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Module 6 · Complicity

Complicity is the centrepiece of 2024 Q2 and is live in 2025 Q1. The statutory scheme with Rohan is the examiner's current interest, and the essay menus carry it too. The skill is limb selection, then proving the principal offence and the accused's knowledge, in that order.

Cases at a glance

The involvement scheme

Do not open with the flat line that complicity is derivative. This is because after Rohan that is only half the scheme. For the assist, encourage or direct limbs liability is derivative, and the prosecution must prove that another person committed the crime. For the agreement, arrangement or understanding limbs liability is primary, and the prosecution does not have to prove that another person separately committed the crime. This is because the acts of each party done within the scope of the agreement are attributed to the other parties, so each party commits the offence as a principal (Rohan at [36]; Gebregiorgis). Either way an offence must actually be committed before anyone is involved in it (s 324(1)), so the split changes who must be shown to have committed it, not whether it happened. Limbs (a) and (c) attach liability for the very offence assisted, encouraged, directed or agreed to. Limbs (b) and (d) extend liability to a further offence committed in the course of the agreed one and carry the harder fault threshold.

Choosing the limb

Two axes fix the limb before any argument starts. The first is the mode of involvement, assistance or encouragement on one side and agreement on the other. The second is the offence charged, the very offence the accused was involved in or a further offence committed in the course of it. Cross the axes and the subsection reads off.

Limb selection is the first skill the topic tests. Ask what the accused's involvement actually was and when it happened. A settled plan formed days in advance is an agreement under limb (c). Words of support or a signal given as the offence unfolds are encouragement under limb (a). A command that orders the attack is a direction under limb (a) and words alone plainly suffice. The wrong limb often still reaches liability but it misdescribes the accused's role and misses the point being marked. Where (a) and (c) are both open argue the better fit. One sound basis is enough.

Physical absence from the scene is no answer under any limb. The lookout who signals from the running car assists within limb (a) and the planner who stays home is liable under limb (c) because her involvement was the agreement itself. Positioning is involvement too: where one accused stationed himself outside a hotel door as a lure so the other could strike the victim, the jury were entitled to find him a party to an agreement under s 323(1)(c) and liable under s 324 (Sarjeant [2020] VSCA 45, [60]).

Read the principal-offence requirement with the Rohan split. On the assist, encourage or direct limbs it is derivative in the full sense, since the Crown must prove that another person committed the offence. On the agreement limbs it is enough that one or more parties to the agreement performed, within its scope, all the acts necessary to commit the offence in the circumstances necessary for its commission (Rohan at [34]; the derivative and primary split is at [36]). The requirement also caps the charge. Liability extends only to what was actually committed, so if the Crown can fix the principal with manslaughter but not murder then complicity in murder is unavailable.

Three neighbouring provisions patrol that requirement. Guilt does not depend on the alleged principal being prosecuted or convicted, so a principal who is dead, has fled the jurisdiction or is excused by mental impairment leaves the party exposed (s 324A). Where the evidence proves the offence and the accused's part in it but cannot show who struck the blow, the trier of fact may convict if satisfied the accused was either the offender or a person involved, without deciding which (s 324B). And a person whom the offence exists, as a matter of policy, to protect or benefit cannot be made complicit in it, so the child victim of an adult's sexual offending is never a party to it (s 324(3)). One common law figure stands outside the scheme altogether. A person who works an offence through an unwitting instrument is a principal in the first degree by innocent agency, which is primary liability and not complicity (Matusevich).

Fault

Knowledge of the actual offence

The knowledge must attach to the offence the principal actually committed. Rohan requires knowledge of the perpetrator's intention to perform the essential elements of the offence charged and Giorgianni requires knowledge of its essential facts. A general agreement to help someone steal something does not carry knowledge of the particular theft the principal chose to commit instead. If the plan was to shoplift cosmetics and the principal instead pocketed a shopper's wallet, the knowledge attached to the cosmetics and limb (c) fails for the wallet theft.

Knowledge of the essential facts is not knowledge of the law. For the agreement limb the party need not know that the agreed conduct was an offence. It is enough that the parties agreed to do something which was, in the circumstances, a criminal offence, and that the accused held the state of mind the offence itself requires at the time of agreeing (Rohan). That is how the parties in Rohan were liable for sexual penetration of a child under 12 without proof that any of them knew the child's age. The agreement was to penetrate that particular child, and her age was what made the agreed conduct criminal, not something the parties had to know. The equivalence is limited to the agreement limbs. On limb (a) the Crown must prove the secondary party knew or believed the victim was a child, a higher state of knowledge than the principal needs (Rohan v The King [2022] VSCA 215, [82]-[83]; charge book 5.2 [56], [58]). Section 323(3)(b) says only that the accused need not know the conduct was an offence.

Timing of knowledge

White v Ridley fixes the time: the state of mind is assessed at the moment of the assistance rather than at the time of the offence (charge book 5.2 [42]), and for a mens rea offence what must be known includes the principal's state of mind (Stokes (NSW)). Lending a van in the belief it is for a house move is innocent assistance and it stays innocent when the borrower later boasts about the theft it carried. Later knowledge plus inaction does not convert past help into complicity because a mere failure to act is ordinarily not encouragement (Russell).

The further crime threshold

Two calibrations decide most further crime questions. The first is the meaning of probable. It is an ordinary English word for the jury; a judge may suggest likely as a synonym and may contrast it with what is merely possible, but must not equate it with the balance of probabilities (charge book 5.2 [95]; Crabbe). It asks what the accused was subjectively aware of rather than what a reasonable person would have foreseen. The sources searched carry no Victorian appellate decision construing probable in s 323(1)(b) or (d); the murder cases on probable are used by analogy only. The second is weapon knowledge, the graduated fact that moves the threshold. A plan confined to fists with no knowledge of any weapon does not support awareness of a probable killing, so the accused answers for the agreed assault and not the murder. An accused who personally arms the principal supports that awareness, and a stated hope that the weapon would only frighten does not displace the foresight. The middle cases carry the marks and the honest answer argues both sides before committing to the better view.

Do not gloss either standard. On the further-crime limbs the awareness must be of the probable murder rather than of probable violence at large. A party can foresee probable serious violence and still fall short, and that gap decides middle cases. On limb (a) the knowledge or belief must extend to an intent to kill or to cause really serious injury, the half most often dropped.

Presence and withdrawal

• A mere failure to act is ordinarily not encouragement (Russell), but a failure to act while under a legal or ethical duty can be evidence of encouragement or assent.

The contest on presence is over conversion. Where the accused arrived separately, said nothing beforehand and knew of no plan, the honest answer raises the Lowery possibility and rejects it for want of any operative encouragement or intention to assist. Conduct that looks encouraging founds nothing unless the accused knew of the principal's intention (Rohan at [39], [68]).

• Withdrawal is governed by s 324(2). Leaving the scene shortly before completion, or a private change of heart, is not withdrawal (White v Ridley; Lowery & King (No 2)).

Withdrawal is argued on three requirements, and the third is where most withdrawal arguments are decided. Timeliness, communication to the others, then all action the accused can reasonably take to undo the earlier encouragement or assistance. Communication is ordinary rather than absolute: in exceptional circumstances a withdrawal may be implicit, and an accused who reasonably believes the others will not go on may need do no more than countermand the original agreement (charge book 5.2 [98], [103]). Announcing departure and leaving while taking no step to stop the offence or warn the victim fails on the third requirement. This is because an accused does not escape liability merely by leaving the scene shortly before the offence is completed (5.2 [100]; McEwan, Robb and Dambitis (Vic), where the third accused departed while another continued the assault, having neither communicated his decision nor undone his earlier encouragement). Run each requirement in turn and say which one fails and why.

How the examiners mark it

Complicity answers are marked on order, triage and calibration. Order first. The principal offence comes before the secondary party, proved element by element or taken as given where the question directs. Headings name the step and state the answer and never name a case. Triage second. Say which requirements are live on the facts and spend the words there. One basis argued well earns the marks. Calibration third. Conclusions are graded in likelihood language, that the Crown could prove the awareness beyond reasonable doubt or that a jury might be reluctant, tied to the decisive fact. What loses marks is predictable. The essay comparison of parties doctrine inside a problem. Analysing the principal offence's elements when the question takes them as given. Resolving a contested awareness question one way. Forgetting the one line that a party who escapes the murder still answers for the agreed offence.

Critical pitfalls and counter-arguments

Take it to the practice bank

This module is drilled in the Criminal Law practice bank. Every problem there carries a realistic Pass answer, an H1 model answer, and an examiner's comment explaining the decisive fact and where the marks are lost.

Practice prompts

1. Prove the principal offence in full before you touch the secondary party, and say what follows if it fails.
2. Select the limb on a set of facts and justify the selection against the alternatives.
3. Write the knowledge paragraph so that it fixes knowledge at the time of the encouragement or agreement.
4. Take a co offender who kills during an agreed theft and argue the further crime threshold both ways.
5. Draft a withdrawal argument and test it for timeliness, communication and reasonable steps.
6. Take a middle case on the further crime threshold and finish with the better view in likelihood language.
7. Explain in two sentences why complicity in murder demands more than foresight of probable violence.