may often be no practical distinction to draw between an intention by [the accessory] to assist [the principal] to act with the intention of causing grievous bodily harm at least and [the accessory] having the intention himself that such harm be caused. In such cases it may be simpler, and will generally be perfectly safe, to direct the jury (as suggested in Wesley Smith and Reid) that the Crown must prove that [the accessory] intended that the victim should suffer grievous bodily harm at least. However, as a matter of law, it is enough that [the accessory] intended to assist [the principal] to act with the requisite intent. That may well be the situation if the assistance or encouragement is rendered some time before the crime is committed and at a time when it is not clear what [the principal] may or may not decide to do. Another example might be where [the accessory] supplies a weapon to [the principal], who has no lawful purpose in having it, intending to help [the principal] by giving him the means to commit a crime (or one of a range of crimes), but having no further interest in what he does, or indeed whether he uses it at all.

[91] It will therefore in some cases be important when directing juries to remind them of the difference between intention and desire.

[95] In cases where there is a more or less spontaneous outbreak of multi-handed violence, the evidence may be too nebulous for the jury to find that there was some form of agreement, express or tacit. But, as we have said, liability as an aider or abettor does not necessarily depend on there being some form of agreement between the defendants; it depends on proof of intentional assistance or encouragement, conditional or otherwise. If [an accessory] joins with a group which he realises is out to cause serious injury, the jury may well infer that he intended to encourage or assist the deliberate infliction of serious bodily injury and/or intended that that should happen if necessary. In that case, if [the accessory] acts with intent to cause serious bodily injury and death results, [the principal] and [the accessory] will each be guilty of murder.

[96] If a person is a party to a violent attack on another, without an intent to assist in the causing of death or really serious harm, but the violence escalates and results in death, he will be not guilty of murder but guilty of manslaughter. So also if he participates by encouragement or assistance in any other unlawful act which all sober and reasonable people would realise carried the risk of some harm (not necessarily serious) to another, and death in fact results: ... . The test is objective. As the Court of Appeal held in Reid, if a person goes out with armed companions to cause harm to another, any reasonable person would recognise that there is not only a risk of harm, but a risk of the violence escalating to the point at which serious harm or death may result. Cases in which [the accessory] intends some harm falling short of grievous bodily harm are a fortiori, but manslaughter is not limited to these.

[97] The qualification to this (recognised in Wesley Smith, Anderson and Morris and Reid) is that it is possible for death to be caused by some overwhelming supervening act by the perpetrator which nobody in the defendant’s shoes could have contemplated might happen and is of such a character as to relegate his acts to history; in that case the defendant will bear no criminal responsibility for the death.

[98] This type of case apart, there will normally be no occasion to consider the concept of “fundamental departure” as derived from [Powell]. What matters is whether [the accessory] encouraged or assisted the crime, whether it be murder or some other offence. He need not encourage or assist a particular way of committing it, although he may sometimes do so. In particular, his intention to assist in a crime of violence is not determined only by whether he knows what kind of weapon [the principal] has in his possession. The tendency which has developed in the application of the rule in Chan Wing-Siu to focus on what [the accessory] knew of what weapon [the principal] was carrying can and should give way to an examination of whether [the accessory] intended to assist in the crime charged. If that crime is murder, then the question is whether he intended to assist the intentional infliction of grievous bodily harm at least, which question will often, as set out above, be answered by asking simply whether he himself intended grievous bodily harm at least. Very often he may intend to assist in violence using whatever weapon may come to hand. In other cases he may think that [the principal] has an iron bar whereas he turns out to have a knife, but the difference may not at all affect his intention to assist, if necessary, in the causing of grievous bodily harm at least. Knowledge or ignorance that weapons generally, or a particular weapon, is carried by [the principal] will be evidence going to what the intention of [the accessory] was, and may be irresistible evidence one way or the other, but it is evidence and no more.

[99] Where the offence charged does not require mens rea, the only mens rea required of the secondary party is that he intended to encourage or assist the perpetrator to do the prohibited act, with knowledge of any facts and circumstances necessary for it to be a prohibited act: ... .

172 Among the many things that might be observed about the foregoing passages, I shall mention just four. First, their Lordships considered that there may often be no practical distinction to draw between, on the one hand, an intention by an accessory to assist the principal to act with the intention of causing grievous bodily harm at least and, on the other, the accessory having the intention himself that such harm be caused. (As noted earlier, this is contrary to Hunt J’s reasoning in Stokes & Difford.)

173 Secondly, their Lordships considered that, in such cases, it may be simpler, and will generally be perfectly safe, to direct the jury that the Crown must prove that the accessory intended that the victim should suffer grievous bodily harm at least.

174 Thirdly, however, as I indicated earlier, their Lordships were of the view that, as a matter of law, it is enough that the accessory intended to assist the principal to act with the requisite intent.

175 Fourthly, their Lordships made clear that there still would be no liability for either murder or manslaughter where there is some “overwhelming supervening act by the perpetrator which nobody in the defendant’s shoes could have contemplated might happen and is of such a character as to relegate his acts to history”.^[148] On the other hand, their Lordships made it equally plain that:^[149]

[t]he tendency which has developed in the application of the rule in Chan Wing-Siu to focus on what [the accessory] knew of what weapon [the principal] was carrying can and should give way to an examination of whether [the accessory] intended to assist in the crime charged.

176 Thus, while the fundamentally different act rule appears to have survived in the United Kingdom, it seems to have done so in a slightly different form, and its scope may have diminished somewhat.^[150]

177 In 2010, in The Queen v Nguyen,^[151] the High Court was referred to the authorities on the fundamentally different act rule that, by that stage, had culminated in R v Rahman.^[152] Their Honours concluded, however, that there was no:^[153]

occasion to consider the utility of a distinction of the kind identified by the House of Lords in R v Rahman.^[154] There a distinction was drawn between cases where a weapon of which the alleged secondary party does not know is suddenly produced and used by the principal, and which is more lethal than any weapon which the secondary party contemplated may be carried, and other cases where there was a sudden production of an unknown and more lethal weapon. It is sufficient to say that the principles identified in Clayton^[155] and Gillard^[156] do not draw such a distinction.

178 In circumstances where the law in the United Kingdom no longer recognises parasitic accessory liability, and yet the fundamentally different act rule has survived there (at least in some attenuated form), and where our High Court subsequently has affirmed the existence of extended common purpose liability,^[157] but has not squarely considered the fundamentally different act rule, it is difficult to say what status the rule has, if any, in the common law of Australia.

179 In my view, the foregoing (non-exhaustive) survey of the authorities shows that there is a good deal of uncertainty in the common law’s approach to the accessory’s state of mind with respect to the principal’s crime.

180 It might be said to be curious that, while Australian courts have been prepared to apply the requirement that the accessory know or believe in the existence of the factual ingredients of a crime to facts concerning some aspects of the actus reus of an offence, even where the principal offender need not know of or believe in the existence of any such facts in order to be liable (such as the dangerous driving aspect of culpable driving, as in Giorgianni), in the main, they have baulked at extending that requirement to knowledge of or belief in the occurrence of the most important aspect of the actus reus in result crimes — namely, the proscribed result — even when the mens rea for the principal offender must be directed to the proscribed result, either wholly or partly (such as in the case of murder, as in Likiardopoulos).

181 On the other hand, Le Broc bucks the latter trend, in part, by sanctioning a direction requiring proof of the accessory’s foresight of the probability of the proscribed result (namely, serious injury) for the purposes of the offence of recklessly causing serious injury, and yet also accepts as arguable (and as consistent with Stokes & Difford) a requirement that the accessory know or believe that the principal possessed the requisite mens rea — that of foresight of the probability of serious injury.

182 Yet it appears from Jogee that, in murder cases in the United Kingdom, while it will be regarded as “perfectly safe ... to direct the jury ... that the Crown must prove that [the accessory] intended that the victim should suffer grievous bodily harm at least”, “as a matter of law, it is enough that [the accessory] intended to assist [the principal] to act with the requisite intent”.^[158]

183 Despite the uncertainty, given the way in which Giorgianni has been interpreted and applied in Likiardopoulos, I think that I must regard this Court as being bound to hold that the liability of an accessory for murder at common law requires proof, on the evidence admissible in the trial of the accessory, of the following things:

1) First, the accessory knew or believed that the principal was committing or was going to commit an act (whether it be an assault, a stabbing, a shooting, etc) directed towards the deceased with murderous intent (i.e. an intention to kill or cause really serious injury).

2) Second, with that knowledge or belief, the accessory intentionally assisted or encouraged the principal to commit that act with murderous intent.

184 At this point, it should also be noted that it seems plain enough from extrinsic materials that the legislature intended that s 323(1)(a) would “cover” the behaviour caught by accessorial liability at common law. So much is apparent from the express words of the Explanatory Memorandum to the Bill that became the Amending Act, where the following is said:^[160]

New section 323(1)(a) covers the behaviour that would be covered by aiding, abetting, counselling and procuring at common law. The reference to “intentionally” is consistent with the fault element required by Giorgianni v [The Queen] [1985] HCA 29; (1985) 156 CLR 473. That is, the person must have intended to assist etc. another to commit a particular offence.

185 The second and third sentences of the foregoing extract also make it clear that the use of the word “intentionally” in s 323(1)(a) is designed to be consistent with the fault element required by Giorgianni, including the notion that the accused must have intended to assist, encourage or direct another to commit a particular offence.

186 But, of course, the foregoing still begs the question precisely what it is, for the purposes of paragraph (a), that the secondary party must intend (or know or believe) about the particular offence being (or to be) committed by the principal at the time of his (the secondary party’s) intentional assistance, encouragement or direction.

187 Before considering the scope of s 323(1)(a) any further, which I shall do at a later point in these reasons, it is convenient to turn to the other paragraphs in s 323(1), commencing with paragraph (b), upon which the Crown also relied.

188 As we have seen, s 323(1)(b) provides that a person is involved in the commission of an offence if the person:

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.

189 I mentioned earlier that this form of liability is, in a sense, a hybrid of the new statutory version of accessorial liability in s 323(1)(a) as applied to the foundation (or “another” or “other”) offence and a statutory version of a narrowed form of extended common purpose liability at common law as applied to the charged offence.

190 The argument in this case focused on the second part of the provision. In particular, the question concerned to what it is precisely that the secondary party must have turned his mind in order to satisfy the requirement that he was aware that it was probable that the offence charged (murder) would be committed by the principal in the course of carrying out the other (or foundation) offence (assault).

191 Again, similar to the construction of paragraph (a) considered earlier, but with necessary adaptation, it is arguable that the ordinary meaning of paragraph (b) is that the secondary party must be aware that it is probable that the principal will engage in behaviour that amounts to the elements of murder, including its proscribed result. Thus, on this construction, the second part of paragraph (b) would require that the secondary party be proved to have been aware that it was probable that, in the course of carrying out the assault, the principal, by a conscious, voluntary and deliberate act or acts performed without any lawful justification or excuse but with an intention to kill (or an intention to cause really serious injury), would kill the deceased.

The Australian common law on extended common purpose: What must be foreseen?

192 Since there is some doubt (perhaps Johns v The Queen^[161] aside) that the common law had grafted extended common purpose reasoning (or a form of it) onto accessorial liability at common law, it is instructive, I think, to turn first to the common law on extended common purpose itself, and then to s 323(1)(d), which, as I have said, represents an attempt to pick up such reasoning but with an awareness of the probability — instead of the possibility — of the offence charged being committed.

193 At common law, on occasions, the requirements of foresight by the secondary party for the purposes of liability by way of extended common purpose, as applied in murder cases, have been stated in different ways, sometimes materially so. Most of the major Australian decisions have come from the High Court.

194 For example, commencing with McAuliffe v The Queen^[162] in 1995 — which, I venture to say, is the seminal decision in this country on extended common purpose — five members of a unanimous High Court, in a joint judgment,^[163] accepted as correct jury directions to the effect that the accused whose case was being considered would be guilty of murder if, inter alia, he:^[164]

contemplated that the intentional infliction of grievous bodily harm was a possible incident of the common criminal enterprise [which was to rob or roll someone].

the trial judge was not in error in directing the jury that if the appellants were engaged in a joint criminal enterprise with Davis, a shared common intention — that is, a common purpose — to inflict grievous bodily harm or an individual contemplation of the intentional infliction of grievous bodily harm as a possible incident of the venture would be a sufficient intention on the part of either of them for the purpose of murder.

196 The next major case in which the High Court considered the doctrine was Gillard v The Queen,^[166] which was determined in 2003. Gleeson CJ and Callinan J, in their joint judgment, stated the potential operation of the doctrine by reference to the particular facts in that case:^[167]

In the present case, on the robbery hypothesis, the appellant was a party to a common design which involved the hostile confrontation of Knowles with a loaded gun. According to the principles stated in McAuliffe, the culpability of the appellant [the secondary party] in the event that Preston [the principal] shot and killed Knowles would depend upon the scope of their common design, and what he foresaw as a possible incident of the design. If he foresaw, as a possible incident of carrying out the common design, that Preston might shoot Knowles with intent to kill or cause grievous bodily harm, then he would be guilty of murder.^[168] If he foresaw, as a possible incident, that Knowles might shoot Preston^[169] but without foreseeing such intent, then he would be guilty of manslaughter. That need not depend upon whether Preston decided on the spur of the moment to kill Knowles, or whether the killing was premeditated. Furthermore, there is a difficulty in treating intention as a cause of death. The cause of death is the act that brought it about. The issue is the accused’s criminal responsibility for that act.

197 Later still, after extracting a passage from McAuliffe,^[170] their Honours said this:^[171]

The general principle there referred to extends to the possibility that a person who intentionally assists in homicide may be guilty of manslaughter even though the principal offender is guilty of murder. The existence of that possibility assumes a difference in the intentions of the two parties. The secondary party may not know of, or foresee, the principal offender’s murderous intention, but may foresee the possibility of the act causing death as an incident of the common design. The essence of the reasoning in the above passage is that, when the secondary party continues to participate in the venture without having agreed to, but foreseeing as a possibility, the act causing death, that party is regarded as intentionally assisting in the commission of a crime. In the present case, if a jury decided that the appellant foresaw as a possibility that Preston would fire the loaded gun at Knowles, and continued to participate with that foresight, then he would be intentionally assisting in the commission of culpable homicide. The level of his own culpability would depend upon whether he foresaw that Preston might act with intent to kill or cause grievous bodily harm.

198 While Kirby J, in a separate judgment, made criticisms of the doctrine of extended common purpose — which doctrine, in his opinion, should be reconsidered — his Honour also said this:^[172]

Pending further clarification of the law of joint liability for homicide on the basis of the doctrine of common purpose, to the extent that there is uncertainty, and in order to give a clear rule for application at trials, I agree in the reasons of Gleeson CJ and Callinan J.

199 Hayne J (with whom Gummow J agreed concerning the relevant principles and their application^[173]) said this:^[174]

Common purpose principles rightly require consideration of what an accused foresaw, not just what the accused agreed would be done. The accused is held criminally responsible for his or her continued participation in a joint enterprise, despite having foreseen the possibility of events turning out as in fact they did. It does not depend upon identifying a coincidence between the wish or agreement of A that an act be done by B and B’s doing of that act. The relevant conduct is that of A — in continuing to participate in the venture despite foresight of what may be done by B.

The question for the jury would then have become, what did the appellant contemplate might happen if Preston presented a firearm in the workshop? If, as the prosecution contended at trial, the jury were to conclude that Preston must have produced the weapon and cocked it in the van before he got out, it would be open to the jury to conclude that the common purpose of the parties extended to the pointing of a loaded and cocked firearm at one or more of those in the workshop. If that were so, and if the prosecution failed to establish its principal contention, that the appellant had contemplated the deliberate use of the weapon to kill or do grievous bodily harm, the appellant would, nonetheless, be guilty of manslaughter by unlawful and dangerous act. On this hypothesis, Preston would have gone beyond what had been agreed and contemplated by the appellant when he deliberately shot those in the workshop, but the presentation of the loaded and cocked firearm would have been within the scope of the common purpose.

201 Next in the line of significant cases was Clayton v The Queen,^[176] where, in 2006, an (unsuccessful) attempt was made to have the High Court abandon the doctrine of extended common purpose (or, in the alternative, to have the Court modify it by substituting foresight of probability of the charged crime for foresight of possibility). In their joint judgment, while the majority (Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ), in dismissing the application for special leave to appeal, said that “it is neither necessary nor desirable to attempt to elaborate or explain [the principles stated in McAuliffe and Gillard] in any way”,^[177] their Honours nevertheless said this at a later point in their reasons:^[178]

If a party to a joint criminal enterprise foresees the possibility that another might be assaulted with intention to kill or cause really serious injury to that person, and, despite that foresight, continues to participate in the venture, the criminal culpability lies in the continued participation in the joint enterprise with the necessary foresight.^[179]

202 The operation of the doctrine was next considered in 2007 by the High Court in The Queen v Taufahema.^[180] When stating the relevant principles of complicity, Gleeson CJ and Callinan J, in their joint judgment, referred to, inter alia,^[181] McAuliffe^[182] and to the passage from the majority judgment in Clayton^[183] which is extracted above.^[184] When considering the facts of the case at hand, their Honours also spoke of:^[185]

whether [the enterprise] is criminal ... and ... whether the shooting was within the scope of the common purpose reflected in that joint criminal enterprise in that it was foreseen as a possible incident of the enterprise as explained in cases such as McAuliffe and Clayton. ...

203 In their joint (majority) judgment in the same case, Gummow, Hayne, Heydon and Crennan JJ did not elaborate on the principles underpinning the murder charge.

204 In a separate judgment, however, Kirby J observed that extended common purpose liability:^[186]

exists where a primary offender has committed a crime within the contemplation of the secondary offender as a possible incident in the execution of their agreed joint criminal enterprise and thus within the scope of an unlawful extended common purpose.

205 Next, in The Queen v Nguyen,^[187] which was decided in 2010, the doctrine of extended common purpose was among the principles applied by the High Court to allow the cross-appeal of Mr Nguyen against his convictions for murder and attempted murder.

206 At a joint trial, it was alleged that Bill Ho (Mr Ho), Dang Khoa Nguyen (Mr Khoa) and Mr Nguyen had gone to a flat in the Melbourne suburb of Carlton to collect a debt owed to either Mr Ho or Mr Khoa by Mau Duong (Mr Duong). Several persons were present in the flat, but Mr Duong was not there. The three accused repeatedly asked where Mr Duong was. Mr Nguyen entered the lounge holding a sword, which he waved about, cutting two or three of the occupants. (It was disputed that Mr Nguyen had brought the sword to the flat.) Mr Ho produced a firearm and fired two shots. (Mr Nguyen disputed that he was aware that Mr Ho had a gun before that point.) The first shot hit Chau Minh Nguyen (Mr Chau), who survived, and the second struck Hieu Trung Luu (Mr Luu), who died as a result.

207 The Crown case on both attempted murder and murder against Mr Ho was as a principal who intended to kill with each shot. The Crown cases against Mr Khoa and Mr Nguyen were put on the three different bases of criminal complicity: acting in concert, (extended) common purpose^[188] and aiding and abetting. Manslaughter was also left in the alternative to murder in each accused’s case. All three accused were found guilty of both attempted murder and murder.

208 In the Court of Appeal, Mr Khoa’s appeal against conviction was dismissed. Mr Nguyen’s appeal was allowed on the basis that each verdict was unsafe and unsatisfactory, and verdicts of acquittal were ordered instead.^[189]

209 The Crown sought special leave to appeal Mr Nguyen’s acquittals to the High Court, arguing that the verdicts were not unsafe and unsatisfactory. Mr Nguyen cross-appealed on the basis that the trial judge had erred in failing to leave manslaughter as an alternative verdict in the event that Mr Ho was convicted of murder. Both the appeal and the cross-appeal were allowed; the order directing verdicts of acquittal was set aside; and a retrial was ordered instead.^[190]

210 The Court recorded, without criticism, that the trial judge had directed the jury that proof of (extended) common purpose required, inter alia, that the secondary party:^[191]

contemplated or foresaw the possibility that an intentional killing might occur as a necessary part of carrying out [the] agreement [that they would use violence to recover a drug debt].

211 Later in the Court’s reasons, the following submissions made by the Crown were recorded, which observed the distinction between attempted murder and murder in so far as the necessary mens rea was concerned:^[192]

The prosecution submitted in this Court that the instructions that were given to the jury about complicity were adequate because, on the charge of attempted murder, any secondary liability of [Mr] Nguyen depended upon [Mr] Ho being found to have intended to kill, and no lesser agreement or contemplation would suffice to make [Mr] Nguyen complicit in that crime. That is, to be guilty of attempted murder, the respondent must have been party to an agreement to kill, or have foreseen that there would be an assault with intention to kill, or have assisted or encouraged an assault committed with that intention. The prosecution further submitted that, because the charge of murder arose out of an event that occurred very soon after the shooting said to be an attempted murder, it was not reasonably open to the jury to conclude that when the second shooting occurred there was some different, lesser, agreement or contemplation on the part of [Mr] Nguyen. Hence, the prosecution argument continued, the real issue in the case against [Mr] Nguyen, so far as concerned his complicity in the second crime that was committed, was whether he was party to an agreement to kill or do really serious injury, or foresaw that there would be an assault with murderous intent, or assisted or encouraged an assault with that intent. And this, so it was submitted, was the only way in which the prosecution had put its case at trial.

212 While the foregoing submission was rejected as a reason for denying Mr Nguyen’s ground of cross-appeal, there was no criticism of the Crown’s use of the words “foresaw that there would be an assault with murderous intent” (or similar) as a characterisation of the appropriate test for liability for murder by way of extended common purpose reasoning.

213 Finally, and most recently, in 2016, in Miller v The Queen,^[193] as I indicated earlier, the High Court considered a submission that the doctrine of extended common purpose should no longer be part of the common law of Australia. A majority of the Court (French CJ, Kiefel, Bell, Nettle and Gordon JJ; Keane J agreeing) rejected that submission.^[194] In doing so, the plurality nevertheless stated the applicable principle in this way:^[195]

[1] ... [T]he doctrine holds that a person is guilty of murder where he or she is a party to an agreement to commit a crime and foresees that death or really serious bodily injury might be occasioned by a co-venturer acting with murderous intention and he or she, with that awareness, continues to participate in the agreed criminal enterprise.

214 Later in their reasons, the plurality said that the law, as stated in McAuliffe,^[196] included the following:^[197]

[4] ... An incidental crime is within the scope of the agreement if the parties contemplate its commission as a possible incident of the execution of their agreement. Moreover, a party to a joint criminal enterprise who foresees, but does not agree to, the commission of the incidental crime in the course of carrying out the agreement and who, with that awareness, continues to participate in the enterprise is liable for the incidental offence (“extended joint criminal enterprise” liability).

[140] ... the anomaly identified in Jogee,^[199] namely that under the approach in Chan Wing-Siu foreseeability of death or really serious injury is not a sufficient mens rea for the principal to be guilty of murder, but is sufficient in a secondary party ...

216 Gageler J, who delivered a separate judgment explaining why he favoured abandonment of the doctrine, set out its requirements by reference to an illustration. In particular, his Honour said this:^[200]

[91] ... The bagman and driver need not have intended that the gunman would shoot to kill or cause grievous harm as a possible means of carrying out the plan to rob the bank. It is enough for them to be liable for murder [pursuant to extended common purpose reasoning] that they foresaw the possibility that the gunman would take it upon himself to shoot to kill or cause grievous harm and that they participated in the plan to rob the bank with that foresight.

217 Turning to the United Kingdom, in R v Hyde,^[201] Lord Lane CJ said that the correct principle, which was enunciated by Sir Robin Cooke sitting on the Privy Council in 1985 in Chan Wing-Siu,^[202] was as follows:^[203]

If B realises (without agreeing to such conduct being used) that A may kill or intentionally inflict serious injury, but nevertheless continues to participate with A in the venture, that will amount to a sufficient mental element for B to be guilty of murder if A, with the requisite intent, kills in the course of the venture. As Professor Smith points out, B has in those circumstances lent himself to the enterprise and by doing so he has given assistance and encouragement to A in carrying out an enterprise which B realises may involve murder.

218 In 1992, in Hui Chi-Ming v The Queen,^[204] the Privy Council expressly endorsed the first sentence of the forgoing extract from the judgment in Hyde.

219 Writing in 1997, the great British legal scholar Professor Sir John Smith said this:^[205]

... The accessory to murder, however, must be proved to have been reckless, not merely to whether death might be caused, but whether murder might be committed: he must have been aware, not merely that death or grievous bodily harm might be caused, but that it might be caused intentionally, by a person whom he was assisting or encouraging to commit a crime.

220 Later the same year, in Powell,^[206] Lord Hutton, in whose speech the other members of the House of Lords agreed, stated the principle in this way:^[207]

[I]t is sufficient to found a conviction for murder for a secondary party to have realised that in the course of the joint enterprise the primary party might kill with intent to do so or with intent to cause grievous bodily harm.

221 Finally, in 2016, in Jogee,^[208] the Supreme Court of the United Kingdom and the Privy Council, in a joint hearing of two matters,^[209] held that the common law took a “wrong turn” in Chan Wing-Siu and that there is no place for parasitic accessory liability in the law.^[210] The error was to equate foresight with intent to assist, as a matter of law; the correct approach is to treat it as evidence of intent.^[211] In the course of their joint reasons, Lord Hughes and Lord Toulson stated the principles of parasitic accessory liability spoken of in Chan Wing-Siu, Hyde, Hui Chi-Ming and Powell in the ways set out earlier.^[212] Their Lordships also referred to numerous other cases, including Australian authorities,^[213] but I think it is unnecessary to rehearse them in these reasons.

222 One passage, however, is worth noting here. Their Lordships, when referring to Powell at one point, said this:^[214]

[55] Lord Hutton recognised that as a matter of logic there was force in the argument that it was anomalous that foreseeability of death or really serious injury is not a sufficient mens rea for the principal to be guilty of murder, but is sufficient in a secondary party ...

223 This is the passage in Jogee to which Keane J had referred in Miller and which I extracted a little earlier. Three things may be said about it. First, it is correct that Lord Hutton uttered these words in his speech in Powell.^[215] Secondly, however, they are different from those of the applicable test his Lordship propounded only two pages later in his speech, which reflected the certified question in issue.^[216] It is not enough to foresee “death or really serious injury”; instead, there must be foresight that “the primary party might kill with intent to do so or with intent to cause grievous bodily harm“.^[217] Thirdly, despite the elision that sometimes occurs in this area of the law, the necessary distinction, I dare say, was well understood and observed by Lord Hughes and Lord Toulson elsewhere in Jogee.^[218]

224 As the foregoing rather long — but still incomplete — survey of authorities shows, in summary, the various statements of extended common purpose liability have required that, in order to be guilty of murder, the secondary party’s state of mind must be that he:

1) “contemplated that the intentional infliction of grievous bodily harm was a possible incident of the common criminal enterprise” (McAuliffe);

2) “foresaw, as a possible incident of carrying out the common design, that [A] might shoot [B] with intent to kill or cause grievous bodily harm” or “foresaw that [A] might act with intent to kill or cause grievous bodily harm” (Gleeson CJ and Callinan J in Gillard, with whom Kirby J agreed);

3) “continued [his] participation in a joint enterprise, despite having foreseen the possibility of events turning out as in fact they did” or “contemplated the deliberate use of the weapon to kill or do grievous bodily harm” (Hayne J in Gillard, with whom Gummow J agreed);

4) “fore[saw] the possibility that another might be assaulted with intention to kill or cause really serious injury to that person” (Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ in Clayton);

5) “[foresaw the shooting] as a possible incident of the enterprise” (Gleeson CJ and Callinan J in Taufahema);

6) “[contemplated a crime] as a possible incident in the execution of their agreed joint criminal enterprise” (Gummow, Hayne, Heydon and Crennan JJ in Taufahema);

7) “contemplated or foresaw the possibility that an intentional killing might occur” or “foresaw that there would be an assault with murderous intent” (Nguyen);

8) “fore[saw] that death or really serious bodily injury might be occasioned by a co-venturer acting with murderous intention” (French CJ, Kiefel, Bell, Nettle and Gordon JJ in Miller);

9) “foresaw the possibility that the gunman would take it upon himself to shoot to kill or cause grievous harm” (Gageler J in Miller);

10) “realise[d] ... that A may kill or intentionally inflict serious injury” (Chan Wing-Siu, Hyde and Hui Chi-Ming);

11) “must have been aware, not merely that death or grievous bodily harm might be caused, but that it might be caused intentionally, by a person whom he was assisting or encouraging to commit a crime” (Professor Sir John Smith); or

12) “realised that in the course of the joint enterprise the primary party might kill with intent to do so or with intent to cause grievous bodily harm” (Powell).

225 Despite their differences, apart from what might be regarded as slips in Lord Hutton’s speech in Powell, Lord Hughes and Lord Toulson’s judgment in Jogee and in Keane J’s judgment in Miller (the latter two of which are sourced from Powell), all of the foregoing statements of the doctrine require that, for murder to be committed by the secondary party, he must foresee that the one who killed might act with at least one of the heads of murderous intent, whether it be an intention to kill or an intention to cause really serious injury (to use the turn of phrase employed in this State for murder).

226 As for foresight of the actions of the killer or the result of those actions, while Powell (putting aside the slip just mentioned) appears to require that the secondary party realises that he might kill^[219] (with murderous intent), and while some other statements suggest an act of violence (such as an assault or a shooting) with murderous intent is enough (see, for example, some of the passages in Gillard, Clayton, Taufahema and the second passage in Nguyen), all of the other authorities — and especially the bookend cases on the topic in the High Court, namely McAuliffe and Miller, as well as Hayne J (with whom Gummow J agreed) in Gillard, and the first passage in Nguyen in between — require foresight of the possibility of either death or really serious injury (with murderous intent). Thus, while two of those latter authorities (McAuliffe and Miller) allow an alternative head of foresight of something short of the forbidden result in murder, it is at least foresight of a result which corresponds with the lesser form of intent required for murder, i.e. an intention to cause really serious injury (or grievous bodily harm), and it must also be foreseen that the principal will act with at least that intent.

227 It strikes me as odd that the reasons in Chan Wing-Siu, Hyde and Hui Chi-Ming speak of a realisation that the principal might kill, but without any mention of the corresponding intention, when in the next breath those authorities require foresight that the principal might intentionally inflict serious injury.

228 On the other hand, some of the statements of principle, including in the three United Kingdom cases just mentioned, tend to collapse both the foresight of the causation of death or really serious injury and the foresight of the intention to bring about such results into the one phrase. Thus, for example, members of the High Court variously have spoken of “the intentional infliction of grievous bodily harm” (McAuliffe), “the deliberate use of the weapon to kill or do grievous bodily harm” (Hayne J in Gillard, with whom Gummow J agreed) or “contemplat[ing] or fores[eeing] the possibility that an intentional killing might occur” (Nguyen), or have said that “the gunman would take it upon himself to shoot to kill or cause grievous harm” (Gageler J in Miller). Similarly, courts in the United Kingdom repeatedly have used the words “that A may ... intentionally inflict serious injury” (Chan Wing-Siu, Hyde and Hui Chi-Ming).

229 To be sure, it might be said — reasonably, I think — that, in almost every case in which a secondary party was aware that the principal might (or, under the new s 323(1)(b) or (d), probably would) perform some act of violence with an intention to kill or cause really serious injury (i.e. with murderous intent), that same secondary party would also foresee that the principal might (or, under the new paragraph (b) or (d), probably would) kill or cause really serious injury.

230 This might be thought to be a similar (but not quite the same) line of reasoning to that which was employed by Hunt J in Stokes & Difford, which is worth repeating here:^[220]

[I]t is usually more appropriate to speak of the accessory’s knowledge (or awareness) of the principal offender’s intention to do an act with a particular state of mind at the time when the accessory aids, abets, counsels or procures the principal offender to commit the crime in question than it is to speak of the accessory’s knowledge of the act done by the principal offender with that state of mind. The knowledge will usually crystallise in the accessory’s mind before he involves himself as an accessory to that crime.

231 A related (but, again, slightly different) point was made by Lord Hughes and Lord Toulson when restating the law concerning accessorial liability in Jogee:^[221]

[90] ... In cases of concerted physical attack there may often be no practical distinction to draw between an intention by [the accessory] to assist [the principal] to act with the intention of causing grievous bodily harm at least and [the accessory] having the intention himself that such harm be caused. ...

232 That said, within the common law doctrines of complicity, and, more importantly, under the four heads in s 323(1), there might also be cases in which the secondary party’s foresight or awareness of the principal’s intention does not align with his foresight or awareness of the results of the principal’s present or future actions. For example, a secondary party might be aware that it is probable that, given his state of anger, in the course of, say, an offence of damaging the deceased’s property, the principal would punch the deceased with an intention to cause really serious injury but the secondary party does not foresee the causation of really serious injury as probable because he thinks that the principal would be ineffective in carrying out the intention he probably holds. Yet, if the secondary party foresaw the probability of the presentation and use of a knife by the principal, then, coupled with his foresight of the probability of the principal’s angry intent to cause really serious injury, he might also foresee the probability of a stabbing causing really serious injury (or even death) with an intention to cause really serious injury (or an intention to kill).

233 Doubtless, the examples could be multiplied. But the illustrations show the potential importance of the differences in the breadth of behaviour that might fall within or outside the ambit of the provisions depending upon precisely what it is about the murder by the principal that the secondary party must foresee as probable for the purposes of s 323(1)(b) or (d).

234 In any event, I think I must take the last word on the common law of Australia on murder by extended common purpose to be that which was uttered by those who participated in the plurality reasons in Miller:^[222]

[T]he doctrine holds that a person is guilty of murder where he or she is a party to an agreement to commit a crime and foresees that death or really serious bodily injury might be occasioned by a co-venturer acting with murderous intention and he or she, with that awareness, continues to participate in the agreed criminal enterprise.

235 Before considering the scope of s 323(1)(b) any further, I think it is preferable to turn now to s 321(1)(d). As we have seen, paragraph (d) provides that a person is involved in the commission of an offence if the person:

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.

236 Just as in the case of paragraph (b), it is arguable that the ordinary meaning of the second part of paragraph (d), when applied to murder, is that the secondary party must be aware that it was probable that, in the course of carrying out the assault, the principal would kill the deceased while possessing murderous intent.^[223]

237 As I have observed already, however, it is clear that paragraph (d) is even more directly modelled on extended common purpose at common law than is paragraph (b). Again, a very significant change, however, is that the necessary foresight of the possibility of the commission of the crime charged has been replaced with awareness that, in the course of carrying out the foundational offence, such an occurrence was probable.

238 There has been a good deal of criticism of the broad scope of the doctrine of extended common purpose at common law, both in the courts of the United Kingdom and Australia^[224] and in academic circles.^[225]

239 In the major report that preceded the enactment of the new Victorian provisions (which was produced by a team led by Justice Weinberg), various criticisms of the doctrine were made or acknowledged.^[226] Of particular note are the following points made in the report:^[227]

[2.238] Serious thought needs to be given to whether the doctrine of extended common purpose should be retained in any statutory reform of complicity. There is plainly much force in Kirby J’s repeated criticisms of the doctrine, particularly in his observation that it suffers from ‘incongruent principles’ and alters the necessary fault element in a way which leads to overbroad criminal liability. Certainly, the doctrine cannot be reconciled with the approach taken in Giorgianni to the fault element in complicity.

[2.239] If the doctrine is to be retained, it would surely be preferable to recast the fault element required in order for it to be made out. At the very least, there ought to be a requirement of foresight of a ‘probability’ (or even ‘strong probability’) rather than a mere ‘possibility’. To narrow the scope of this form of complicity would to some extent mitigate the conceptual difficulties that arise when the Crown puts its case on complicity in various alternative ways, each with its own specific, and distinct, fault element.

240 While the draft provisions favoured by the report did not include any equivalent of paragraph (d) (or paragraph (b)), it is apparent that the legislature’s retention of the doctrine of extended common purpose in statutory form, but with the significant change to awareness of “probability” from foresight of “possibility”, reflected the concerns expressed in the report in this regard, and was designed to narrow the scope of liability.

241 So much is also made clear in the Explanatory Memorandum to the Bill that became the Amending Act, where the following is said of each of the paragraphs that ultimately became s 323(1)(a), (b), (c) and (d) respectively:^[228]

New section 323(1)(a) covers the behaviour that would be covered by aiding, abetting, counselling and procuring at common law. The reference to “intentionally” is consistent with the fault element required by Giorgianni ... That is, the person must have intended to assist etc. another to commit a particular offence.^[229]

New section 323(1)(c) covers group activity that would be covered by the common law doctrines of acting in concert, joint criminal enterprise and common purpose.

New section 323(1)(b) and (d) extend paragraphs (a) and (c) by a form of recklessness. An accused may be liable where the offence committed differs from the offence that the accused originally encouraged etc., if the accused foresaw the probability that the offence would be committed in the course of carrying out the original offence.

• intentionally encourages B to break into another person’s (C’s) home and assault C, if A is aware that it was probable that B would murder C when B broke into C’s home to assault C.

New section 323(1)(b) extends liability in relation to aiding, abetting, counselling and procuring at common law. Currently, these forms of complicity do not extend to where the accused foresaw the probability of another offence being committed. This extension is consistent with general principles of criminal law liability, and with new section 323(1)(d).

New section 323(1)(d), in conjunction with new section 324C(2), narrows the current common law. New section 324C(2) abolishes a number of common law doctrines, including extended common purpose. Extended common purpose liability extends liability for group activity to where the accused foresaw the possibility that the charged offence would be committed in the course of carrying out the offence originally planned or contemplated. Consistent with general principles of criminal law liability, new section 323(1)(d) extends liability for group activity to where the accused foresees the probability (but not the possibility) that another offence will be committed.

242 At this point, however, I think it should be observed that the illustrations given in the foregoing extract from the Explanatory Memorandum — namely, of the operation of paragraph (a) (in the first bullet-point) and paragraph (b) (in the second bullet-point) in a hypothetical murder case — with two possible exceptions, seem merely to beg the types of question I have been posing in these reasons. In other words, the illustrations speak only of “intentionally encouraging [another] to commit murder” (the paragraph (a) case) or of being “aware that it was probable that B would murder C” (the paragraph (b) example): they do not give any real clue as to what the secondary party must intend (for the purposes of paragraph (a)) or just what it is that the secondary party must have been aware was probable (for the purposes of paragraph (b)).

243 The possible exceptions are these. Again, as a matter of ordinary language, I think that to say that “A intentionally encourages another person (B) to commit murder” means that A encouraged B to kill another person with murderous intent. Equally, to say that “A is aware that it was probable that B would murder C” sounds to me very much like A was aware that it was probable that B would be killed with murderous intent.

244 In any event, as things have turned out, there is at least a partial alignment between the ordinary meaning of paragraph (d) (as well as the illustration in the Explanatory Memorandum) and the common law of extended common purpose (subject to the use of the word “probable” instead of “possible”) when applied to murder. In particular, I think that, in all of the circumstances, for the purposes of liability for murder, the preferred construction of s 323(1)(d) is that it incorporates the statement in the plurality reasons in Miller as to what must be foreseen by the secondary party at common law with respect to the principal’s murderous intent, but with the substitution of awareness that that intent was probable for awareness that it was possible.

245 The residual misalignment, however, is that, while my understanding of the common law is that the secondary party must foresee the possibility that the principal will kill or cause really serious injury with murderous intent, as I have indicated earlier, I think that the ordinary meaning of the second part of paragraph (d) is that the secondary party must be aware that it is probable that the principal will kill with murderous intent in the course of carrying out the other offence.

246 Must this misalignment be resolved? And, if so, in what way? I concluded that the misalignment must be resolved in accordance with the common law understanding of foresight or awareness, but allowing for the legislative change from foresight of possibility to awareness of probability.

247 I reached this view because it is so clear, from both the terms of paragraph (d) itself and from the Explanatory Memorandum, that the legislature attempted to reproduce the common law of extended common purpose but as modified by the substitution of awareness of probability for possibility.

248 Further, since there is nothing else — in either the words of the provision or in the Explanatory Memorandum — indicating that any further narrowing of the scope of the common law doctrine was intended by the legislature, I concluded that the preferred construction of the second part of paragraph (d), when applied to intentional murder at common law, was that it must be established that the secondary party was aware that it was probable that the principal would kill or cause really serious injury (with murderous intent) in the course of carrying out the other offence.

Back to s 323(1)(b): A new hybrid form of (narrowed) extended common purpose

250 Given the common sense need to ensure that like and related provisions are to be construed consistently, and given the express statement in the preliminary part of the Explanatory Memorandum extracted earlier in these reasons to the same effect (namely, “This Subdivision will improve the substantive law of complicity by introducing simpler, internally consistent laws and abolishing problematic common law rules”), I think that s 323(1)(b) must be read consistently with s 323(1)(d). That is to say, the Miller approach to what the secondary party must be aware of, as modified by the use of word “probable” instead of “possible”, should be applied, not only to paragraph (d) in murder cases, but also to paragraph (b).

251 Thus, for the avoidance of doubt, my preferred construction of the second part of paragraph (b), when applied to intentional murder at common law, is that it must be established that the secondary party was aware that it was probable that the principal would kill or cause really serious injury (with murderous intent) in the course of carrying out the other offence.

252 Further, that these two provisions would be construed in the same way in this respect seems to be consistent with the way in which they were spoken of together, and without any differentiation in this regard, in the Explanatory Memorandum.

253 I think it is also significant that, in the Explanatory Memorandum, it is observed that accessorial liability at common law did not extend to where the accused foresaw the probability of another offence being committed, whereas the new paragraph (b) would achieve that outcome, which “extension is consistent with the general principles of criminal law liability, and with the new [paragraph (d)]”.^[230]

255 This provision provides that a person is involved in the commission of an offence if the person “enters into an agreement, arrangement or understanding with another person to commit the offence”.

256 Similar to (although not precisely the same as) the other paragraphs in s 323(1), one of the many questions that paragraph (c) raises concerns what the secondary party must have agreed, arranged or understood would be done by the principal, and with what state of mind with respect to the principal’s behaviour, in order to have entered into an agreement, arrangement or understanding with the principal to commit the offence in question.

257 So, for example, in the case of murder, must the secondary party have entered an agreement, arrangement or understanding with the principal that the latter would kill the deceased with murderous intent, and that the secondary party also intended that the deceased be killed (or at least really seriously injured)? Or is it sufficient that the secondary party entered an agreement, arrangement or understanding that some act of violence towards the deceased would occur (which turned out to result in death) and that the secondary party also intended that the deceased be killed (or at least really seriously injured)?

258 I should have thought that the ordinary meaning of the words in paragraph (c), when applied to murder, is that, at the very least, in the mind of the secondary party, there must be an agreement, arrangement or understanding that the deceased will be killed. It might be said that such an agreement, arrangement or understanding also implies an intention, in the secondary party, that the deceased be killed and an intention (or a belief) that that is what the principal will be intending at the time of the killing.

259 As I understand it, however, such a construction arguably would be narrower in scope than the common law of acting in concert and like doctrines. This would appear to be inconsistent with the legislature’s intention, at least as spelt out in the Explanatory Memorandum. For, as can be seen in the extract from that document set out earlier, paragraph (c), it is said, “covers group activity that would be covered by the common law doctrines of acting in concert, joint criminal enterprise and common purpose”.^[231]

260 In those circumstances, I think it is necessary to consider the common law in this area a little more closely.

261 In Osland v The Queen,^[232] McHugh J said that “each of the persons acting in concert is equally responsible for the acts of the other or others”.^[233] Shortly after that remark, his Honour observed that in R v Lowery & King [No 2]^[234] Smith J said that “they are all equally guilty of that crime”, but then went on to opine that “the correct statement is that they are all equally liable for the acts that constitute the actus reus of the crime”.^[235] As I understand McHugh J’s reasoning, it then follows that, whether they be the perpetrators of the acts causing death or not, factors which may differentiate the liability for murder of those who have acted in concert include whether they have a defence such as self-defence, provocation, insanity or lack of mens rea.^[236]

262 While Osland involved an agreement, understanding or arrangement between mother and son that the deceased would be killed by the acts of the son^[237] (which the son did, by striking blows to the deceased’s skull with a pipe^[238]), it is not clear to me whether McHugh J’s discussion of the law of concert proceeded on the assumption that there must be an agreement to kill (or at least to cause really serious injury) or whether an agreement to engage in the act or acts which, as it happened, resulted in death would be a sufficient agreement to commit “the acts that constitute the actus reus of the crime [of murder]”.

263 On the other hand, in so far as McHugh J referred to the mens rea required of the person acting in concert who did not commit the acts causing death, it might be thought to be at least implicit in his Honour’s reasons that he was of the view that it is sufficient to establish either an intention to kill or an intention to cause really serious injury.^[239]

264 As in cases concerning extended common purpose, so too in the cases concerning acting in concert, including the ones to which McHugh J referred in Osland, there are statements of principle which tend to be consistent with one or more of these approaches to what must be agreed and intended by the party who did not commit the act or acts causing death.

265 For example, McHugh J referred to Lowery & King for Smith J’s statement of general principle.^[240] In that case, Smith J had directed a jury in a murder trial in a way that required proof (i) of an understanding or arrangement between the two accused that the deceased “should be killed” and (ii) that, pursuant to that understanding or arrangement, the deceased was killed with the intention of killing her.^[241]

266 Similarly, McHugh J’s reference to Parker v The Queen^[242] posited a version of the facts in which it was open to the jury to find that the appellant was acting “pursuant to the agreement to kill”.^[243]

267 On the other hand, his Honour referred^[244] to Markby v The Queen,^[245] where Gibbs ACJ said this:^[246]

... When two persons embark on a common unlawful design, the liability of one for acts done by the other depends on whether what was done was within the scope of the common design. Thus if two men go out to rob another, with the common design of using whatever force is necessary to achieve their object, even if that involves the killing of, or the infliction of grievous bodily harm on, the victim, both will be guilty of murder if the victim is killed: ... . If, however, two men attack another without any intention to cause death or grievous bodily harm, and during the course of the attack one man forms an intention to kill the victim, and strikes the fatal blow with that intention, he may be convicted of murder while the other participant in the plan may be convicted of manslaughter: ... . The reason why the principal assailant is guilty of [murder and the other participant only of] manslaughter ... [in such] a case is that the former had an actual intention to kill whereas the latter never intended that death or grievous bodily harm be caused to the victim, and if there had not been a departure from the common purpose the death of the victim would have rendered the two participants guilty of manslaughter only. ...

268 Thus, this passage suggests that it would be sufficient for liability for murder if the party who did not cause death agreed in the killing of, or the infliction of grievous bodily harm to, the deceased, or at least with the use of whatever force is necessary to achieve their object, provided he had an intention to kill or to cause really serious injury.

269 While McAuliffe is often cited for its statements of principle concerning extended common purpose, in the same judgment, the High Court also spoke of “the doctrine of common purpose”, “acting in concert in pursuit of a common criminal design”, “common design”, “concert” and “joint criminal enterprise”. The Court said that all of these terms “are used more or less interchangeably to invoke a doctrine which provides a means, often an additional means, of establishing the complicity of a secondary party in the commission of a crime”.^[247] Earlier in these reasons, I extracted a passage from the Court’s judgment in an attempt to identify precisely what it is that the secondary party must foresee for the purposes of extended common purpose liability for murder. That same passage warrants repetition here, for it may also be thought to bear on the Court’s view of what the parties involved in a joint criminal enterprise (or in a common purpose or acting in concert) must agree to and intend for the purposes of establishing murder. Their Honours said this:^[248]

the trial judge was not in error in directing the jury that if the appellants were engaged in a joint criminal enterprise with Davis, a shared common intention — that is, a common purpose — to inflict grievous bodily harm or an individual contemplation of the intentional infliction of grievous bodily harm as a possible incident of the venture would be a sufficient intention on the part of either of them for the purpose of murder.

270 The italicised passage, it might be thought, makes it plain that, for there to be a conviction for murder based on the doctrine of common purpose, there must be “a shared common intention ... to inflict grievous bodily harm” — i.e. an agreement that at least grievous bodily harm be caused with the intention of doing so. That said, there was no challenge to this particular aspect of the trial judge’s directions.^[249]

271 Similarly, in Clayton, there was no challenge to the trial judge’s directions concerning the first way in which the case was put against the applicants — i.e. on the basis of acting in concert. That part of the case was described by the majority of the Court as alleging that “the killing occurred in the course of the applicants’ implementation of a plan to cause really serious injury to the deceased”.^[250] Kirby J put it as alleging that the applicants had gone to the premises in question “with the agreement and intention to inflict really serious injury on the deceased and that, pursuant to this agreement, the deceased was stabbed with the intention of causing such really serious injury”.^[251]

272 In Nguyen,^[252] the High Court recorded, without criticism, that the case of acting in concert was left to the jury on the basis that:

there was an understanding or arrangement amounting to an agreement between ... [Mr Nguyen] ... and [Mr] Ho ... that they would kill intentionally if necessary to recover a drug debt.

273 This direction, of course, was given in a context where there was also a charge of attempted murder (concerning a different victim), and where the requisite mens rea for a principal is an intention to kill instead of an intention to kill or to cause really serious injury. With that in mind, later in their reasons, the Court recorded the Crown’s submission that, for murder by concert, the question was whether Mr Nguyen was “party to an agreement to kill or do really serious injury”.^[253]

274 Interestingly, the Court’s reference, without criticism, to an agreement to kill or do really serious injury, for the purposes of concert, is to be compared with their Honours’ reference to “contemplat[ion] or fore[sight] [of] the possibility that an intentional killing might occur”, for the purposes of extended common purpose,^[254] but to be contrasted with their later use of the phrases “fore[sight] that there would be an assault with murderous intent”, for the purposes of the same doctrine, and with “assisted or encouraged an assault with [murderous] intent”, for the purposes of accessorial liability.^[255]

275 Finally, on the appeal to the High Court in Likiardopoulos,^[256] in their joint judgment, Gummow, Hayne, Crennan, Kiefel and Bell JJ explained the way in which the case of concert (as opposed to accessorial liability) was put against the appellant at trial:^[257]

On the principal case, the appellant was liable for the murder of the deceased under the principle of criminal responsibility variously described as joint criminal enterprise, common purpose or concert. On this analysis, it was necessary to prove that the appellant was a party to an understanding or arrangement, whether formed expressly or tacitly, with John Likiardopoulos, Aydin and Singh, to inflict really serious injury on the deceased and that, while that arrangement was on foot, one or more of the parties to it did the acts which caused death intending thereby to do really serious injury to him. The appellant’s participation in the enterprise while possessed of the requisite intention (here, to inflict really serious injury) operates to fix him with liability for the acts of the other parties carried out in pursuance of it.

276 While it is perhaps not quite as clear where the balance of authority lies in the doctrine of acting in concert (and like doctrines) as it is in extended common purpose, it seems to me that it is at least arguable that the better view is that, for there to be a conviction for murder based on concert (etc) against the secondary party, there must be an agreement, arrangement or understanding between him and another or others that at least really serious injury be caused to the deceased by a party to the agreement, arrangement or understanding and that his (the secondary party’s) intention must be that at least really serious injury will be caused.

277 Even if, contrary to the foregoing conclusion, it is sufficient, for a conviction for murder based on acting in concert (etc) at common law, to prove that the secondary party entered an agreement, arrangement or understanding merely that some act of violence be committed by another party to the agreement, arrangement or understanding, which act happens to cause death, and that his (the secondary party’s) intention was that at least really serious injury be caused, I am satisfied that it is preferable to construe s 323(1)(c) differently.

278 In particular, I think paragraph (c) should be construed consistently with the view that proof of an agreement, arrangement or understanding as to causing death or at least really serious injury is required (coupled with the secondary party’s own murderous intent). I take that view for several reasons.

279 First, such a construction is, in a sense, consistent not only with what I think the common law of murder by extended common purpose also requires — namely, that the secondary party’s awareness must extend at least to the possibility of the principal’s infliction of really serious injury upon the deceased (with the intention of doing so) — but also with the ways in which I have construed the related requirements in paragraphs (b) and (d). While perfect symmetry between moral culpability and legal responsibility cannot be achieved across disparate modes of criminalising essentially the one type of behaviour — namely, complicity in a criminal offence — this construction of paragraph (c) provides for less asymmetry in cases of murder than a construction that does not require that the agreement, arrangement or understanding include at least the infliction of really serious injury.

280 Secondly, while this construction of paragraph (c) is inconsistent with what I consider to be the natural reading of the words in the provision — which is that there must be an agreement (etc) to kill — the requirement that there be an agreement (etc) to cause really serious injury ensures that there is at least some sense in which there is actually an agreement (etc) to engage in actions that are closer to murder. Certainly, it is closer than a construction without that requirement, in the sense that an agreement (etc) to cause really serious injury is a state of mind similar to at least the lesser head of mens rea for murder, i.e. an intention to cause really serious injury. This in turn represents at least a modicum of honouring of the statutory text, while also recognising the legislative intent to capture the behaviour that was caught by acting in concert and its common law cousins.

281 Thirdly, this construction (as distinct from a construction that does not require agreement (etc) as to causing really serious injury) also ensures that there is likely to be a greater equivalence between the moral culpability of the secondary party and the moral culpability of the principal offender convicted of the same murder. While the principal offender need only intend to cause really serious injury to be guilty of murder, he is the one who, by his actions, controls (at least to some extent) whether the deceased is killed or not. While, to be guilty, the secondary party must intend that really serious injury be caused, that requirement alone gives him no (or very little) meaningful control over whether death is in fact caused. On the other hand, by requiring that it be proved additionally that he agreed (etc) to acts that he intended, knew or believed would cause at least really serious injury, the secondary party possesses an element of control over what is to be done, which behaviour brings his moral culpability closer to the principal’s. If the secondary party must agree only to some act of violence that is unlikely to cause really serious injury or death, but with the necessary intent (say, to cause really serious injury only), then a murder conviction for the secondary party is harder to justify in the event that the principal, who has control over his actions, uses more force or violence than was agreed and actually kills.

282 Finally, this construction of paragraph (c), like the equivalent constructions of paragraphs (b) and (d), maintains an appropriate disparity between the requirements for complicity in murder on the one hand and complicity in manslaughter on the other. As will be seen later in these reasons, I have concluded that, in respect of each head of complicity in s 323(1), unlike the position I have reached in respect of murder, it is unnecessary, for the purposes of manslaughter, to prove that the secondary party intended, knew or believed that death or really serious injury would be caused (paragraph (a)); that the secondary party entered an agreement, arrangement or understanding that death or really serious injury be caused (paragraph (c)); or that the secondary party was aware that it was probable that death or really serious injury would be caused (paragraphs (b) and (d)). Instead, it is sufficient that the secondary party intended, knew or believed, agreed, arranged or understood, or was aware that it was probable, that the principal would commit an act that was unlawful and objectively dangerous in the sense required by law.

283 In their joint judgment in Wilson v The Queen,^[258] Mason CJ, Toohey, Gaudron and McHugh JJ, when considering the scope of manslaughter by an unlawful and dangerous act vis-à-vis murder, emphasised the importance of preserving a clear distinction between the two offences and of ensuring that there is a close correlation between moral culpability and legal responsibility.^[259] This reasoning must also hold true when construing the statutory provisions concerning liability for those offences by way of complicity. And, in my view, the requirement that, pursuant to s 323(1)(b), (c) and (d), the secondary party have a state of mind with respect to at least the causation of really serious injury by the principal (with murderous intent) for the purposes of murder, but that the same requirement is absent for the purposes of proof of manslaughter by complicity and instead there is a substantially lesser requirement concerning a state of mind with respect to only an unlawful and dangerous act, helps to preserve the required distinction and to ensure the maintenance of an appropriate correlation between moral culpability and legal responsibility.

285 While it is important to recognise that there is an element of comparing apples with oranges when considering the secondary party’s state of mind with respect to the charged offence across the four heads of liability under s 323(1), nevertheless, I think that it might be useful, at this point, to observe the following differences and similarities that flow from the constructions on which I have settled.

286 First, while, consistently with what I understand to be their common law equivalents, but also allowing for matters such as the obvious legislative choice in paragraphs (b) and (d) to narrow^[260] the scope of liability, and the importance of internal consistency among the provisions, thus far, I have construed paragraphs (c), (b) and (d) as requiring, for a murder conviction against the secondary party, the following states of mind (inter alia):

1) Paragraph (c) requires that the secondary party (i) enter an agreement, arrangement or understanding with the principal that the deceased will be killed or caused at least really serious injury by the principal and (ii) intend that the deceased be killed or caused really serious injury.

2) Paragraphs (b) and (d) require that the secondary party be aware that, in the course of carrying out the other offence, it is probable (i) that the deceased will be killed or caused at least really serious injury by the principal and (ii) that the principal will do so with an intention to kill or inflict at least really serious injury upon him.

287 Secondly, if, for the moment, the common law on accessories is treated as applying to paragraph (a), then, while that provision would require that the secondary party, when intentionally assisting, encouraging or directing the principal, know or believe that the principal will engage in some conduct (for example, an assault) that, as it happens, results in the deceased’s death, the secondary party (i) need not have intended, known or believed that death or even really serious injury would occur but (ii) must have known or believed that the principal intended to kill or inflict at least really serious injury.

288 A question then arises as to whether, in contrast to its common law roots, paragraph (a) might be construed as requiring something roughly equivalent to the extra requirement in paragraph (c) (that the secondary party enter an agreement, arrangement or understanding that the deceased will be killed or caused at least really serious injury by the principal) and those extra requirements in paragraphs (b) and (d) (that the secondary party be aware that it is probable that the principal will kill or inflict at least really serious injury).

289 In particular, with this in mind, s 323(1)(a) might be construed as requiring proof, inter alia, that the secondary party intends and knows or believes that the principal will engage in conduct that will kill or cause at least really serious injury to the deceased (with murderous intent).

290 Of course, as I said a moment ago, I recognise that it is difficult usefully to compare different heads of statutory complicity. While all four heads are designed to achieve the same end — namely, providing for a means of inculpating secondary parties — and while there is necessarily a substantial overlap in the behaviour caught by the four provisions, each is composed of different elements and each exists to capture different types of behaviour, at least at the margins. In those circumstances, perfect symmetry between the states of mind required of the secondary party across the different heads of complicity is impossible to achieve.

291 That said, I was driven to conclude that paragraph (a) should be construed in the way just suggested. There were several reasons.

292 First, consistently with the expectation expressed in the Explanatory Memorandum, to construe paragraph (a) in this way provides a degree of internal consistency among the four provisions in s 323(1). Put another way, as much as those paragraphs cover different areas of liability, this construction at least does away with some of the unnecessary inconsistencies and asymmetries.

293 Secondly, because of that degree of consistency, this construction will make for more comprehensible, and therefore, simpler directions to juries, particularly where two or more heads of secondary liability are relied on.

294 Thirdly, while this construction of paragraph (a) potentially narrows the scope of liability when compared with its common law equivalent, it will do so only slightly, if at all, and only in deserving cases. Let me explain.

295 A secondary party’s knowledge or belief that the principal offender is or will be acting with an intention to kill the deceased or to cause him really serious injury usually will also mean that that the secondary party, when assisting, encouraging or directing the commission of murder, believes that the principal will kill or cause really serious injury.

296 In the rare cases where the secondary party believes that the principal possesses an intention to cause really serious injury but does not also believe that he will in fact cause such a result — for example, because he does not think the principal would or could go so far but, in fact, unbeknown to the secondary party, the principal possesses a knife or gun or other potentially lethal weapon and ends up spontaneously using it to kill — the secondary party’s acquittal of murder would be justified, in my view. His moral culpability in such a case would be quite a deal removed from that of the secondary party who either entered an agreement, arrangement or understanding that really serious injury be caused, and intended that it be caused, to the deceased (paragraph (c)) or was aware that it was probable that, in the course of carrying out a lesser offence, the principal would cause really serious injury with the intention of doing so (paragraphs (d) and (b)).

297 On the other hand, in my view, the moral culpability of the secondary party who intentionally assisted, encouraged or directed the principal to engage in actions believing that the principal would cause at least really serious injury with the intention of doing so possesses a level of moral culpability that is closer to the moral culpability of the secondary party in those examples of liability for murder under paragraphs (b), (c) and (d) that I just mentioned.

298 Fourthly, and in any event, this construction of paragraph (a) is not as restrictive as a literal — and arguably open — reading of its terms would require. As I have pointed out earlier, I think that the ordinary meaning of the words “intentionally assists, encourages or directs the commission of [murder]” means that the secondary party intends and knows or believes that the principal will kill the deceased. Therefore, to read the provision down as requiring proof, inter alia, that the secondary party intends and knows or believes that the principal will engage in conduct that will kill the deceased or cause him at least really serious injury (with murderous intent), when considered against the competing legislative intentions of striving for internal consistency and simplicity on the one hand and “cover[ing]” accessorial liability at common law on the other, is to do as little violence to the meaning of the words in the provision as possible, while striking an appropriate balance among the various other competing considerations.

299 Fifthly, for the same or similar reasons as I gave when dealing with paragraphs (b), (c) and (d), so too here, this construction also ensures that there is likely to be a greater equivalence between the moral culpability of the secondary party to the murder and the moral culpability of the principal offender convicted of the same murder.

300 Finally, again, for the same or similar reasons given earlier, to construe paragraph (a) as requiring that the secondary party intend and know or believe that the principal will kill or at least cause really serious injury ensures an appropriate disparity between the requirements for secondary liability for murder on the one hand and those for secondary liability for manslaughter on the other. This will also ensure an appropriate relativity between moral culpability in committing the one offence vis-à-vis the other.

301 Accordingly, it was for the foregoing reasons that I structured the elements of murder by statutory complicity under s 323(1)(a), (b), (c) and (d) in the ways set out and discussed earlier in these reasons.^[261]

302 I shall return to these elements when explaining how they were adapted to the case at hand, particularly under s 323(1)(a), as that was the only head of murder that was left to the jury ultimately.

303 I turn now to the elements of manslaughter (by unlawful and dangerous act) for the purposes of complicity under each of the paragraphs in s 323(1).

304 This analysis will be a good deal briefer than that which has been conducted in relation to murder. This is because much of the groundwork has already been laid.

305 While I considered more possible constructions of the four paragraphs in 323(1), I shall discuss just three groups of them, the last of which is the version I adopted. I shall also discuss some aspects of manslaughter under various heads of complicity at common law before coming to my preferred construction of s 323(1).

306 For a host of reasons, the same series of literal constructions that I suggested earlier, but ultimately rejected, in respect of murder under each paragraph of s 323(1) must be rejected in relation to manslaughter as well.

307 First, self-evidently, that construction would be wholly inconsistent with the construction I have reached respecting those provisions and murder.

308 Secondly, the resulting disparity between the requirements for secondary liability for murder and manslaughter would be too narrow, or perhaps even non-existent in some instances.

309 Thirdly, even allowing for the differences that would remain between those requirements, at least with respect to the knowledge, belief or awareness of the principal’s intent in the case of murder and the very limited scope for such a state of mind in respect of the largely objective fault element in manslaughter by unlawful and dangerous act, such a construction would create an asymmetry of the type that, in some cases, would render secondary liability for manslaughter as difficult, or even more difficult, to establish than secondary liability for murder. That, of course, would be unsatisfactory.

310 Finally, such a construction would be grossly inconsistent with the scope of liability for manslaughter by complicity at common law, and in ways which the legislature could not have intended. As already foreshadowed, I shall say more about the scope of complicity at common law shortly.

Incorporation of mens rea as to causing really serious injury not open either

311 I also considered, but, for some of the foregoing reasons, rejected, a construction of the paragraphs in s 323(1) that incorporated the same series of requirements I have settled on in respect of the secondary party’s intention, knowledge, belief or awareness of the principal’s causation of at least really serious injury in murder.

312 While such a construction would be consistent with murder, at least in part, nevertheless, that would be inappropriate, for several reasons.

313 First, the resulting disparity between the requirements for secondary liability for murder and manslaughter still would be too narrow, and still even non-existent in some cases.

314 Secondly, this construction still might produce cases where one head of manslaughter is more difficult to establish than another head of murder.

315 Finally, again, such a construction would render the scope of liability for manslaughter narrower than manslaughter by complicity at common law, and in ways which the legislature could not have intended.

317 As noted earlier, in Giorgianni,^[262] the High Court accepted that, while a different view may have been open at an earlier time, the law now is that an accessory can commit manslaughter without intending or knowing that death will result. Rather, citing various authorities, including Creamer,^[263] the plurality, for example, considered that, to be found guilty of manslaughter, provided the other elements were established, it was sufficient if the person was an accessory to an illegal and dangerous act from which death, unintended, results.^[264]

318 It would seem to follow, from Giorgianni itself, that the accessory, when intentionally assisting or encouraging the principal, must know or believe that the principal is committing or will commit an act which is unlawful and, objectively, meets the test of dangerousness, as the law defines it. Thus, if the act that the accessory intentionally and knowingly assisted or encouraged the principal to perform amounted to an unlawful assault, and was committed in circumstances which a reasonable person in the position of the accessory^[265] would have realised that the act was exposing the deceased to an appreciable risk of serious injury, and the deceased died as a result of that act,^[266] the accessory would be guilty of manslaughter.^[267] However, the accessory need not have realised that the act was a breach of the law^[268] or that it would cause death.^[269] Nor need the accessory know or believe that the act would create an appreciable risk of serious injury.

Manslaughter by complicity at common law — Concert, joint enterprise, etc

319 Similarly, as for acting in concert and like doctrines, if the secondary party entered an agreement, arrangement or understanding with the principal that he would commit an act which is unlawful and, objectively, meets the test of dangerousness as the law defines it, and the deceased died as a result of that act,^[270] again, the secondary party would be guilty of manslaughter.^[271]

321 More than statements of principle or the threshold elements for such a finding of guilt, the judicial pronouncements with respect to this means of committing manslaughter by complicity tend to be statements of what facts arising from the case at hand would support a verdict of guilty. This is not surprising, since the point at issue on appeal often concerns a conviction for murder based on the same doctrine. Certainly, that was the background to the High Court’s discussion of manslaughter by extended common purpose in matters such as Gillard^[272] and Nguyen.^[273]

322 Nevertheless, as demonstrated by the extracts from Gillard set out earlier in these reasons, in two of the judgments, their Honours contrasted how the doctrine of extended common purpose would ground liability for murder on the one hand and liability for manslaughter on the other on the particular facts in that case. Both judgments also reveal important points of principle.

323 Thus, for convenience, first, I shall extract again parts of what Gleeson CJ and Callinan J said:^[274]

In the present case, on the robbery hypothesis, the appellant was a party to a common design which involved the hostile confrontation of Knowles with a loaded gun. According to the principles stated in McAuliffe, the culpability of the appellant [the secondary party] in the event that Preston [the principal] shot and killed Knowles would depend upon the scope of their common design, and what he foresaw as a possible incident of the design. If he foresaw, as a possible incident of carrying out the common design, that Preston might shoot Knowles with intent to kill or cause grievous bodily harm, then he would be guilty of murder.^[275] If he foresaw, as a possible incident, that [Preston] might shoot [Knowles]^[276] but without foreseeing such intent, then he would be guilty of manslaughter. That need not depend upon whether Preston decided on the spur of the moment to kill Knowles, or whether the killing was premeditated. Furthermore, there is a difficulty in treating intention as a cause of death. The cause of death is the act that brought it about. The issue is the accused’s criminal responsibility for that act.

324 And, again, later still, after extracting a passage from McAuliffe,^[277] their Honours said this:^[278]

The general principle there referred to extends to the possibility that a person who intentionally assists in homicide may be guilty of manslaughter even though the principal offender is guilty of murder. The existence of that possibility assumes a difference in the intentions of the two parties. The secondary party may not know of, or foresee, the principal offender’s murderous intention, but may foresee the possibility of the act causing death as an incident of the common design. The essence of the reasoning in the above passage is that, when the secondary party continues to participate in the venture without having agreed to, but foreseeing as a possibility, the act causing death, that party is regarded as intentionally assisting in the commission of a crime. In the present case, if a jury decided that the appellant foresaw as a possibility that Preston would fire the loaded gun at Knowles, and continued to participate with that foresight, then he would be intentionally assisting in the commission of culpable homicide. The level of his own culpability would depend upon whether he foresaw that Preston might act with intent to kill or cause grievous bodily harm.

325 Similarly, I repeat here what Hayne J (with whom Gummow J agreed concerning the relevant principles and their application^[279]) said in principle:^[280]

Common purpose principles rightly require consideration of what an accused foresaw, not just what the accused agreed would be done. The accused is held criminally responsible for his or her continued participation in a joint enterprise, despite having foreseen the possibility of events turning out as in fact they did. It does not depend upon identifying a coincidence between the wish or agreement of A that an act be done by B and B’s doing of that act. The relevant conduct is that of A — in continuing to participate in the venture despite foresight of what may be done by B.

326 And, again, I repeat what his Honour said when applying the principles to the facts at hand:^[281]

The question for the jury would then have become, what did the appellant contemplate might happen if Preston presented a firearm in the workshop? If, as the prosecution contended at trial, the jury were to conclude that Preston must have produced the weapon and cocked it in the van before he got out, it would be open to the jury to conclude that the common purpose of the parties extended to the pointing of a loaded and cocked firearm at one or more of those in the workshop. If that were so, and if the prosecution failed to establish ... that the appellant had contemplated the deliberate use of the weapon to kill or do grievous bodily harm, the appellant would, nonetheless, be guilty of manslaughter by unlawful and dangerous act. On this hypothesis, Preston would have gone beyond what had been agreed and contemplated by the appellant when he deliberately shot those in the workshop, but the presentation of the loaded and cocked firearm would have been within the scope of the common purpose.

327 In my view, the following points may be made about their Honours’ remarks. First, while there is an overlap with some of the points their Honours wished to make about murder as well, the underlined passages point up most clearly the factual bases for and the principles underlying manslaughter by extended common purpose in the case at hand.

328 Secondly, in Gleeson CJ and Callinan J’s view, as a matter of fact, foreseeing the possibility that Mr Preston might shoot or fire a loaded gun at the deceased without murderous intent would ground manslaughter.

329 Thirdly, as I understand Hayne J, he suggests that foresight of the possibility of “the presentation of the loaded and cocked firearm would have been within the scope of the common purpose” and also would be sufficient to ground manslaughter. (I assume that his Honour was of the latter view on the basis that it was also open to conclude that presentation of the gun in those circumstances would be capable of being held to be a cause of death.)

330 Finally, and perhaps more importantly for present purposes, the two judgments reveal the following matters of principle. First, in speaking of foresight of “the act causing death”, that “[Mr Preston] might shoot [Mr Knowles]” and that Mr Preston “would fire the loaded gun at Knowles”, Gleeson CJ and Callinan J may be taken as accepting the requirement that the accused must foresee the possibility of the act (or perhaps an act of the type) that caused death. I think Hayne J may be taken as meaning the same thing, when he spoke of “foresight of what may be done by B” and of “the presentation of the loaded and cocked firearm”.

331 Secondly, I think it is also to be inferred that their Honours have applied the objective test of dangerousness required for manslaughter by an unlawful and dangerous act to those factual scenarios and satisfied themselves that it would be open to find that test established on those facts. Put another way, their Honours (implicitly) have concluded that the act (or type of act) that Mr Gillard foresaw as possible was one which was unlawful (such as an assault by presentation of a loaded gun) and, considered objectively, met the test of dangerousness (i.e. an act which a reasonable person in the position of Mr Gillard would have realised would expose the deceased to an appreciable risk of serious injury).

332 In Nguyen, the High Court accepted Mr Nguyen’s submission that a viable and entirely apt alternative verdict of manslaughter, based on extended common purpose, arose:^[282]

if the jury were satisfied that [Mr Nguyen] knew of the presence of the gun before the shootings occurred, and was party to a plan that violence would be threatened to recover a drug debt, it was possible that the purpose was to do no more than cause serious harm to another short of really serious injury.

333 While those remarks speak of foresight of the possibility of (the principal’s) purpose being to do no more than cause serious harm — and therefore of a subjective state of mind in Mr Nguyen, not only as to the act, but also as to its consequences — in my view, they are also consistent with the statements of principle to be gleaned from Gillard. In other words, the Court accepted (implicitly) that, on this hypothesis, the act (or type of act) that Mr Nguyen foresaw as possible was one which was unlawful (such as an assault, again by presentation of a loaded gun) and, considered objectively, met the test of dangerousness.

334 None of the other High Court matters discussed earlier, when considering extended common purpose and murder, seemed to add anything further with respect to the principles to be applied when considering extended common purpose and manslaughter.

335 In those circumstances, I think that the common law (of Australia) provides that, in order for a secondary party to be guilty of manslaughter (by an unlawful and dangerous act) pursuant to extended common purpose reasoning, the following things must be established:

1) First, the secondary party entered an agreement, arrangement or understanding with another or others to commit an offence.

2) Second, the secondary party continued to participate in that agreement (etc) to commit an offence despite his foresight of the possibility that one of the parties to that agreement (etc), in carrying out the agreement (etc), might commit manslaughter. This means that he foresaw the possibility that one of the others, in carrying out that agreement (etc), might commit an act (or an act of the type) which is unlawful and, considered objectively, is dangerous.

3) Third, by committing that act (or an act of that type) in the course of carrying out that agreement, the other person killed the deceased in circumstances amounting to manslaughter (or murder).

336 I turn now to my preferred construction of the requirements in the four separate paragraphs in s 323(1) in respect of manslaughter (by unlawful and dangerous act).

337 As I pointed out earlier, in short, that preferred construction is that, in addition to the other required elements, it is sufficient if the secondary party intended and knew or believed (paragraph (a)), agreed, arranged or understood (paragraph (c)), or was aware that it was probable (paragraphs (b) and (d)), that the principal would commit an act that was unlawful and which, measured objectively, was dangerous in the sense required by law.

338 More particularly, broken down into the necessary elements, each of the four ways of committing manslaughter (by unlawful and dangerous act) by complicity might be set out in the following ways.

339 The first and second ways, pursuant to s 323(1)(a) and (b) respectively, have already been set out in the overview at the commencement of these reasons.^[283] Accordingly, I shall not reproduce them here.

340 But I shall set out the third and fourth ways here. So, thirdly, on this construction, in order for a secondary party to be guilty of manslaughter in reliance on s 323(1)(c), the following things must be established:

1) First, the secondary party entered into an agreement, arrangement or understanding with the principal that he would commit an act (say, punching the deceased) and, pursuant to that agreement, arrangement or understanding, the principal punched the deceased and thereby caused his death.

2) Secondly, the secondary party, by entering into the agreement, arrangement or understanding, intended that the principal would commit an act that was both unlawful (such as an assault by punching) and dangerous (i.e. an act which a reasonable person in the position of the secondary party would have realised would expose the deceased to an appreciable risk of serious injury).

341 Fourthly, on this construction, in order for a secondary party to be guilty of manslaughter in reliance on s 323(1)(d), the following things must be established:

1) First, the secondary party entered into an agreement, arrangement or understanding with the principal to commit an offence — such assaulting the deceased by punching^[286] (“the agreed assault”).

2) Second, the secondary party intended that the principal would commit the agreed assault on the deceased.

3) Third, the principal committed^[287] the agreed assault on the deceased.^[288]

4) Fourth, the secondary party, at the time of his entry into the agreement, arrangement or understanding as to the agreed assault, was aware that it was probable that, in the course of carrying out the agreed assault, the principal would commit an act that was both unlawful (such as a more serious assault) and dangerous (i.e. an act which a reasonable person in the position of the secondary party would have realised would expose the deceased to an appreciable risk of serious injury).

5) Fifth, the principal, in the course of carrying out the agreed assault, either:^[289]

Conclusions on elements of manslaughter by statutory complicity in general

342 As I have already indicated, I think that, for several reasons (which I shall not repeat here), the foregoing construction of each paragraph sits harmoniously with the others vis-à-vis manslaughter and also with the construction applied to the corresponding requirements for intentional murder by complicity.

343 Further, allowing for the obvious changes effected by the new provisions, this construction is otherwise consistent with the scope of the common law, which seems to be what the legislature intended.

344 I turn now to my conclusions on the elements of statutory complicity as they applied to murder and manslaughter in this particular case.

345 Much earlier in these reasons, I mentioned that, when it came to applying those general principles to the particular circumstances of this case, it became apparent that there was an important complicating factor. That complication was that there was a powerful argument on the evidence, at least from the perspective of Milan Jovic and Sasa Jovic, that Mr Novakovic’s grasping of a knife and stabbing Mr Dimovski came completely out of the blue. As I also noted at that point, the circumstances were such that, if this were a United Kingdom case, the so-called fundamentally different act rule might come into play. Later in these reasons, however, I opined that it is difficult to say what status the rule has, if any, in the common law of Australia.

346 Nevertheless, what I have endeavoured to show is that, in construing the four paragraphs in s 323(1) as I have in respect of murder — and, in particular, by incorporating the requirements as to intention, knowledge or belief (s 323(1)(a)), agreement, understanding or arrangement (s 323(1)(c)), and awareness that it is probable (s 323(1)(b) and (d)) that at least really serious will be caused by the principal — it is less likely that a secondary party would be found guilty of murder in circumstances that otherwise might attract the fundamentally different act rule. To repeat, this is because to require an intention or agreement, or awareness of the probability, that really serious injury will be caused by the principal (in addition to an intention, agreement or awareness of the principal’s murderous intent) is more likely, than is the absence of such a requirement, to ensure that only the secondary party with an expectation that the principal will use a weapon to cause really serious injury (or even death) would be convicted.

347 That said, such a requirement provides no guarantee in every case of acquittal of those who might have been acquitted under the fundamentally different act rule. Nor of course is this same possible safeguard present in my preferred construction of the requirements for proof of manslaughter by complicity. This is because that construction does not include any requirement in the secondary party’s state of mind as to intention, agreement or awareness as to the causation of really serious injury (or any other level of harm for that matter).

348 An example of where the safeguard might not be effective is represented by the facts of R v Gamble.^[291] The four accused, who were members of the Ulster Volunteer Force, entered upon a joint venture to inflict punishment upon Mr Patton, another member of the group. Two of the men, Mr Douglas and Mr McKee, contemplated that Mr Patton would be subjected to a severe beating or to “kneecapping” (firing a bullet into his kneecap). In the course of the attack, Mr Patton was brutally murdered by the other two accused. He was shot with four bullets, two of which would have been fatal but for the fact that his throat was cut with a knife, which killed him. Mr Douglas and Mr McKee had not foreseen killing with a knife or firing of bullets into a vital part of the body. It was argued, however, on behalf of the prosecution that the joint enterprise of committing grievous bodily harm, combined with the rule that an intent to cause such harm grounded a conviction for murder in respect of a resulting death, was sufficient to make Mr Douglas and Mr McKee liable for murder notwithstanding that they had not foreseen the actions which actually caused death.

349 Carswell J, sitting without a jury in the Crown Court of Northern Ireland, said this:^[292]

... When an assailant ‘kneecaps’ his victim, i.e. discharges a weapon into one of his limbs, most commonly into the knee joint, there must always be a risk that it will go wrong and that an artery may be severed or the limb may be so damaged that gangrene sets in, both potentially fatal complications. It has to be said, however, that such cases must be very rare among victims of what is an abhorrent and disturbingly frequent crime. Persons who take part in inflicting injuries of this nature no doubt do not generally expect that they will endanger life, and I should be willing to believe that in most cases they believe that they are engaged in a lesser offence than murder.

The infliction of grievous bodily harm came within the contemplation of Douglas and McKee, and they might therefore be regarded as having placed themselves within the ambit of life-threatening conduct. It may further be said that they must be taken to have had within their contemplation the possibility that life might be put at risk. The issue is whether it follows as a consequence that they cannot be heard to say that the murder was a different crime from the attack which they contemplated, and so cannot escape liability for the murder on the ground that it was outside the common design.

To accept this type of reasoning would be to fix the accessory with consequences of his acts which he did not foresee and did not desire or intend. The modern development of the criminal law has been away from such an approach and towards greater emphasis on subjective tests of criminal guilt, as Sir Robin Cooke pointed out in Chan Wing-Siu. Although the rule remains well entrenched that an intention to inflict grievous bodily harm qualifies as the mens rea of murder, it is not in my opinion necessary to apply it in such a way as to fix an accessory with liability for a consequence which he did not intend and which stems from an act which he did not have within his contemplation. I do not think that the state of the law compels me to reach such a conclusion, and it would not in my judgment accord with the public sense of what is just and fitting.

350 Carswell J went on to find that the killing of Mr Patton by the other two accused was a crime of a different kind from the beating or kneecapping contemplated and authorised by Mr Douglas and Mr McKee, and that the killing did not follow directly as a result of the crime to which they lent themselves as accessories. Accordingly, he found both Mr Douglas and Mr McKee not guilty of murder but guilty of wounding with intent to commit grievous bodily harm.^[293]

351 In Powell, when considering the fundamentally different act rule, Lord Hutton said this of Carswell J’s reasoning Gamble:^[294]

In my opinion this decision was correct in that a secondary party who foresees grievous bodily harm caused by kneecapping with a gun should not be guilty of murder where, in an action unforeseen by the secondary party, another party to the criminal enterprise kills the victim by cutting his throat with a knife. The issue (which is one of fact after the tribunal of fact has directed itself, or had been directed, in accordance with the statement of Lord Parker CJ in [R v Anderson & Morris]^[295]) whether a secondary party who foresees the use of a gun to kneecap, and death is then caused by the deliberate firing of the gun into the head or body of the victim, is guilty of murder is more debatable although, with respect, I agree with the decision of Carswell J on the facts of that case.

352 In much the same way that Lord Hutton expressed some reservation in the last sentence, I suspect that reasonable minds might differ as to whether, either as a matter of moral culpability or as a matter of construction, any or all of the four heads of complicity in s 323(1) of the Crimes Act should or would render the likes of Messrs Douglas and McKee liable for murder, manslaughter or neither offence. While I need not express a view on which side of the line I might fall in such a case, nevertheless, I can see the conundrum raised by the facts posited in his Lordship’s last sentence.

353 But the present case presented no such doubt in my mind. In the case against each of Milan Jovic and Sasa Jovic, it struck me that it was essential to proof of both murder and manslaughter pursuant to s 323(1)(a) that the accused in question was aware of Mr Novakovic’s taking up of the knife and intended that he should use it to stab Mr Dimovski. This is because, without that awareness and intention, the act that caused death would be so remote from the type of assault that the accused, up to that point, were involved in, or encouraging or assisting Mr Novakovic to perpetrate, that it could not reasonably be said to be an act (or consequence) that either accused intended, knew or believed would occur.

354 While both murder and manslaughter, when alleged pursuant to s 323(1)(b) (or pursuant to paragraph (d), for that matter) are, in a sense, likely to be at least one step further removed from the act causing death, in the circumstances of this case, Mr Doyle nevertheless agreed that awareness of Mr Novakovic’s taking up of the knife was essential to proof of both offences against both of the Jovic brothers under paragraph (b) as well.

The elements of murder and manslaughter under s 323(1)(a) applied to this case

355 It is for all of those reasons that in the particular circumstances of this case — including the centrality of the awareness of Mr Novakovic’s taking up of the knife and his use of it, and the fact that the stabbing to the chest caused Mr Dimovski’s death — I concluded that the general directions needed to be adapted as follows.

356 In particular, in order for Milan Jovic to be found guilty of the murder of Mr Dimovski in reliance on s 323(1)(a), I considered that the Crown must prove, beyond reasonable doubt, on the evidence admitted in his trial, each of the following elements and sub-elements:

1) First, prior to Mr Novakovic’s act of stabbing Mr Dimovski in the chest, Milan Jovic:

b) by a conscious, voluntary and deliberate act or acts — namely, punching, kicking or stomping Mr Dimovski, or attempting to do so, while beside Mr Novakovic — performed without lawful justification or excuse, intentionally assisted or encouraged Mr Novakovic to stab Mr Dimovski (“his act or acts of assistance or encouragement”).

2) Secondly, Milan Jovic, by his act or acts of assistance or encouragement, intended that Mr Novakovic, by a conscious, voluntary and deliberate act performed without lawful justification or excuse, would stab Mr Dimovski and thereby kill him or cause him really serious injury with the intention of killing him or of causing him really serious injury.

3) Thirdly, Mr Novakovic committed murder — i.e. Mr Novakovic, by a conscious, voluntary and deliberate act performed without lawful justification or excuse, stabbed Mr Dimovski with a knife and thereby caused his death, and did so with the intention of killing him or of causing him really serious injury.

357 For the same reasons, I concluded that, in order for Milan Jovic to be found guilty of the manslaughter of Mr Dimovski in reliance on s 323(1)(a), the Crown must prove, beyond reasonable doubt, on the evidence admitted in his trial, each of the following elements and sub-elements:

1) First, prior to Mr Novakovic’s act of stabbing Mr Dimovski in the chest, Milan Jovic:

2) Secondly, Milan Jovic, by his act or acts of assistance or encouragement, intended that Mr Novakovic, by a conscious, voluntary and deliberate act performed without lawful justification or excuse, would stab Mr Dimovski in circumstances^[296] in which a reasonable person in the position of Milan Jovic would have realised would expose Mr Dimovski to an appreciable risk of serious injury.

a) committed manslaughter — i.e. by a conscious, voluntary and deliberate act performed without lawful justification or excuse, Mr Novakovic stabbed Mr Dimovski with a knife, and thereby caused his death, in circumstances^[297] in which a reasonable person in the position of Mr Novakovic would have realised would expose Mr Dimovski to an appreciable risk of serious injury; or

b) committed murder — i.e. by a conscious, voluntary and deliberate act performed without lawful justification or excuse, Mr Novakovic stabbed Mr Dimovski with a knife and thereby caused his death, and did so with the intention of killing him or of causing him really serious injury.

358 At this point, I should explain how it came about that, ultimately, only the foregoing heads of liability for murder and manslaughter against Milan Jovic were left to the jury and that the alternative bases for liability, pursuant to s 323(1)(b), were abandoned.

359 After the no-case applications were determined, I invited the Crown to reconsider reliance on s 323(1)(b), and persist only with the case for both murder and manslaughter pursuant to s 323(1)(a). In the particular circumstances of this trial, the alleged act or acts of assistance or encouragement to stab (for the purposes of s 323(1)(a)) and the alleged act or acts of assistance or encouragement to assault (for the purposes of s 323(1)(b)) — namely, punching, kicking or stomping Mr Dimovski, or attempting to do so, while beside Mr Novakovic — were the same. Further, neither basis of liability could be established unless Milan Jovic was aware of Mr Novakovic’s possession of the knife before he used it. In those circumstances, the point of difference in the required proofs of the two bases of liability was so small (if it existed at all) that leaving both bases would serve only to complicate the jury’s task, and unnecessarily so. In those circumstances, Mr Doyle, wisely and fairly, in my respectful opinion, took up my invitation.

360 In respect of Sasa Jovic, I concluded, at least initially, that a like series of elements could be set out for each of the two alternative heads of murder and manslaughter in his case as well. The difference, however, was that the alleged act of assistance or encouragement relied on in each first element was that, prior to Mr Novakovic’s act of stabbing Mr Dimovski in the chest, Sasa Jovic, by brandishing a knife at the men on the other side of the bench while near Mr Novakovic, intentionally assisted or encouraged Mr Novakovic to stab Mr Dimovski (for the purposes of s 323(1)(a)) or to assault him (for the purposes of s 323(1)(b)).

361 Again, I should point out, however, that, had Sasa Jovic’s no-case submissions on murder and manslaughter failed, I would not have been inclined to leave to the jury the alternative heads of liability for murder and manslaughter, pursuant to s 323(1)(b). Instead, for essentially the same reasons that caused me to take that course in the case of Milan Jovic, I would have invited the Crown to confine the case against Sasa Jovic to both forms of homicide pursuant to s 323(1)(a).

362 Since Sasa Jovic’s no-case submission on murder and manslaughter succeeded, and since the Crown ultimately abandoned reliance on s 323(1)(b) to prove either murder or manslaughter against Milan Jovic, the draft directions on s 323(1)(b) were not developed in a way that adequately reflected the concession that awareness of Mr Novakovic’s taking up of the knife was essential to proof of those offences under that head of complicity as well. In those circumstances, I do not think it is useful to set out the earlier versions of the drafts concerning the case against Sasa Jovic.

Ruling 3: Aggravated burglary — Intention to commit an offence involving an assault

363 I turn now to a matter concerning the elements of aggravated burglary on which I was required to rule.

364 In particular, the question was whether an intention to assist or encourage another to assault a person in a building was a sufficient intention “to commit an offence involving an assault to a person in the building which is punishable with imprisonment for a term of five years or more” within the meaning of s 76(1)(b)(i) of the Crimes Act.

365 It will be remembered that the Crown put its case of aggravated burglary against each of Milan Jovic and Sasa Jovic on the basis that the accused entered either with an intention to assault a person in the kitchen (namely, Mr Dimovski) or with an intention to assist or encourage Mr Novakovic to assault a person in the kitchen (again, Mr Dimovski).

366 Mr Sheales submitted that it was not open in law to leave the latter alternative. As I understood him, his point was that it would be open, in law, to employ statutory complicity reasoning to establish the offence of aggravated burglary. For example, this could have been done by alleging, pursuant to s 323(1)(a) of the Crimes Act, that Sasa Jovic assisted or encouraged Mr Novakovic to commit an aggravated burglary. But that was not this case. Instead, in Mr Sheales’ submission, the Crown were seeking to employ statutory complicity reasoning to establish the ulterior intention to commit an offence involving an assault. That, he submitted, was not open in law.

367 Mr Doyle submitted that the words “intent to commit an offence involving an assault” in s 76(1)(b)(i) embraced both an intent to commit an assault personally and an intent to commit an assault by way of complicity, including by assisting or encouraging another to commit an assault. It was not a question of applying the complicity provisions to prove an offence. Instead, it was merely a matter of employing the complicity provisions to determine what form of intent might satisfy the definition in s 76(1)(b)(i).

(1) A person is guilty of aggravated burglary if he or she commits a burglary and—

(a) at the time has with him or her any firearm or imitation firearm, any offensive weapon or any explosive or imitation explosive; or

(b) at the time of entering the building or the part of the building a person was then present in the building or part of the building and he or she knew that a person was then so present or was reckless as to whether or not a person was then so present.

(1) A person is guilty of burglary if he enters any building or part of a building as a trespasser with intent—

(ii) involving any damage to the building or to property in the building or part in question—

370 For the purposes of the charge in issue, the Crown relied on a coupling of the conduct and intent specified in s 76(1)(b)(i) and s 77(1)(b) to allege an aggravated burglary.

371 Turning to the requirements of s 76(1)(b)(i), common assault is a common law offence the maximum penalty for which is five years’ imprisonment.^[298] That offence therefore meets the test of being “punishable with imprisonment for a term of five years or more”.

372 There was no dispute that to have an intent personally to commit a common assault on a person in a building or part thereof would suffice as an intent for the purposes of s 76(1)(b)(i).

373 The question was whether the words “intent to commit an offence involving an assault” in s 76(1)(b)(i) embraced an intent to commit an assault (i.e. a common assault) by way of complicity — in particular, by assisting or encouraging another to commit such an assault.

374 In my view, Mr Doyle was correct to submit that the provision does embrace such an intent.

375 As a matter of law, by s 323(1)(a) of the Crimes Act, a person who intentionally assists or encourages the commission of an offence is “involved in the commission of the offence”. And, by s 324(1), if an offence 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”.

376 Thus, I think it follows that a person who has an intent to assist or encourage the commission of an offence should be regarded as a person who has an “intent to commit an offence” as much as a person who intends to commit an offence personally (or as a principal) has an intent to commit an offence.

377 Where that offence is a common assault, the same person, in my opinion, is one who has an “intent to commit an offence involving an assault” within the meaning of the provision. This is because I think, first, that to commit an assault falls within the phrase “commit an offence involving an assault”. (No doubt other offences would fall within that definition, such as intentionally causing injury, intentionally causing serious injury, rape, attempted murder and murder, to name a few.^[299]) Secondly, an intent to commit an assault therefore must be an “intent to commit an offence involving an assault”.

378 Accordingly, I concluded that an intent to commit a common assault personally, and an intent to encourage or assist another to commit a common assault, were each embraced by the composite phrase “intent to commit an offence involving an assault ... punishable with imprisonment for a term of five years or more” within the meaning of s 76(1)(b)(i).

379 Contrary to Mr Sheales’ submission, I could see no bar on using the complicity provisions to reason in this way. Indeed, it would strike me as absurd if an intention to commit an offence by way of complicity would not suffice for the purposes of the provision. Instead, as Mr Doyle submitted, it was legitimate to employ the complicity provisions to determine whether the intent alleged fell within s 76(1)(b)(i).

380 I should add that the fact that ss 323 and 324 speak of being “involved in the commission of an offence” and that s 76(1)(b)(i) employs similar words — “intent to commit an offence involving an assault” — made not a jot of difference to the analysis.

381 While I need not decide the matter, I venture to say that the result would have been the same under the common law of accessorial liability.

382 In the result, I left aggravated burglary to the jury against Milan Jovic and Sasa Jovic on the two alternate bases alleged by the Crown.

383 For completeness, I should point out that, after this trial, I noticed that, in s 3(1) of the Sentencing Act 1991 (Vic), the phrase “offence involving an assault”, in that Act, is defined to mean various offences in the Crimes Act listed in the definition. Common assault is not mentioned in that list. I was not aware of the provision at the time of the trial. I suspect this has no bearing on the foregoing analysis, but, of course, I have not heard any submissions on the point.

385 As indicated earlier, after the close of the Crown case, Mr Sheales submitted that Sasa Jovic had no case to answer on the charges of affray, murder and manslaughter. Mr Dunn submitted that Milan Jovic had no case to answer on the charges of murder and manslaughter. Mr Doyle made submissions to the contrary in each case.

388 I turn first to the submission that Sasa Jovic had no case to answer on the charge of affray.

389 The Crown case, in substance, was that Sasa Jovic committed an affray by taking a step or two towards Mr Dimovski and swinging his arm towards his head region with a bottle in hand. It is not clear whether the bottle struck Mr Dimovski. Rather, it seems that Mr Jovic’s wrist may have come into contact with Mr Dimovski’s shoulder and/or head, which caused the bottle to dislodge from Mr Jovic’s grasp and fly off harmlessly.

390 The principal argument advanced by Mr Sheales was that that alleged behaviour was not capable of causing any person of reasonable firmness who might witness it to be terrified. He emphasised the extremity of being terrified, as distinct from being frightened or alarmed or the like, none of which will suffice. He submitted that the very brief duration and nature of Mr Jovic’s alleged behaviour made it impossible for a hypothetical bystander of the requisite firmness to be terrified. Mr Doyle submitted that it was open on the evidence to find an affray had been committed by Sasa Jovic, particularly given the nature of the alleged behaviour in question.

391 I concluded that there was a case to answer. While it might not have been the most serious example of affray (far from it, in fact), I was satisfied nevertheless that it was open on the evidence to a properly instructed jury to find, beyond reasonable doubt, that the elements of affray were established. In particular, I thought it was open on the evidence to find that the behaviour alleged would cause a person of reasonable firmness or courage who witnessed it to be terrified. I accepted that some might think that to swing an arm holding a bottle towards the head of a man from behind would not be capable of causing a bystander of reasonable firmness to be terrified. Indeed, I expect this is an area where reasonable minds might differ. But, as I have said, I accepted that such behaviour was capable of satisfying the test, and therefore that the charge should go to the jury.

392 Mr Sheales also submitted, first, that any reaction by the bystander must be contemporaneous with the behaviour constituting the alleged affray and, second, that the jury’s view of Mr Jovic’s intention was irrelevant to the question whether a bystander of reasonable firmness would be terrified.

393 On the first point, Mr Sheales referred me to a passage in the judgment of the English Court of Appeal in R v Keys,^[300] where the following was said:^[301]

The crime of affray may range from the comparatively trivial rowdy scene which arises spontaneously, usually at closing time outside a public house, a matter which is terrifying for a short time but subsides quickly. At the other end of the scale is the sort of lengthy pitched battle going on for hours ... with scores of casualties, arson, looting and so on.

394 Mr Sheales fixed on the words “which is terrifying for a short time but subsides quickly”. I was not sure that that passage necessarily supported his argument. Indeed, my initial reaction was that the point was not a good one.

395 On reflection, however, I came to a different view, but based upon general principle. That said, it was not a view that availed Sasa Jovic on the no-case submission. Let me explain.

396 Generally speaking, the elements of an offence may be part of either the actus reus or the mens rea. Also, in order that liability for an offence may be established, generally, the actus reus and the mens rea of an offence must be contemporaneous. While the effect on a bystander might not easily fall into either part of that usual taxonomy, absent being pointed to any authority on point, I concluded that the effect in question must be regarded as part of the actus reus. If that were so, then, I reasoned that that effect must occur concurrently with the behaviour and intention which formed part of the actus reus and the mens rea, both of which must be contemporaneous with each other. While the ongoing psychological effects on a victim of the terror that persisted after the violence that gave rise to an affray might be relevant to sentencing, it seemed to me to be wrong to say that liability for such an offence might be determined by such subsequent reactions. Instead, the terror required must be capable of being experienced by the hypothetical bystander of reasonable firmness who might witness it at some point during the intentional violence relied on to make out the affray.

397 Further, while the alleged intentional violence in question in this case was of short duration, it was nevertheless open to a properly instructed jury to find that a person of reasonable firmness would be terrified at some point while witnessing that behaviour.

398 As to the second point concerning the intention of the accused, I rejected Mr Sheales’ submission. If it was open to a hypothetical bystander to think that the accused was trying to strike the other person on the back of the head with a bottle, then that, in my view, was a factor capable of informing the question whether the hypothetical bystander would be terrified. If the bystander believed that the accused was only pretending to strike, then that would be relevant too. On the evidence in this case, it was open to the jury to be satisfied that a hypothetical reasonable bystander would conclude that Sasa Jovic was intending to strike Mr Dimovski with the bottle and, in turn, that that was capable of informing whether that bystander would be terrified.

399 For these reasons, I was satisfied that Sasa Jovic had a case to answer on the charge of affray.

400 I turn now to the question whether Sasa Jovic had a case to answer on murder or manslaughter.

401 Mr Sheales pressed three broad submissions as to why there was no case to answer. First, he submitted that it was not open to find that Sasa Jovic was the person who brandished the knife in the kitchen, as depicted on the CCTV from 2:16:42.

402 Second, he submitted that it was not open to find that Sasa Jovic was aware of Mr Novakovic’s taking up and use of the knife at any time prior to the stabbing.

403 Thirdly, he submitted that it was not open to find that the fatal stabbing occurred after 2:16:42, which was when the alleged act or acts of assistance or encouragement for the purposes of homicide by Sasa Jovic commenced. Put another way, he submitted that it was not open on the evidence to exclude the reasonable possibility that the fatal stabbing occurred immediately after Mr Novakovic took up the knife , at about 2:16:40-41, and therefore before the alleged act or acts of assistance or encouragement for the purposes of homicide by Sasa Jovic commenced at 2:16:42.

404 As things turned out, for the purposes of the no-case ruling, it was sufficient to deal only with the third of those submissions.

405 As both Mr Sheales and Mr Doyle accepted, given the way the Crown case on both forms of homicide had been framed, there could be no case to answer by Sasa Jovic if it was not open, on the evidence, for a jury to exclude the reasonable possibility that Mr Dimovski was stabbed in the chest immediately after Mr Novakovic grabbed the knife (which occurs at about 2:16:40) or otherwise before 2:16:42. This is because the alleged act or acts of assistance or encouragement, for the purposes of either form of homicide (namely, brandishing a second knife by Sasa Jovic), did not begin until 2:16:42. Put simply, on this analysis, Sasa Jovic’s alleged act of encouragement or assistance would have come too late to inculpate him in Mr Novakovic’s act of stabbing Mr Dimovski to the chest, and therefore too late to inculpate him in either form of homicide.

406 Both parties put several arguments on this issue. I considered the evidence of the relevant witnesses and studied the CCTV footage very carefully — over and over again.

407 In short, I reached these views. First, it was open to find that Mr Novakovic stabbed Mr Dimovski immediately after he grabbed the knife at 2:16:40. The movements that could be seen on the CCTV were consistent with his stabbing the deceased with his right hand.

408 Secondly, while both Jove Dimovski and Tony Gorsevski gave evidence of seeing either a stabbing motion or a waving of the knife up and down near the floor, their evidence did not isolate — and was not capable of isolating — the time of those occurrences as being definitively at some time after 2:16:42.

409 Thirdly, their evidence was consistent with seeing such occurrences when they had just come into the kitchen, which could be seen on the CCTV at around 2:16:40-41.

410 Fourthly, even if it could be said that they were speaking only of later events — such as at 2:16:45-47 — that does not, and cannot, exclude the reasonable possibility that the fatal stab wound was inflicted at about 2:16:40 or before 2:16:42. This is because, at that time, they may have seen stabbing motions that did not connect with Mr Dimovski. In this regard, it is important to note that neither witness claims to have seen any actual stabbing occur. While Jove Dimovski’s earlier evidence suggested otherwise, he expressly recanted that under cross-examination by Mr Mandy.

411 For these reasons, I accepted that it was not open on the evidence to exclude the reasonable possibility that Deni Dimovski was fatally stabbed in the chest by Mr Novakovic immediately after he grabbed the knife (at about 2:16:40) or otherwise before 2:16:42.

412 It therefore followed that, given the way that the cases of assisting or encouraging murder and manslaughter by Mr Novakovic were put, and given the way that the Crown put the alternative cases of assisting or encouraging an assault by Mr Novakovic while being aware that it was probable that murder (or manslaughter) would be committed in the course of carrying out the assault, none of those cases of either murder or manslaughter could be made out on the evidence. In short, Sasa Jovic’s alleged act of encouragement or assistance came too late to inculpate him in any homicide.

413 Accordingly, I concluded that Sasa Jovic had no case to answer on either murder or manslaughter.

414 I turn now to the question whether Milan Jovic had a case to answer on murder or manslaughter.

415 Mr Dunn put several submissions. In essence, his point was that it was not open on the evidence to conclude that Milan Jovic was aware of Mr Novakovic’s taking up of the knife at any time prior to the fatal stabbing. Alternatively, he submitted that, even if he were wrong about that, Milan Jovic could not have had sufficient time to form the intention to assist or encourage Mr Novakovic to stab Mr Dimovski and either murder him or commit manslaughter.

416 As Mr Doyle accepted, given the way the Crown case on both forms of homicide had been framed, that there could be no case to answer by Milan Jovic if either of those submissions was accepted.

417 I must confess that, initially, I was attracted to Mr Dunn’s submission, based on his analysis of the evidence. However, in the end, it is a rather simple pair of points made by Mr Doyle that turned me around, such that I found that there was a case to answer by Milan Jovic on both charges.

418 These are the points. First, while Mr Dunn submitted that Milan Jovic’s head was turned away at critical times such that he was in no position to see Mr Novakovic grab the knife and begin using it, on closer inspection of the CCTV, I did not accept that submission. Instead, consistently with Mr Doyle’s submission to the contrary, I thought it was open for a jury to conclude, from the CCTV, that Milan Jovic could see those things.

419 Secondly, while Mr Dunn made a very persuasive submission to the effect that, even if he did see the knife, Milan Jovic did not have time to process what he saw and form the intention required for either murder or manslaughter by way of statutory complicity, again, on reflection, I thought it was open on the evidence on the CCTV for a jury to conclude otherwise. The adverse inference was all the more compelling when regard was had to the fact that it appeared that Milan Jovic engaged in the acts of assistance or encouragement relied on — namely, punching, kicking or stomping, or trying to do so, while right beside Mr Novakovic — both before, during and after the period during which the fatal stabbing must have occurred. Mr Dunn saw this as a badge of innocence — because, to use his attractive turn of phrase, Milan Jovic was “still on Plan A” (by which he meant Mr Jovic was still thinking about an assault, not about any stabbing). But, in my view, as powerful as that and other arguments he advanced were, they surely were matters for a properly instructed jury.

420 For these reasons, I was satisfied that there was a case for Milan Jovic to answer on each of the ways that murder and manslaughter was put against him.

421 It followed that I was required to direct verdicts of not guilty of murder and manslaughter in the case of Sasa Jovic. I was also required to leave for the jury’s consideration verdicts in respect of affray concerning all three accused; aggravated burglary concerning Milan Jovic and Sasa Jovic only;^[302] and murder and manslaughter concerning Mr Novakovic^[303] and Milan Jovic only.

422 Finally, after delivering these rulings, I reminded counsel of the remarks I had made in the course of argument about the alternative bases for murder and manslaughter, put pursuant to s 323(1)(b) of the Crimes Act, against the Jovic brothers. In short, on reflection, I expressed doubt that those would be proper bases for leaving either form of homicide in this case. As I have mentioned earlier, Mr Doyle took up that invitation and ultimately pressed murder and manslaughter against Milan Jovic only on the bases outlined earlier pursuant to s 323(1)(a).

^[1] Contrary to common law (the maximum penalty for which is fixed by statute at five years’ imprisonment — see s 320 of the Crimes Act 1958 (Vic)).

^[3] Contrary to common law (the maximum penalty for the offence is fixed by statute at imprisonment for life — see s 3 of the Crimes Act 1958 (Vic)).

^[4] Throughout these reasons, I shall refer to the person who is alleged to have committed the offence personally as the principal; and to the person who is alleged to have committed an offence by reason of statutory complicity as a secondary party.

^[5] As will be seen below, Mr Novakovic also inflicted another stab wound to Mr Dimovski’s left arm, but that wound made no significant contribution to his death.

^[6] Contrary to common law (the maximum penalty for the offence is fixed by statute at 20 years’ imprisonment — see s 5 of the Crimes Act 1958 (Vic)).

^[11] As it turned out, it became apparent during those submissions that it would be necessary to alter the final drafts of the elements in respect of statutory complicity. See below.

^[12] By which I mean a killing committed by a conscious, voluntary and deliberate act performed with an intention to kill or to cause at least really serious injury and without lawful excuse, but not reckless murder (as to which, see, for example, The Queen v Crabbe [1985] HCA 22; (1985) 156 CLR 464) or constructive murder (pursuant to s 3A of the Crimes Act 1958 (Vic)).

^[13] See, for example, Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313 at 325, 327 & 332-334 (per Mason CJ, Toohey, Gaudron and McHugh JJ). I did not consider manslaughter by criminal negligence.

^[14] I do this only for simplicity at this point. These requirements should be spelt out where necessary.

^[15] As will be seen below, the Crown relied only on “assistance or encouragement”, and not on “direction”, for the purposes of liability for both murder and manslaughter under s 323(1)(a).

^[16] Usually, I would set out the elements of murder here, depending on the issues at trial.

^[17] Again, these things must be proved, beyond reasonable doubt, on the evidence admissible against the secondary party. For ease of expression, I shall not keep repeating these requirements.

^[18] The foundational offence need not be an assault. It might be theft, burglary, criminal damage or another offence. The explanation of the second and third elements will be more complex depending upon the nature of the foundational offence and whether the elements of it are in issue.

^[19] Despite the way in which this third element is couched, it may be unnecessary for the foundational offence to be complete in order to sustain a conviction for the charged offence. Instead, it may be enough that the principal was “in the course of carrying out the [foundational] offence” when he committed the charged offence. Equally, it might be argued that, unless the charged offence is committed “in the course of carrying out the [foundational] offence”, there can be no liability for the charged offence under s 323(1)(b) (or s 323(1)(d), for that matter). (A related issue arose in respect of felony-murder at common law in R v Grapsas [1973] VicRp 87; [1973] VR 857.) It became unnecessary to resolve these issues in this case because, in the end, s 323(1)(b) was not pursued as a basis for liability for either murder or manslaughter. See below.

^[20] These first three elements might be more happily collapsed into the one element.

^[22] Usually, I would set out the elements of manslaughter (and, if necessary, murder — see footnote 23) here, depending upon the issues at trial.

^[23] In a case where it was not alleged that the principal murdered the deceased but only committed manslaughter, this requirement would be neither necessary nor appropriate. The requirement is included here to ensure that the jury understands that the secondary party can be acquitted of murder and convicted of manslaughter even if the principal, in the secondary party’s case, is guilty of murder.

^[24] Again, the foundational offence need not be an assault. It might be another type of offence. See footnote 18, above.

^[33] This chair-throwing incident ultimately did not form part of the affray as left to the jury against Milan Jovic, but the next pieces of behaviour involving him and Mr Novakovic did form the bases for the affray charges against them.

^[34] The picking up of the bottle did not form part of the affray as left to the jury against Sasa Jovic, but the next piece of behaviour involving him did.

^[36] As I indicated earlier, the alternative intention was the subject of a ruling, which I shall come to later.

^[37] See, for example, Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313 at 325, 327 & 332-334 (per Mason CJ, Toohey, Gaudron and McHugh JJ).

^[39] As I indicated earlier (in footnote 15), the Crown did not put either case of complicity additionally or alternatively as one of “direct[ing]” Mr Novakovic to commit murder (see ss 323(1)(a) and 324 of the Crimes Act 1958 (Vic), which are extracted below). Nor could the evidence have sustained any such case.

^[40] For reasons I shall explain below, after the no-case submissions were determined, I invited the Crown to reconsider reliance on this alternative head of murder (and manslaughter) against Milan Jovic under s 323(1)(b), and persist only with the case pursuant to s 323(1)(a), which invitation was taken up.

^[42] See the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 (Vic), ss 6, 7 & 8.

^[46] See, for example, Miller v The Queen [2016] HCA 30; (2016) 259 CLR 380 at 411-412[84] (per Gageler J). See also Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473 at 479, 481 & 482 (per Gibbs CJ), 494 (per Mason J, citing Johnson v Youden [1950] 1 KB 544 at 546-547) and 505 & 506-507 (per Wilson, Deane and Dawson JJ).

^[49] See, for example, Miller v The Queen [2016] HCA 30; (2016) 259 CLR 380 at 387[2], 388[3] & 389[9] (per French CJ, Kiefel, Bell, Nettle and Gordon JJ) & 411-412[84] (per Gageler J); and Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 at 342[72]-343[74] (per McHugh J).

^[52] See, for example, Miller v The Queen [2016] HCA 30; (2016) 259 CLR 380 at 378[4] (per French CJ, Kiefel, Bell, Nettle and Gordon JJ).

^[53] That said, on one view, Johns v The Queen [1980] HCA 3; (1980) 143 CLR 108 might be an example of an early version of extended common purpose reasoning as applied to an accessory before the fact, based on counselling or procuring (as to which, see also McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108 at 114). It is also notable that, in Miller v The Queen [2016] HCA 30; (2016) 259 CLR 380 at 412[85], Gageler J observed that there “is a real question as to whether accessorial liability and joint criminal enterprise liability are distinct in concept, and in particular as to whether joint criminal enterprise liability is anything more than a subcategory of accessorial liability”. If that is so, it might be said that extended common purpose is no more than a further subcategory of accessorial liability.

^[55] See the Honourable Justice Mark Weinberg et al, “Simplification of Jury Directions Project: A report to the Jury Directions Advisory Group” (2012) at [2.288].

^[56] See the Honourable Justice Mark Weinberg et al, “Simplification of Jury Directions Project: A report to the Jury Directions Advisory Group” (2012) at [2.292] & [2.301]-[2.302].

^[57] At common law, see, for example, Likiardopoulos v The Queen (2012) 247 CLR 265 at 275[24], 276[27]-277[30] & 279[36] (per Gummow, Hayne, Crennan, Kiefel and Bell JJ; French CJ agreeing at 268-269[1]) and at 282[44]-283[45] (per Heydon J).

^[58] Given the terms “assists, encourages or directs” in paragraphs (a) and (b) and the terms “agreement, arrangement or understanding” in paragraphs (c) and (d), it might be said that there are many more categories of liability, to the extent that there might be differences in the behaviour caught by those different terms.

^[60] Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569 at 576-577 (per Gibbs J). See also Aubrey v The Queen (2017) 260 CLR 305 at 325-326[39] (per Kiefel CJ, Keane, Nettle and Edelman JJ).

^[61] Perry Herzfeld, Thomas Prince and Dr Stephen Tully, Interpretation and Use of Legal Sources, Thomson Reuters, 2013, at p 332[25.1.3080] (citations omitted).

^[62] Some refer instead to crimes with a “consequence element” (see, for example, the Law Commission, “Participation in Crime” (Report) [2007] EWLC 305 at [B.3], [B.82], [B.95]-[B.99], [B.101]-[B.102], [B.109] & [B.118]).

^[63] As I noted in an earlier footnote, for the purposes of this analysis, I put to one side cases of reckless murder (see, for example, The Queen v Crabbe [1985] HCA 22; (1985) 156 CLR 464) and constructive or felony-murder (which is placed on a statutory footing in this State — see s 3A of the Crimes Act 1958 (Vic)).

^[64] The legislature saw fit to include s 323(3)(b), which provides for the equivalent of the Latin maxim ignorantia juris non excusat. It seems that this was done for the avoidance of doubt (see the Honourable Justice Mark Weinberg et al, “Simplification of Jury Directions Project: A report to the Jury Directions Advisory Group” (2012) at [2.285]).

^[65] See the Honourable Justice Mark Weinberg et al, “Simplification of Jury Directions Project: A report to the Jury Directions Advisory Group” (2012), esp. at [2.72], [2.253]-[2.258], [2.269] (including proposed s 324(2)) & [2.281]-[2.282]. Query, however, whether “direction” (which was not recommended in the foregoing report), like “procuring” at common law but unlike “assistance” and “encouragement”, might connote a causal requirement.

^[68] Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473 at 480 (per Gibbs CJ) and at 493 (per Mason J). Gibbs CJ (at 479-480) also referred to United States v Peoni (1938) 100 F (2d) 401 at 402, where, after referring to various statutory and common law instrument definitions of “accessories”, Judge Learned Hand said, “It will be observed that all these definitions have nothing whatever to do with the probability that the forbidden result would follow upon the accessory’s conduct; and they all demand that he in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed. All the words used — even the most colourless ‘abet’ — carry an implication of purposive attitude towards it.” (My emphasis.)

^[70] Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473 at 500 & 503-509, esp. 506-507 (per Wilson, Deane and Dawson JJ); see also at 479-488 (per Gibbs CJ) and 494-497 (per Mason J).

^[71] Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473 at 477-479 (per Gibbs CJ), 490-492 (per Mason J) and 497-503 (per Wilson, Deane and Dawson JJ).

^[72] Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473 at 487-488 (per Gibbs CJ), 497 (per Mason J) and 508-509 (per Wilson, Deane and Dawson JJ).

^[77] Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473 at 506-507 (my emphasis); see also at 500 & 503-506 & 507-509 (where their Honours rejected the proposition that wilful blindness may be treated as a substitute for actual knowledge).

^[81] The trial judge’s directions are set out in Likiardopoulos v The Queen [2010] VSCA 344; (2010) 30 VR 654 at 671-673[76] (per Buchanan, Ashley and Tate JJA).

^[82] Likiardopoulos v The Queen [2010] VSCA 344; (2010) 30 VR 654 at 673[79]-678[102], esp. at 674[81]-[82] (per Buchanan, Ashley and Tate JJA).

^[86] Likiardopoulos v The Queen (2012) 247 CLR 265 at 273[20] (emphasis added). See also The Queen v Nguyen [2010] HCA 38; (2010) 242 CLR 491 at 504[48], where the Court (Hayne, Heydon, Crennan, Kiefel and Bell JJ) recorded, without criticism, a Crown submission that murder by accessorial liability had been put against Mr Nguyen on the basis that he “assisted or encouraged an assault committed with [murderous] intention”.

^[87] At this point, their Honours referred to Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473 at 487-488 (per Gibbs CJ) and at 500 (per Wilson, Deane and Dawson JJ).

^[89] The “defence” of which his Honour spoke was contained in s 52A(3) of the Crimes Act 1900 (NSW), which provided: “It shall be a defence to any charge under this section that the death or the grievous bodily harm occasioned, as the case may be, was not in any way attributable to the fact that the person charged was under the influence of intoxicating liquor or of a drug or, as the case may be, to the speed at which or the manner in which the vehicle was driven”.

^[90] Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473 at 502. For this proposition, their Honours cited Hale’s Pleas of the Crown (1800), vol. 1, p 436.

^[104] R v Stokes & Difford (1990) 51 A Crim R 25 at 37-39 (citations omitted; italics in original; underlining added).

^[105] R v Mohan [1966] UKPC 3; [1967] 2 AC 187 (this citation is not in the original passage, but is provided earlier in Hunt J’s judgment).

^[109] R v Campbell [1997] 2 VR 585 at 586 (per Phillips CJ) and 592-593 (per Hayne JA and Crockett AJA).

^[112] R v Le Broc [2000] VSCA 125; (2000) 2 VR 43 at 64[61] & 64-65[63]. (The Court also queried, at 60[55], without deciding, whether it is possible to aid and abet an offence of recklessness.)

^[115] Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473 at 494; see also at 481 & 482 (per Gibbs CJ) and 500 & 505 (per Wilson, Deane and Dawson JJ).

^[116] The Law Commission, “A New Homicide Act for England and Wales?” (Consultation Paper) [2005] EWLC 177(5) at [5.17]. See also the Law Commission, “Participation in Crime” (Report) [2007] EWLC 305 at [B.68].

^[117] While it seems clear that the Law Commission is speaking of accessorial liability, the term used in this publication, and the next by the Commission (see below), is “secondary party”.

^[120] This too seemed to be the logical extension of the way in which the Law Commission analysed Johnson v Youden [1950] 1 KB 544 in its “Participation in Crime” (Report) [2007] EWLC 305 at [B.101].

^[123] See, for example, R v Jogee [2016] UKSC 8; [2017] AC 387 at 396[2]-[3], 397[9] & 414[74] (per Lord Hughes and Lord Toulson).

^[129] R v Jogee [2016] UKSC 8; [2017] AC 387 at 397[9]-398[10] (citations omitted; emphasis added); see also 417[88] & 417[90].

^[130] R v Powell [1999] 1 AC 1 (Lord Goff of Chieveley, Lord Jauncey of Tullichettle, Lord Mustill, Lord Steyn and Lord Hutton).

^[134] R v Powell [1999] 1 AC 1 at 16H-17A & 27G (per Lord Hutton). (Curiously, there appears to have been no criticism that, at least in the directions extracted in Lord Hutton’s speech, the trial judge failed to direct that the accessory must realise that the principal might attack the deceased with murderous intent, despite the fact that such a requirement was implicit in the certified questions considered by the House of Lords.)

^[138] R v Powell [1999] 1 AC 1 at 28G (emphasis added by Lord Hutton); citing Chan Wing-Siu v The Queen [1984] UKPC 27; [1985] AC 168 at 175F. His Lordship also referred to R v Anderson & Morris [1966] 2 QB 110 at 120B (per Lord Parker CJ); and R v Gamble [1989] NI 268 at 283&ff (per Carswell J) (see R v Powell [1999] 1 AC 1 at 28E-30B).

^[142] R v Bainbridge [1960] 1 QB 129 at 134. Lord Parker CJ also led a five-member bench of the Court of Criminal Appeal in R v Anderson & Morris [1966] 2 QB 110.

^[147] R v Jogee [2016] UKSC 8; [2017] AC 387 at 417[90]-418[91] & 418[95]-419[99] (citations omitted; underlining added). (I have omitted the passages that deal expressly or more directly with “joint venture” or “common purpose” liability. See R v Jogee [2016] UKSC 8; [2017] AC 387 at 418[92]-[94].)

^[150] As to the perceived scope of the rule as at 2007, see the Law Commission, “Participation in Crime” (Report) [2007] EWLC 305 at [B.138]- [B.152].

^[159] Again, for the sake of brevity only, I put aside the requirement that the act causing death, and the act of assistance or encouragement, must be committed consciously, voluntarily and deliberately and without lawful justification or excuse.

^[169] The order of the last four words must be a slip. Their Honours must have meant: “Preston might shoot Knowles”.

^[184] The Queen v Taufahema [2007] HCA 11; (2007) 228 CLR 232 at 237[6]-238[7]. While Gleeson CJ and Callinan J were in dissent on the outcome of the appeal, there seems to have been no dispute about their Honours’ statement of principle regarding extended common purpose liability.

^[188] The Court described the doctrine as “common purpose”, but it strikes me that it was more properly described as an example of extended common purpose. This may have been just a slip, because elsewhere in their reasons, when analysing Mr Nguyen’s argument in the Court of Appeal that the verdict was unsafe and also when analysing his argument in the High Court that manslaughter was left on too confined a basis, the Court spoke of extended common purpose (The Queen v Nguyen [2010] HCA 38; (2010) 242 CLR 491 at 494[8], 503[43] & 503[45]).

^[190] The Queen v Nguyen [2010] HCA 38; (2010) 242 CLR 491 at 494[8], 495[11] & 506[56]-[57]. Mr Nguyen subsequently pleaded guilty to manslaughter and recklessly causing serious injury in the Supreme Court of Victoria, which pleas were accepted, and he was sentenced accordingly (R v Nguyen [2011] VSC 73).

^[194] Miller v The Queen [2016] HCA 30; (2016) 259 CLR 380 at 388[2] (per French CJ, Kiefel, Bell, Nettle and Gordon JJ) and 424[131] (per Keane J).

^[205] Professor Sir John Smith, “Criminal Liability of Accessories: Law and Law Reform” (1997) 113 LQR 464 (my emphasis).

^[209] The matter in the Privy Council (concerning Mr Ruddock) came from Jamaica.

^[210] R v Jogee [2016] UKSC 8; [2017] AC 387 at, for example, 396-397[3], 415[79], 416[82]-[85] & 417[87] (per Lord Hughes and Lord Toulson; Lord Neuberger, Lady Hale and Lord Thomas agreeing).

^[219] That said, when regard is had to the trial judge’s directions, and putting aside the fundamentally different act rule, it appears that Mr English’s appeal proceeded upon the assumption that foresight of the possibility that the principal might cause really serious injury was a sufficient level of foresight for the secondary party (R v Powell [1999] 1 AC 1 at 16H-17A & 27G). (In an earlier footnote, I made the point that it seems curious that there was no additional criticism of the directions extracted in Lord Hutton’s speech, to the extent that those directions failed to convey that the accessory must realise that principal might attack the deceased with murderous intent.)

^[223] Again, for ease of expression, I have excluded reference to the requirement that the act causing death must be committed consciously, voluntarily and deliberately and without lawful excuse.

^[225] See, for example, the articles collected by Kirby J in his judgment in Clayton v The Queen [2006] HCA 58; (2006) 81 ALJR 439 at 458[98] fn 119; and the additional articles referred to by French CJ, Kiefel, Bell, Nettle and Gordon JJ in Miller v The Queen [2016] HCA 30; (2016) 259 CLR 380 at 387[2] fn 11.

^[226] See the Honourable Justice Mark Weinberg et al, “Simplification of Jury Directions Project: A report to the Jury Directions Advisory Group” (2012), esp. at [2.22]-[2.24], [2189]-[2.202] & [2.235]-[2.239].

^[227] The Honourable Justice Mark Weinberg et al, “Simplification of Jury Directions Project: A report to the Jury Directions Advisory Group” (2012), esp. at [2.238]-[2.239] (footnotes omitted; my emphasis).

^[229] This paragraph was extracted earlier in these reasons. Of course, all of these passages in the Explanatory Memorandum should be read with the others extracted earlier.

^[237] See, for example, Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 at 327[21]-[22], 330[28] & 331[33]-332[35] (per Gaudron and Gummow JJ).

^[239] See, for example, Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 at 345[77] (paragraph [8] in the extract from the advice of the Privy Council in Hui-Chi Ming v The Queen [1992] 1 AC 34 at 45).

^[246] Markby v The Queen [1978] HCA 29; (1978) 140 CLR 108 at 112 (my emphasis; footnotes and references to authority omitted; but passage amended, as indicated in square brackets, in accordance with the corrigendum).

^[247] McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108 at 113. But see the Honourable Justice Mark Weinberg et al, “Simplification of Jury Directions Project: A report to the Jury Directions Advisory Group” (2012) at [2.83]-[2.89].

^[249] I note that, in McEwan & Ors v The Queen [2013] VSCA 329; (2013) 41 VR 330 at 336[34], the Court of Appeal (Redlich and Coghlan JJA and Dixon AJA), when considering the directions given at trial on joint criminal enterprise and murder, doubted, without deciding, “whether at the time of the agreement the parties to the agreement must necessarily share the same intent or mens rea with respect to the acts that they agree or understand will be performed”; and suggested that the judge’s directions, “though expressed in conventional terms, [were] too narrow, in that [they] required the existence of a common intent by the participants” (see also at 342[57]-343[58] & 344[61]).

^[257] Likiardopoulos v The Queen (2012) 257 CLR 265 at 273[19] (footnotes omitted; emphasis added).

^[260] Of course, while, in one sense, the legislature’s decision to fix on awareness of probability instead of possibility in s 323(1)(b) and (d) narrows the scope of liability as compared with the scope of liability under extended common purpose reasoning at common law, in another sense, the scope of liability has been broadened by the enactment of s 323(1)(b) because, Johns v The Queen [1980] HCA 3; (1980) 143 CLR 108 aside, it was, arguably, not clear whether extended common purpose reasoning attached to accessorial liability for the foundational offence.

^[261] See, in particular, paragraphs [9], [10], [248], [251], [278] and [289], above.

^[265] While this part of the test of dangerousness is usually couched as being from the perspective a person in the principal’s position (see Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313 at 325, where the plurality refer to the test in R v Holzer [1968] VicRp 61; [1968] VR 481 at 482) (and indeed this would be so when considering whether the principal had committed the offence), it seems to me that, when considering the case against the accessory, this part of the test must be couched as being from the perspective of person in the accessory’s position (see, for example, R v Hartwick & Ors [2005] VSCA 264; (2005) 14 VR 125 at 145[41] (per Charles, Chernov and Nettle JJA)).

^[266] It makes no difference whether, in the accessory’s case, the principal is found to have committed murder or manslaughter (see, for example, The Queen v Nguyen [2010] HCA 38; (2010) 242 CLR 491 at 503[43]-505[50]).

^[270] Again, it makes no difference whether, in the accessory’s case, the principal is found to have committed murder or manslaughter (see, for example, The Queen v Nguyen [2010] HCA 38; (2010) 242 CLR 491 at 503[43]-505[50]).

^[271] See, for example, R v Hartwick & Ors [2005] VSCA 264; (2005) 14 VR 125 at 145[39]-147[45]; The Queen v Nguyen [2010] HCA 38; (2010) 242 CLR 491 at 503[45]; and Smith & Ors v The Queen

[2012] VSCA 5

, especially at [95]-[96], [210]-[212], [214], [235] & [239] (per Weinberg JA; with whom Ashley JA and Tate JA agreed).

^[272] Gillard v The Queen [2003] HCA 64; (2003) 219 CLR 1 at 11-12[19] & 13-14[25] (per Gleeson CJ & Callinan J); and 38[118] & 40[128] (per Hayne J).

^[274] Gillard v The Queen [2003] HCA 64; (2003) 219 CLR 1 at 11-12[19] (my emphasis, in italics and in underlining, except the reference to McAuliffe).

^[276] As indicated in an earlier footnote, the order of these last four words must be a slip. Hence my correction.

^[286] The agreed foundational offence need not be an assault. It might be another type of offence. See footnote 18, above.

^[296] Since, in the circumstances of this case, there was no dispute that a stabbing would also be an assault, there was no need separately to require a finding that the relevant act would be (or, in the case of the third element, was) an unlawful act for the purposes of manslaughter by an unlawful and dangerous act.

^[299] Whether an intent to commit such offences would suffice for the purposes of s 76(1)(b)(i) only if, in the particular circumstances, it were proved that the intention was to commit the offence in question in such a way as to involve an assault need not be decided. It is difficult to imagine an example of those offences that did not involve an assault. Perhaps poisoning with intent to kill might be an example of attempted murder (or even murder) that, strictly speaking, does not involve an assault.

^[302] Mr Novakovic pleaded guilty to aggravated burglary in the presence of the jury panel.

^[303] While Mr Novakovic pleaded not guilty to murder but guilty to manslaughter in the presence of the jury panel, I determined that the alternative verdict of guilty of manslaughter still would need to be left to the jury in the event that they returned a verdict of not guilty of murder. As it happened, the issue fell away because Mr Novakovic was found guilty of murder.