45. Incitement — Vic Criminal Law¶
Scope and currency
Cheat sheet · Crimes Act 1958 (Vic) Pt I Div 11, ss 321G–321L (+ s 2A) · common law incitement abolished (s 321L) · current to July 2026
Starting point — s 321G: inciting another to pursue a course of conduct that, if acted on, would involve the commission of an offence is an indictable offence — regardless of whether the incited offence is itself indictable. A true inchoate offence (like attempt and conspiracy): it is a substantive offence complete upon the inciting conduct, whether or not the incitement succeeds (R v Massie [1999] 1 VR 542). Common law incitement is abolished (s 321L). Two elements (s 321G):
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the accused incited a person to a course of conduct that would involve an offence; and
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the accused intended that the principal offence be committed.
The basics — what is incitement?¶
Concept: Incitement is the crime of urging, encouraging or persuading another person to commit a criminal offence. The person doing the urging is the inciter; the person urged is the person incited (the incitee); the offence they are urged to commit is the principal (or incited) offence. It is enough that the inciter tries to get the other person to commit the crime — the crime itself need never happen.
Where it sits & why it is a crime¶
• Inchoate liability: incitement is one of the three inchoate ('incomplete') offences — attempt, conspiracy and incitement — which criminalise conduct directed at a crime before it is completed.
• The dividing line: attempt = the accused moves towards committing the crime themselves; conspiracy = the accused agrees with others to commit it; incitement = the accused tries to get someone else to commit it.
• Why it is punished: the law intervenes early to prevent crime — the danger lies in the encouragement itself, so the offence is complete the moment the urging is communicated with intent, whether or not anyone acts on it.
• A substantive offence: incitement is a stand-alone offence with its own charge and penalty (s 321G) — not merely a device for making the inciter liable for another person's crime.
Incitement vs complicity: if the incited crime is never committed, only an inchoate offence (incitement, or attempt / conspiracy) can apply — complicity needs a completed principal offence. If the crime is committed and the inciter also assisted or encouraged it, they may instead be liable as a party to that offence under the complicity regime (ss 323–324).
Typical example: offering or agreeing to pay a 'hit-man' to kill someone is the classic case — the offer itself is the incitement, complete when made with the intention that the killing occur, even if the person approached is an undercover officer who never intends to carry it out (R v Massie; R v Zhong).
R v Zhong: the applicant incited an undercover police officer ("Mark") to murder his former de facto wife, Rong Hua Maio. The applicant provided the operative with a $1,000 casino chip, $200 in cash, and detailed information about the victim's routine, agreeing to a total price of $10,000. The applicant argued on appeal that his request was conditional upon him raising a further $5,000, and therefore he had not formed the settled intention required by s 321G(2) of the Crimes Act.
The Court of Appeal (Buchanan JA, with Winneke P and Phillips JA agreeing) unequivocally rejected the importation of civil contract law principles into the criminal law of incitement. The Court held that a command or request made conditional on some further event can still amount to incitement, even if the accused has no control over that other event. The existence of qualifications or conditions is a factual matter for the jury to weigh when deciding whether the accused possessed a settled intention that the offence be committed, as distinct from merely exploring a hypothesis. The trial judge correctly left the applicant's hesitation and the conditional nature of the payment to the jury to determine if he truly intended for the murder to occur.
R v Massie: the applicant was convicted of two counts of incitement to murder (his brother and sister-in-law) and one count of incitement to cause serious injury intentionally. Massie had made a direct request to an undercover operative ("Joe Black") and expressed elation when falsely shown "proof" of the killings. The only live issue at trial was whether Massie's incitement was genuine or pretended.
The Court of Appeal heavily criticised the trial judge's directions for unnecessarily complicating the charge. The trial judge had erroneously used the complex framework of s 321G(2)(b) of the Crimes Act and had instructed the jury on the substantive elements of murder, including voluntariness, causation, and intent to cause grievous bodily harm. Brooking JA noted that s 321G(2)(b) was intended to deal with cases where criminal liability depends on the existence of certain circumstances (such as strict liability offences), not straightforward cases of incitement to murder.
The Court established that in cases of simple and direct incitement, trial judges should eschew unnecessary statutory complexities. The jury need only be told that they must be satisfied the accused, with the intention of having the principal kill the victim, incited the principal to kill the victim. Despite the "unhappy" directions, the Court of Appeal applied the proviso to s 568(1) of the Crimes Act (now superseded by the Criminal Procedure Act 2009), finding no substantial miscarriage of justice because the jury, in convicting, clearly resolved the sole issue of "pretend versus genuine" intent against the accused.
Run it in this order¶
Sequence:
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statutory home — s 321G (common law abolished, s 321L);
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Element 1 — the inciting conduct: incite (command / request / propose / advise / encourage / authorise, s 2A) a course of conduct that would involve an offence (s 321G(1));
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Element 2 — intention that the principal offence be committed (s 321G(2));
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address impossibility if raised (s 321G(3)); and
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penalty — usually equal to the substantive offence (s 321I), not one level down.
Statutory scheme — Division 11 (ss 321G–321L)¶
| Provision | What it does |
|---|---|
| s 321G | Creates the offence and its two elements. s 321G(1) = the inciting conduct (incite another to a course of conduct involving an offence by the incitee, the inciter, or both). s 321G(2) = fault (intend the offence be committed; intend/believe facts). s 321G(3) = factual impossibility is no bar. |
| s 321GA | Incitement of a child who may not be criminally responsible — guilty even if the incitee is a child presumed incapable under Youth Justice Act 2024 ss 10–11. Inserted by the YJA 2024; commenced 30 Sept 2025. |
| s 321H | Extraterritorial reach — extends the commission of an offence to an offence outside Victoria only if (a) its elements would constitute a Victorian offence if occurring here, and (b) the inciter is in Victoria at the time of inciting. |
| s 321I | Penalties — generally the same maximum as the substantive offence; default level 4 (15 yrs) where no maximum is prescribed; murder/treason → life or as the court fixes (detail below). |
| s 321J | Applies the s 321G(2)–(3) fault and impossibility rules to incitement offences created by other enactments. |
| s 321K | Limitations on prosecution — consent-to-prosecute requirements apply (s 321K(1)); a time-barred substantive offence bars the incitement (s 321K(2)); no double conviction for the same inciting (s 321K(3)). |
| s 321L | Abolishes the common law offence of incitement. |
| s 2A | Defines incite: includes command, request, propose, advise, encourage or authorise. |
Incitement at a glance¶
| Issue | Rule | Key authority |
|---|---|---|
| Home | Inciting an offence is itself indictable — regardless of the incited offence's classification | s 321G |
| Element 1 — conduct | Incite (command / request / propose / advise / encourage / authorise) a course of conduct that would, if acted on, involve an offence | s 321G(1); s 2A; Massie |
| Complete when? | On the inciting conduct — the incitee need not agree, intend, or act | Massie; Zhong; Dimozantos |
| Element 2 — intention | Intend that the principal offence be committed (including any required result or state of mind) | s 321G(2); Massie |
| Incitement to murder | Intent to kill only — an intent to cause serious injury / harm is insufficient | Massie |
| Impossibility | Factual impossibility no bar; an imaginary crime is not incitement | s 321G(3); Sirat |
| Penalty | Usually EQUAL to the substantive offence — not one level down | s 321I |
The two elements (s 321G)¶
ELEMENT 1 The inciting conduct (actus reus) — s 321G(1)
Did the accused incite a person to a course of conduct that, if acted on, would involve an offence by the incitee, the inciter, or both? 'Incite' includes command, request, propose, advise, encourage or authorise (s 2A) — an ordinary English word (R v Massie [1999] 1 VR 542). The incitement must come to the knowledge of the person incited, but need have no effect: the incitee need not agree, form any intention, or take any step (R v Dimozantos (1991) 56 A Crim R 345; Massie; R v Zhong [2003] VSCA 56). The accused need not have originated the idea — it may come from a third person, or even from the person to be incited (Massie). → Conditional requests — a request conditional on some further event can still be incitement (Zhong). But a request hedged with so many conditions, or dependent on such unlikely events, that the crime was not genuinely intended may fall short — a question of fact for the jury (Zhong). → Complete on urging — incitement is a substantive offence, complete upon the inciting conduct, whether or not it succeeds — this distinguishes it from complicity (Massie; Dimozantos v R (1993) 178 CLR 122).
Definition and the communication rule¶
• "Incite" is an ordinary English word: "to rouse, to stimulate, to urge, to spur on, to stir up, to animate" — Stout CJ, Young v Cassells (1914) 33 NZLR 852.
• Adopted in Victoria: Brooking JA in R v Massie 1 VR 542 confirmed "incite" covers words or conduct that "command, request, propose, advise, encourage or authorize" — reflected in the statutory terms in s 2A.
• Communication completes the actus reus: the offence is complete when the request or encouragement is communicated and comes to the knowledge of the target.
• No actual effect required: it is legally irrelevant whether the target was actually influenced or encouraged in fact (s 323(2) applied mutatis mutandis via s 321J).
Actus reus — the authorities¶
| Case | Facts | Outcome | Principle |
|---|---|---|---|
| R v Massie 1 VR 542 and Dimozantos v R (1993) 178 CLR 122 (the undercover police scenario) | Massie made arrangements with a man named "Joe Black" to have family members killed and injured. "Joe Black" was an undercover police officer who never had any intention of carrying out the crimes. | Actus reus complete | Directing requests to a police operative who merely pretends to agree does not prevent the actus reus of incitement from being completed (Dimozantos; Massie). The target's lack of intention, and the impossibility of the crime being carried out through that target, is irrelevant to the physical element. |
| R v Zhan Yu Zhong VSCA 56 (conditionality) | Zhong had five separate meetings over several months with an undercover officer ("Mark"), requesting that Mark murder his de facto wife, Ms Miao, by raping and killing her or staging a simulated accident. He identified her from photographs and paid a $200 deposit and a $1,000 casino chip. The agreed fee was $10,000, and it was agreed Mark would not carry out the killing until Zhong paid an initial lump sum of $5,000. Zhong argued that because the request was subject to a condition precedent, there was no completed actus reus — merely a hypothetical negotiation. | Appeal dismissed — conviction upheld | A conditional request is capable of constituting the actus reus of incitement. Buchanan JA (Winneke P and Phillips JA agreeing): contractual "legal niceties" from civil law (such as conditions precedent) are not to be imported into the criminal law of incitement. A command or request conditional on a future event is still an incitement even if the accused has no control over that event. Qualification: if a proposal is hedged about by so many extreme, remote or highly unlikely qualifications, a jury may conclude it was merely a hypothetical exploration and did not cross the threshold. |
ELEMENT 2 Intention (mens rea) — s 321G(2)
Did the accused intend that the principal offence be committed? Must intend that the offence the subject of the incitement be committed (s 321G(2)(a)). Result offences: where the principal offence requires a result (e.g. the victim's death), the accused must intend the principal offender to bring about that result — even where that intention is not required to convict the principal offender of the completed offence (Massie). E.g. for murder, the inciter needs to intend that the victim be killed, intention to cause serious injury is insufficient. Required state of mind: where the principal offence must be committed with a particular state of mind, the accused must intend the person incited to have that state of mind (Criminal Law Working Group, Report on Incitement, 1982). Facts / circumstances (s 321G(2)(b)): the accused must also intend or believe that any fact or circumstance which is an element of the offence will exist at the time the conduct is to take place.
Incitement to murder = intent to KILL only
The Crown must prove the accused intended the person incited to kill the victim; a trial judge must not direct that an intent to inflict serious injury suffices for incitement to murder — the intended harm must be death (R v Massie [1999] 1 VR 542).
Mens rea: the dual intent (s 321G(2))¶
| Case | Facts | Outcome | Principle |
|---|---|---|---|
| R v Massie 1 VR 542 → s 321G(2)(a) | Charged with two counts of incitement to murder (directing Joe Black to kill his brother and sister-in-law) and one count of incitement to intentionally cause serious injury (directing Black to seriously injure his former de facto wife). His sole defence was lack of mens rea — he was "pretending" or "play-acting" and not "in earnest". The trial judge's charge on the elements of murder included the standard definition of principal murder (which includes an intent to cause grievous bodily harm). He appealed, saying this misdirected the jury on the mens rea for incitement to murder. | Convictions upheld | Though the charge was unnecessarily convoluted, the verdict showed the jury was satisfied the requests were genuine and that Massie subjectively intended the deaths to occur. Result crimes — the higher threshold: where the principal offence requires the principal to cause a particular result (death in murder), the Crown must prove the inciter specifically intended that result. This is higher than the fault required of the principal: a principal can be convicted of murder intending only really serious injury, but an inciter who intended only really serious injury cannot be convicted of incitement to murder — only of incitement to cause serious injury. |
| R v Massie 1 VR 542 → s 321G(2)(b) | Brooking JA addressed when the jury should be directed on the second limb. | Direction generally unnecessary | It is generally unnecessary and highly undesirable to instruct the jury on s 321G(2)(b) in simple and direct cases of incitement. Recourse to the Parliamentary debates and the Working Group reports shows the limb was designed solely for cases where the principal offence contains elements of strict or absolute liability (cf Churchill v Walton 2 AC 224). Its purpose is to protect an inciter from liability for a strict liability crime unless the Crown proves the inciter actually intended or believed those strict liability circumstances would exist. |
| R v Zhan Yu Zhong VSCA 56 (conditional intention) | Zhong argued his intention was conditional on payment of the $5,000 and therefore not a settled intention. | Argument rejected | A conditional intention — where the accused intends the crime be committed once a condition is satisfied — is sufficient to fulfil s 321G(2)(a). Qualifications and payment terms are simply evidentiary facts for the jury in deciding whether the accused had a settled, genuine intention that the crime be committed, as opposed to a mere hypothetical exploration. |
Impossibility & the imaginary crime (s 321G(3))¶
IMPOSSIBILITY Factual impossibility vs the imaginary crime
Did facts unknown to the accused make the incited offence impossible — or was there no real offence at all? → Guilty despite impossibility (s 321G(3)) — a person may be convicted even though facts of which he or she is unaware make commission of the incited offence impossible. → NOT incitement — imaginary crime — if the accused erroneously believed he was inciting a crime, but the conduct incited is no offence known to law. The crime incited must be a real offence, not an imaginary one (R v Sirat (1986) 83 Cr App R 41).
s6B(2) of the Crimes Act creates the offence of “incitement to commit suicide”. That is its own self-contained offence. You can potentially layer s312G on top of that offence, to create the offence of “inciting some to incite someone else to commit suicide”.
Authorities: Impossibility (s 321G(3)) and imaginary crimes¶
| Authority | Proposition | Detail |
|---|---|---|
| s 321G(3) | Factual impossibility is no defence | A person may be found guilty notwithstanding the existence of facts of which they are unaware which make the commission of the offence impossible. |
| R v Massie 1 VR 542 | The dead victim illustration | Brooking JA's classic example: if an accused incites another to murder a victim who, unbeknownst to the accused, is already dead at the time of the request, the accused remains fully guilty of incitement to murder under s 321G(3). |
| R v Brown (1899) 63 JP 790 | Harmless substance | Darling J: inciting a woman to take a substance believing it capable of procuring an abortion is incitement to attempt abortion, even though the substance is completely harmless and commission in the manner proposed is factually impossible. |
| R v De Kromme (1892) 17 Cox CC 492 | Impossible theft | Inciting a person to steal goods is a completed offence of incitement even if the theft is factually impossible to carry out. |
| R v Baker (NZ) | Complicity in the attempt | A person who encourages or counsels another to commit a specific offence unable to be carried out due to factual impossibility can be properly convicted of complicity in the attempt. |
| R v Sirat (1986) 83 Cr App R 41 | Imaginary crimes — the limit | The crime incited must be a real offence in law. If the accused erroneously believes the conduct incited is criminal but no such offence exists under Victorian law, they cannot be convicted. The statutory preservation of liability for impossibility does not extend to imaginary or legally non-existent crimes. |
Where these authorities were collected: Franze v R VSCA 352 reviewed the historical development of impossibility in inchoate offences, identifying Brown, De Kromme and Baker.
Practice points¶
• Complete on communication: do not concede more than the Crown needs — but equally, do not run "nothing happened". The offence is complete once the request comes to the target's knowledge; the target's response, intention and capacity are all irrelevant (Massie; Dimozantos).
• The real battleground is genuineness: Massie shows the "play-acting / not in earnest" defence goes to s 321G(2)(a) intent. Build the case theory around whether the intention was settled and genuine rather than hypothetical.
• Use conditionality as evidence, not law: after Zhong, a condition precedent is not a legal answer. But extreme, remote or numerous qualifications remain powerful evidentiary material for a jury finding mere hypothetical exploration.
• Match the intended result to the charge: on incitement to murder, insist the Crown prove an intention that the victim die. An intention to cause really serious injury supports only incitement to cause serious injury — a real charge-reduction argument.
• Resist a s 321G(2)(b) direction in simple cases: Massie — it is unnecessary and undesirable. Reserve the limb for principal offences with strict or absolute liability elements, where it operates in the accused's favour.
• Do not plead factual impossibility: s 321G(3) forecloses it. Do interrogate whether the conduct incited is a real offence — Sirat imaginary crimes is the surviving route.
Distinguishing features & open questions¶
• Substantive & inchoate: complete on the inciting conduct; the incitee need not agree, intend, or act (Massie; Zhong).
• vs accessorial liability: complicity requires the principal offence actually to be committed; incitement does not — the incitement stands alone.
• Incitee's mens rea irrelevant: s 321G does not require the person incited to form any mens rea, nor to be affected other than the incitement coming to their knowledge (Zhong).
• Undercover agents: it is no answer that the person incited was an undercover police agent who never intended to carry out the crime (Massie).
• 'Incitement to incite': it is unresolved whether an offence of inciting a person to incite may be charged (open question in the notes).
• Jury directions: in straightforward direct incitement cases, avoid over-complex directions; the s 321G(2)(b) circumstantial-intent and impossibility provisions need not be left to the jury unless they arise on the facts (Massie).
Penalties (s 321I) — usually equal to the substantive offence¶
Key contrast: unlike attempt (one level below the offence, s 321P), incitement generally carries the same maximum as the completed offence (s 321I(1)©). The main variations:
| Situation (s 321I) | Maximum for the incitement |
|---|---|
| Substantive penalty fixed by law | Not exceeding that penalty — s 321I(1)(a) |
| Imprisonment, maximum not prescribed by law | Level 4 imprisonment (15 years) — s 321I(1)(b) |
| Murder or treason | Level 1 (life), or such other term as the court fixes — s 321I(1)(ba) |
| Any other Vic offence with a prescribed maximum | Not exceeding that maximum (or the accumulated maxima) — s 321I(1)© |
| Offence triable only in the Magistrates' Court | Level 6 (5 years), or the prescribed maximum — whichever is greater — s 321I(1)(d) |
| Offence against a law outside Victoria | Imprisonment offence: term not exceeding its maximum; otherwise a level 6 fine (600 pu) — s 321I(2) |
Jurisdiction, procedure & extraterritoriality¶
• Indictable regardless (s 321G): incitement is an indictable offence whether or not the incited offence is indictable.
• Extraterritorial (s 321H): the commission of an offence reaches an offence outside Victoria only if (a) its elements would be a Victorian offence if occurring here, and (b) the inciter is in Victoria at the time of inciting.
• Consent & time limits (s 321K): any consent-to-prosecute requirement for the substantive offence applies to the incitement (s 321K(1)); a time-barred substantive indictable offence bars the incitement (s 321K(2)); no double conviction for the same inciting (s 321K(3)).
• Other-enactment incitement (s 321J): the s 321G(2)–(3) fault and impossibility rules apply to incitement offences created by other enactments.
Currency watch¶
• s 321L — common law incitement abolished; plead the statutory offence (s 321G).
• s 321GA (30 Sept 2025) — incitement of a child who may not be criminally responsible: guilty even if the incitee is a child presumed incapable under Youth Justice Act 2024 ss 10–11 (under 12 conclusive; 12–13 rebuttable). Inserted by the YJA 2024 — contrast attempt, which received no equivalent child provision.
• s 2A 'incite' — amended by No. 11/2025 to add a carve-out for section 195N; verify the s 195N context before relying.
• Penalty trap (s 321I) — incitement maximum = the substantive maximum (generally), not one level down (contrast attempt, s 321P).