47. Complicity (Involvement) — Vic Criminal Law¶
Scope and currency
Cheat sheet · ss 323–324C Crimes Act 1958 (Vic) · common-law complicity abolished from 1 November 2014 · current to July 2026
Deeming rule (s 324(1)): a person involved in the commission of an offence within s 323(1) is taken to have committed it and is liable to the maximum penalty. The four bases in s 323(1)(a)–(d) are exhaustive. Complicity is a route to liability, not a separate offence — and, unlike attempt/conspiracy/incitement, it needs the principal offence to be actually committed. Work the gates below per accused, per limb.
The basics — what is complicity?¶
Concept: Complicity is the law that makes a person who assists, encourages, directs or agrees in another person's crime liable for that crime itself — as though they had committed it (s 324(1)). The person who physically commits the offence is the perpetrator (or principal); the person made liable through complicity is a secondary party; the crime committed is the principal offence.
Where it sits & how it differs from the inchoate offences¶
• Not inchoate: unlike attempt, conspiracy and incitement, complicity requires the principal offence to be actually committed — if the crime never happens, only an inchoate offence can apply.
• The deeming rule (s 324(1)): a person 'involved in the commission of an offence' (s 323(1)) is taken to have committed it and is liable to the maximum penalty for that offence — whether the offence is indictable or summary.
• Exhaustive bases: the four bases in s 323(1)(a)–(d) are exhaustive; every complicity case is involvement under one of them.
• Derivative vs primary:
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the assistance limbs (a)/(b) are derivative (they depend on a principal's guilt);
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the agreement limbs ©/(d) are primary (agency — the perpetrator's acts are attributed to the accused) (Osland v The Queen (1998) 197 CLR 316; Rohan).
• Intent to Kill (murder): Unlike inchoate offences which requires the intent to kill in order to secure a conviction for an attempted murder, complicity requires no such explicit intent, intent to inflict serious injury is sufficient for a complicit murder: DPP v Gebregiorgis [2023] the case involved two brothers who both stabbed the deceased, but it could not be proven who inflicted the fatal wound. The Court noted that this is vital for the operation of section 324B which allows a jury to convict an accused if they are satisfied the accused is guilty as either the principal or a secondary party but cannot determine which. This provision would be unworkable if the secondary party required a higher fault element (intent to kill) than the primary offender (intent to cause really serious injury)
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Derivative Liability under s 323(1)(a) (Assistance/Encouragement): The Court affirmed that this limb creates derivative liability. To find a secondary party guilty of murder, the prosecution must prove they knew or believed the principal offender was committing an act with the intent necessary for murder (which includes either the intent to kill or the intent to cause really serious injury). With that knowledge, the secondary party must have intentionally encouraged that act. It is not necessary that they intended death to result; intending the victim to suffer really serious injury is sufficient.
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Primary Liability under s 323(1)© (Agreement): The Court clarified that this limb creates primary liability based on agency, closely resembling the common law doctrine of joint criminal enterprise. For a murder conviction under this limb, the prosecution must simply prove the parties agreed to perform an act with the intent necessary for murder. Again, an agreement to cause really serious injury is sufficient; there is no requirement to prove an explicit agreement to kill.
A brief history of the law: At common law parties were classified as principals in the first degree (the perpetrator), principals in the second degree (present, aiding or abetting) and accessories before the fact (who counselled or procured beforehand), alongside the doctrines of acting in concert, common purpose and joint criminal enterprise — including extended JCE (McAuliffe; Johns; Miller). For offences committed on or after 1 November 2014, the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 (No. 63/2014) abolished all of these (s 324C) and replaced them with a single statutory concept of involvement (s 323). Pre-1 November 2014 conduct is still governed by the common law. Accessory after the fact survives as a separate offence (s 325).
Automatic-fail terminology (current law, post-1 Nov 2014)
Never use 'joint criminal enterprise', 'JCE', 'EJCE', 'acting in concert', 'common purpose' or 'aiding and abetting' to describe the current law — frame everything as involvement under s 323(1). McAuliffe, Johns and Miller are background only. And use 'probable', never 'possible', for the (b)/(d) threshold — 'possible' signals abolished common-law law.
Run it in this order¶
Per accused, per limb:
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start from the deeming rule (s 324(1));
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Gate 0 — complicity, or a discrete offence (accessory after the fact, s 325)?
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Gate 1 — an agreement (→ c/d) or unilateral assistance (→ a/b)?
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identify the limb and its fault element (Giorgianni knowledge for a/b; the substantive offence's fault only for c, per Rohan);
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apply overlays (ss 324A, 324B, 324(3), 324AB; different offence; innocent agent);
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withdrawal (s 324(2)) if raised.
Statutory scheme — Subdivision (1) Complicity, ss 323–325¶
| Provision | What it does |
|---|---|
| s 323 | Interpretation — defines 'involved in the commission of an offence' via the four limbs (a)–(d). s 323(2): for encouragement, no need to prove the principal was in fact encouraged. s 323(3): a person may be involved by act or omission, even if not physically present, and whether or not they realise the facts constitute an offence. |
| s 324 | Deeming rule — an involved person is taken to have committed the offence and liable to the maximum penalty (s 324(1)); withdrawal exemption (s 324(2)); and no liability for an offence intended to benefit or protect that person (s 324(3), e.g. the victim). |
| s 324A | The involved person may be found guilty whether or not any other person is prosecuted for, or found guilty of, the offence. |
| s 324AB | Complicity with a child who may not be criminally responsible — the capable party stays liable under (a)/© (s 324AB(1)) or (b)/(d) (s 324AB(2)) though the conduct was a child's; the child's Youth Justice Act 2024 ss 10–11 immunity is preserved (s 324AB(3)). YJA 2024; commenced 30 Sept 2025. |
| s 324B | The trier of fact may convict where satisfied the accused is guilty either as perpetrator or as an involved person, but cannot determine which. |
| s 324C | Abolition — s 324C(1) abolishes aiding, abetting, counselling and procuring; s 324C(2) abolishes acting in concert, joint criminal enterprise and common purpose (including extended common purpose). Common-law withdrawal is not abolished. |
| s 325 | Accessory after the fact — a discrete indictable offence (elements/penalty below); sits outside the involvement framework. |
The four bases of involvement at a glance (s 323(1))¶
| Limb / provision | Trigger | Nature | Fault element |
|---|---|---|---|
| s 323(1)(a) — accessorial | Unilateral assistance / encouragement / direction of the offence | Derivative | Intention + Giorgianni actual knowledge of the essential facts (recklessness or suspicion insufficient) |
| s 323(1)(b) — extended accessorial | Assistance to a foundational offence; charged offence a foreseen escalation i.e. accessory to carjacking could make you an accessory to culpable driving causing death |
Derivative | Intention as to the foundational offence + awareness the charged offence was probable |
| s 323(1)© — joint commission | Agreement, arrangement or understanding to commit the offence | Primary (agency) | The substantive offence's own fault only — no Giorgianni knowledge (Rohan) |
| s 323(1)(d) — extended joint commission | Agreement to a foundational offence; charged offence a foreseen escalation i.e. if you are a joint commissioner of an importation crime and it is reasonably foreseeable that you’d need to deal with proceeds of crime, you would become a joint commission of POC offences too |
Primary (agency) | Awareness the charged offence was probable (more likely than not) |
Derivative Liability does not mean the secondary party's guilt is tethered to the principal offender's conviction. Section 324A of the Crimes Act 1958 (Vic) expressly resolves this tension by providing that a person involved in the commission of an offence may be found guilty "whether or not any other person is prosecuted for or found guilty of the offence". It just means that the Crown must prove that a principal offence was actually committed, the nature of the principal's defence is critical, and you must distinguish between lawful justification and a lack of criminal capacity:
Lawful Justification (e.g., Self-Defence): If the principal offender is found not guilty by reason of self-defence, their underlying act was legally justified. Because the act was lawful, no principal offence was committed in fact. As was explicitly noted in DPP v Gebregiorgis and R v Novakovic, because liability under s 323(1)(a) requires proof of an offence committed by a principal, if the principal is not guilty by reason of self-defence, the secondary party cannot be guilty.
Lack of Capacity (e.g., Mental Impairment): If the principal is acquitted not because the act was justified, but because they lacked criminal capacity (such as being legally insane or a child), the law invokes the doctrine of "innocent agency". As discussed by the High Court in White v Ridley and Matusevich v The Queen, the law treats the principal as an innocent instrument or agent. The secondary party who procured, assisted, or encouraged the act with the requisite mens rea is treated as the principal offender and remains fully liable.
The distinction: ss 323(1)(a)–(b) impose derivative liability — drawn from a principal's commission of the offence. ss 323(1)©–(d) impose primary liability resting on agency — the acts done within the agreement are attributed to every party. The classification is not academic: it selects the fault element, and it decides whether the principal's acquittal is fatal to the Crown case.
The distinction at a glance¶
| Derivative — ss 323(1)(a)–(b) | Primary — ss 323(1)©–(d) | |
|---|---|---|
| Basis of liability | Drawn from the principal's commission of the offence | Agency — acts within the agreement's scope are attributed to all parties |
| Source of the link | The accused's intentional assistance, encouragement or direction | The agreement, arrangement or understanding itself |
| Fault element | Giorgianni actual knowledge of the essential facts | The substantive offence's own fault only (Rohan) |
| Principal offence must be committed in fact? | Yes — the Crown must prove the principal offence was actually committed | The agreed acts must have been performed in accordance with, and within the scope of, the agreement |
| Part played | Secondary to the perpetrator | All parties equally guilty regardless of the part each played |
| Leading authority | Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473 | The King v Rohan (a pseudonym) [2024] HCA 3 |
The authorities¶
| Case | Facts | Outcome | Finding & principle |
|---|---|---|---|
| Giorgianni v The Queen (1985) 156 CLR 473 → s 323(1)(a) | Giorgianni owned or leased a prime mover and trailer used for hauling coal. On 18 May 1979 his employee, Renshaw, drove the heavily laden truck down a steep incline at Mount Ousley; the brakes failed and it collided with other vehicles, killing five people and seriously injuring a sixth. Giorgianni was not present. Giorgianni was charged with culpable driving causing death and grievous bodily harm (s 52A Crimes Act 1900 (NSW)) on accessorial liability (s 351), the Crown alleging he procured the offence by directing his employee to drive knowing the brakes were dangerously defective. The trial judge directed that he could be convicted if he "ought to have known" of the defects through reasonable care, or if he acted "recklessly not caring whether these facts existed". |
Special leave granted; appeal allowed — convictions quashed, new trial ordered | The directions were materially defective: negligence, imputed knowledge ("ought to have known") and recklessness cannot ground accessorial liability. Secondary participation requires a specific, purposive state of mind. Gibbs CJ: no person can be convicted as an accessory unless, knowing all the essential facts which made what was done a crime, they intentionally aided, abetted, counselled or procured the principal's acts. Wilful blindness (deliberately shutting one's eyes to a virtually certain fact) may be treated as equivalent to knowledge — but neither negligence nor recklessness suffices. |
| The King v Rohan (a pseudonym) [2024] HCA 3 → s 323(1)© | Rohan was jointly charged with two co-accused (MK and WF) over events one evening in December 2018. MK picked up two young girls — Daisy (11) and Katie (12) — supplied them with cannabis and alcohol, and sexually penetrated Daisy. All three were charged with the same principal offences: supplying a drug of dependence to a child (s 71B Drugs, Poisons and Controlled Substances Act 1981 (Vic)) and sexual penetration of a child under 12 (s 49A(1) Crimes Act 1958 (Vic)). Knowledge of the victims' ages was not an element of either principal offence. The Crown ran s 323(1)© with s 324(1) — an agreement, arrangement or understanding — so all three were liable regardless of who performed the acts. The trial judge did not direct that the jury had to find the accused knew the girls' ages. The Court of Appeal overturned the convictions, holding the Crown had to prove Rohan knew the ages at the time of the agreement. |
Crown appeal allowed — CA orders set aside; Rohan's appeal against conviction dismissed | The prosecution is not required to establish that the accused knew or believed, at the time of entering the agreement, the essential facts making the proposed conduct an offence where that knowledge or belief is not an element of the principal offence itself. Since knowledge of the children's ages was not an element of the drug-supply or sexual-penetration offences, the Crown did not need to prove Rohan knew their ages. Liability under s 323(1)© is primary and direct, based on agency — there is no basis to read the Giorgianni actual-knowledge standard into s 323(1)©. Once the agreement is formed, the principal's acts done in accordance with it are attributed to the secondary party; all participants are equally guilty as principals in the first degree, and neither presence nor an overt act need be proved. |
| s 323(1)(a) What the Crown must prove — accessorial | |||
| → A principal offence committed in fact: liability is derivative — it depends on proving another actually committed the offence. → Actual knowledge of the essential facts: the secondary party must have actual knowledge or belief of the essential circumstances constituting both the actus reus and the fault elements of the principal offence. → Knowledge of the principal's state of mind: e.g. on a murder charge under s 323(1)(a), the Crown must prove the secondary party knew or believed the principal was going to act with intent to kill or cause really serious injury, and with that knowledge intentionally assisted, encouraged or directed. → "Intentionally" is deliberate drafting: the word was inserted into s 323(1)(a) expressly to preserve the Giorgianni common law fault element. |
s 323(1)© What the Crown must prove — agreement
→ An agreement, arrangement or understanding: the foundational element; it need not be formal, and no overt act or presence is required. → The mens rea of the principal offence only: no additional accessorial fault element. The secondary party is judged strictly on the fault elements that make up the principal offence. → Attribution: acts done by the principal in accordance with the agreement are legally attributed to every party — all are principals in the first degree, whatever their individual role.
Forensic application¶
• Pin the limb first: the same facts yield different fault burdens. Make the Crown nominate whether it runs s 323(1)(a) or s 323(1)© — and hold it to that election.
• Under s 323(1)(a) — exploit the Giorgianni threshold: argue the accused lacked actual knowledge of an essential fact (the classic example: a weapon secretly carried by a co-accused). Resist any direction inviting conviction on "ought to have known", carelessness or recklessness — that is the Giorgianni error.
• Wilful blindness is the Crown's answer: anticipate the Crown running deliberate eye-shutting to a virtually certain fact as equivalent to knowledge; keep the distinction between wilful blindness and mere suspicion or recklessness sharp.
• Under s 323(1)© — no "double intent" burden: Rohan means the Crown does not have to prove knowledge of facts that are not elements of the principal offence. Where the principal offence contains strict or absolute liability elements, the secondary party is equally subject to them without any additional accessorial knowledge.
• Attack the agreement instead: on the © limb the battleground is the existence and scope of the agreement, arrangement or understanding — not the accused's knowledge of collateral circumstances.
The critical divide — factual commission vs legal prosecution¶
Derivative does not mean tethered to the principal's conviction. The Crown must prove the principal offence was actually committed as a matter of fact; it need not prove the principal was convicted of it — or prosecuted at all. Section 324A resolves the tension expressly: a person involved may be found guilty 'whether or not any other person is prosecuted for or found guilty of the offence'.
THE GATE Does the principal's outcome defeat the secondary party?
The principal was acquitted, not prosecuted, or pleaded to a lesser offence. Run the limb first, then the reason for the acquittal. → Principal pleaded to a lesser offence, or was never prosecuted — either limb: Liability survives (s 324A). Accepting a plea is an exercise of prosecutorial discretion, often on evidentiary grounds specific to that prosecution. A conviction is conclusive only as between the Crown and that offender; co-offenders are legal strangers to the secondary party's proceeding. The Crown is not estopped from alleging the greater offence and may adduce evidence to establish, as a matter of fact, that the principals committed it (Likiardopoulos v The Queen HCA 37; (2012) 247 CLR 265). → Principal acquitted on a lawful justification (self-defence) — derivative limb (a)/(b): Liability fails. The principal's act was legally justified, so no principal offence was committed in fact — and derivative liability requires one (DPP v Gebregiorgis VSCA 166; (2023) 71 VR 361; R v Novakovic [yr?] VSC 339). → Principal acquitted on a lawful justification — primary limb ©/(d): Liability survives. The acts are attributed to the secondary party, who possessed their own intent for the offence without any lawful justification of their own (Osland v The Queen HCA 75; (1998) 197 CLR 316). → Principal acquitted for lack of capacity (mental impairment, infancy) — either limb: Liability survives via innocent agency: the principal is treated as an innocent instrument, and the accused who procured, assisted or encouraged the act with the requisite fault is treated as the principal offender (White v Ridley HCA 38; (1978) 140 CLR 342; Matusevich v R (1977) 137 CLR 633). Where the actor is a child presumed incapable, s 324AB now supplies a direct statutory route.
Osland is a primary-limb case — do not state the proposition at large
Osland concerned acting in concert, i.e. the primary liability now codified in s 323(1)© — not the derivative limb. It is wrong to write generally that 'a secondary party remains liable where the principal is acquitted on a personal defence'. That holds on the primary limb; on the derivative limb it holds only where the acquittal was for incapacity, not for lawful justification. Note also a tension between returns: an earlier return indexed Osland under innocent agency, this one under primary liability by agreement — verify before relying on either framing.
Quick routing — does secondary liability survive?¶
| What happened to the principal | Derivative limb s 323(1)(a)–(b) | Primary limb s 323(1)©–(d) | Key provision / authority |
|---|---|---|---|
| Pleaded to a lesser offence, not prosecuted, or not convicted | Survives | Survives | s 324A; Likiardopoulos |
| Acquitted on a lawful justification (self-defence) | Fails — no unlawful act, so no principal crime | Survives — secondary party judged on own mens rea and own justification | DPP v Gebregiorgis; R v Novakovic / Osland |
| Acquitted for lack of capacity (mental impairment, doli incapax) | Survives via innocent agency | Survives via innocent agency (subject to the Matusevich assent qualification) | s 324AB; White v Ridley; Matusevich |
1 — Principal pleaded to a lesser offence, or not prosecuted (liability under either limb)¶
| Case | Facts | Outcome | Finding & principle |
|---|---|---|---|
| Likiardopoulos v The Queen [2012] HCA 37; (2012) 247 CLR 265 | Convicted of murder as an accessory. Part of a joint criminal enterprise with several co-offenders to assault the victim over two days, ultimately causing death. He was not shown to have been present in the immediate vicinity at all times, and no single blow or act could be identified as the immediate cause of death. Before his trial the Crown accepted pleas to manslaughter and to being an accessory after the fact to manslaughter from the co-offenders the Crown alleged were the actual principal perpetrators of the murder. He argued he could not be convicted of murder as an accessory where no principal had been convicted of murder. |
Appeal dismissed — conviction upheld | No obstacle in law. Accepting a guilty plea is purely an exercise of prosecutorial discretion. A conviction or plea is conclusive only as between the Crown and that offender; other co-offenders are legal strangers to those proceedings. The Crown is not estopped from alleging the greater offence against the secondary party and may adduce evidence to establish, as a matter of fact at the secondary party's trial, that the principals did commit the murder. The evidence in separate proceedings is distinct — the Crown's forensic capacity is not limited by the co-offenders' plea negotiations. Statutory anchor: s 324A — a secondary party may be found guilty whether or not the principal is prosecuted for or found guilty of the offence. |
2 — Principal acquitted on a lawful justification (self-defence)¶
| Case | Limb | Facts | Outcome | Finding & principle |
|---|---|---|---|---|
| DPP v Gebregiorgis VSCA 166; (2023) 71 VR 361 and R v Novakovic VSC 339 | Derivative s 323(1)(a) | (Novakovic) Spontaneous fatal stabbing during a restaurant kitchen group assault — Novakovic spontaneously picked up a knife and stabbed the victim, causing death. Sasa Jovic and Milan Jovic were tried alongside him on a complicity basis. Sasa Jovic succeeded on a no-case submission on murder and manslaughter. The Crown ran its case against Milan Jovic on derivative liability under s 323(1)(a). | Secondary liability fails | Liability under s 323(1)(a) (intentional assistance, encouragement or direction) is strictly derivative: it requires proof of an unlawful physical act committed by a principal. If the principal is not guilty by reason of self-defence — a complete legal justification — the principal's act is lawful, no principal crime has occurred, and the secondary party cannot be convicted (VSCA in Gebregiorgis; Croucher J in Novakovic). |
| Osland v The Queen HCA 75; (1998) 197 CLR 316 | Primary s 323(1)©–(d) | Mrs Heather Osland and her son David Albion jointly tried for the murder of Frank Osland (her husband, his step-father). Crown case: mother and son acted in concert. She mixed sedatives into the deceased's dinner to put him to sleep; David then killed him by striking his head with an iron pipe in her presence; they buried the body in a pre-dug grave. David raised self-defence and provocation on a history of severe family violence. Jury convicted Mrs Osland of murder but could not reach a verdict on David (retried and acquitted). She appealed, arguing her conviction was inconsistent with his. | Appeal dismissed — her conviction upheld | Acting in concert / joint criminal enterprise is a doctrine of primary, not derivative, liability (plurality; McHugh J). The physical acts constituting the actus reus are attributed to all parties to the agreement, making them all principal offenders in the first degree. But criminal responsibility is direct and independent — each is evaluated on their own mens rea and any individual justification. So the actual perpetrator (David) could be acquitted because the Crown failed to disprove self-defence BRD, while Mrs Osland remained properly convicted: she had the requisite murderous intent and no lawful justification of her own. |
3 — Principal acquitted for lack of capacity (mental impairment, infancy) — innocent agency¶
| Case | Facts | Outcome | Finding & principle |
|---|---|---|---|
| White v Ridley HCA 38; (1978) 140 CLR 342 | White concealed cannabis inside a stereo receiver packed in a box and consigned it with Singapore Airlines in Singapore for transport to Australia; the airline was entirely unaware the cargo held a prohibited drug. Before arrival White was searched by Customs, became apprehensive, and sent an urgent telex asking the airline to cancel delivery and hold the box — but, to protect himself, did not disclose that the package contained illegal drugs. The carrier flew the box to Australia where it was intercepted. Convicted of importing a prohibited import; appealed claiming successful withdrawal. | Appeal dismissed — conviction upheld | Gibbs and Stephen JJ: a person who commits a crime using an "innocent agent" / "innocent instrument" is liable as a principal offender — the agent's physical act is legally attributed to the mastermind with the criminal intent. This applies not only where the agent lacks criminal responsibility (insane, or too young) but also where the agent is of sound mind but ignorant of the true facts and believes they are acting lawfully. To escape liability after setting the agent in motion the accused must issue a timely countermand and take all reasonable steps to counteract the earlier request. White failed — he deliberately withheld that the box contained cannabis, depriving the airline of the information needed to appreciate the urgency. |
| Matusevich v The Queen (1977) 137 CLR 633 | Matusevich, a sane prisoner, was placed in a cell with Thompson (who had a history of insanity) and Whateley. Whateley was killed with an axe in the cell. Thompson was found not guilty of murder on the ground of insanity; Matusevich was convicted on the basis of acting in concert. | Special leave granted; new trial ordered (inadequate jury directions) | A sane person can act in concert with an insane person, and the insane person's physical acts are attributed to the sane person. Qualification: for a common understanding or agreement to exist, the mentally impaired perpetrator must still have the subjective capacity to "assent" to the physical acts constituting the actus reus. If the insanity is so profound that the perpetrator does not understand the nature and quality of the physical act, there can be no assent or agreement and acting in concert must fail. But where the perpetrator lacks that capacity entirely, the sane accused who persuaded or procured them to act can still be convicted as a principal under innocent agency. |
Practice points¶
• Identify the limb before anything else: the same facts produce opposite answers depending on whether the Crown pleads s 323(1)(a)–(b) (derivative — needs a principal offence in fact) or s 323(1)©–(d) (primary — acts attributed, own mens rea and own justification). Novakovic and Osland are the paired illustrations.
• Self-defence is the discriminator: a complete justification destroys derivative liability because there is no unlawful act; it does not touch primary liability, because the secondary party is judged on their own absence of justification. Distinguish a justification (no crime) from an excuse or capacity acquittal (crime still committed in fact).
• Plea outcomes are not binding: s 324A plus Likiardopoulos — co-offenders are legal strangers; the Crown may prove the greater offence afresh at the secondary party's trial. Do not concede a ceiling on the charge because principals resolved to manslaughter.
• Innocent agency covers the ignorant agent too: White v Ridley extends beyond incapacity to an agent of sound mind ignorant of the facts. Where the client set an agent in motion, withdrawal requires a timely countermand and all reasonable steps — a countermand that conceals the true urgency is ineffective.
• Children under the age of criminal responsibility: s 324AB gives a direct statutory route to liability where the physical actor is a child presumed incapable — plead it rather than relying solely on common law innocent agency.
• The Matusevich assent point: in a concert case involving a mentally impaired perpetrator, probe whether they could assent to the physical acts. No assent → no agreement → concert fails, and the Crown must fall back on innocent agency (procuring / persuading) instead.
Why the classification earns marks¶
• It selects the fault element: Giorgianni actual knowledge of the essential facts on (a); on ©, only the substantive offence's own fault — 'intentionally' is omitted from © (Rohan).
• It decides whether a co-accused's acquittal is fatal: run the gate above; the answer differs by limb and by the reason for the acquittal.
• It underpins s 324B: the secondary party is not held to a higher fault element than the perpetrator — otherwise a jury could not convict where it cannot determine which role the accused played (DPP v Gebregiorgis).
• Plead in the alternative: where the facts are equivocal, run © and (a) as alternative bases for the same accused — they carry different fault requirements and different consequences if the principal drops out.
The decision sequence — identify the basis of involvement¶
GATE 0 Complicity, or a discrete offence?
When did the accused's conduct occur relative to the principal offence? → Before / during (contributing to it): complicity under ss 323–324 → Gate 1. → After it is complete (harbouring, concealing, impeding): not complicity — the discrete offence of accessory after the fact (s 325).
GATE 1 The dividing line — agreement or unilateral assistance?
Is there an agreement, arrangement or understanding with another to commit an offence? No consensus or meeting of minds is needed for the assistance limbs (R v Lam & Ors (2005) 159 A Crim R 448). → Agreement (express, tacit or impromptu): joint commission → Gate 2. May be inferred from conduct or surrounding circumstances and reached moments before the act (R v Tangye (1997) 92 A Crim R 545; Guthridge v R (2010) 27 VR 452). → No agreement — unilateral aid or encouragement: accessorial → Gate 3.
GATE 2 Joint commission — agreed offence, or an escalation? (c vs d)
→ The agreed offence was committed: s 323(1)©. The King v Rohan three-stage test: - an agreement / arrangement / understanding; - a party performed all the acts/omissions for the offence within the agreement's scope; - the accused had the offence's required state of mind at the time of the agreement (Osland). → A different / greater offence resulted while carrying out the agreed (foundational) offence: s 323(1)(d) — extended joint commission: the accused was aware it was probable the charged offence would be committed.
GATE 3 Accessorial — assistance to the offence, or to a foundational offence? (a vs b)
→ Intentional assistance / encouragement / direction of the offence itself: s 323(1)(a). Assistance may be innocuous and the principal need not be aware of it; by s 323(2) no need to prove the principal was in fact encouraged. Mere presence is insufficient — the accused must be 'linked in purpose' (Lam). → Assistance to a foundational offence; a different / greater offence resulted: s 323(1)(b) — extended accessorial: the accused was aware it was probable the charged offence would be committed.
'Probable', not 'possible' (ss 323(1)(b), (d))
The threshold is awareness that the charged offence was probable (more likely than not) — deliberately narrower than the abolished common-law 'possibility' standard (McAuliffe; Johns). 'Possible' signals stale law.
Fault — the high-yield distinction¶
Do not import Giorgianni into ©:
For the assistance limbs (a)/(b), the accused must have intention and Giorgianni actual knowledge of the essential facts (otherwise you cannot assist, encourage or direct an offence if you don’t know the offence) — the physical and fault elements of the principal offence, including the perpetrator's state of mind (Giorgianni v The Queen (1985) 156 CLR 473); recklessness, suspicion or constructive knowledge is insufficient (wilful blindness aside).
For the agreement limb ©, The King v Rohan holds the prosecution need not prove the accused knew the essential facts making the conduct an offence (e.g. the victim's age) where that knowledge is not an element of the principal offence — © is primary liability requiring the substantive offence's fault only. Importing Giorgianni knowledge into © is the classic error.
In Rohan, the accused agreed to supply cannabis to two girls and engage in sexual penetration. The substantive statutory offences (supplying drugs to a child under 18; sexual penetration of a child under 12) did not require proof that the offender knew the victims were underage. Because knowledge of age was not an element of the principal offence, the High Court held the prosecution did not need to prove the accused actually knew the girls' ages at the time of entering the agreement. To import a requirement that they knew the "essential facts" (the girls' exact ages) would erroneously import Giorgianni into s 323(1)©.
Wilful Blindness¶
The classic definition of the doctrine, formulated by Professor Glanville Williams and adopted by the High Court in R v Crabbe (1985) 156 CLR 464, requires the prosecution to prove that:
The accused subjectively suspected the existence of the essential facts;
They realised their probability; and
They deliberately refrained from making inquiries because they preferred not to have their suspicions confirmed, intending to maintain a shield of deniability.
Where these three elements are met, the deliberate shutting of one's eyes is treated as legally equivalent to actual knowledge because it virtually amounts to the same level of moral culpability.
Overlays — shape the analysis, not which limb applies¶
• Principal need not be convicted (s 324A): involvement stands 'whether or not any other person is prosecuted for or found guilty of the offence' — a secondary party may be convicted even where the principals pleaded guilty to a lesser offence (Likiardopoulos v The Queen).
• But the offence must be 'committed': the prosecution must prove a principal committed the offence with the necessary fault (R v Jensen and Ward [1980] VR 194); where tried together on the same evidence, the accused generally cannot be convicted unless the principal is (Osland).
• Role need not be determined (s 324B): guilty if the trier of fact is sure the accused is guilty either as perpetrator or as an involved person, but cannot say which (Gebregiorgis).
• Protective-purpose exception (s 324(3)): no complicity liability for an offence that, as a matter of policy, is intended to benefit or protect the accused (e.g. the victim of the offence).
• Different offence: a secondary party may be convicted of a lesser offence than the principal — e.g. manslaughter where the principal is convicted of murder (R v Novakovic [2019] VSC 339; R v Oberin).
• Innocent agent: where the actus reus is performed by a person lacking capacity or ignorant of the facts (mental impairment, duress, deception), the user is liable as principal (White v Ridley (1978) 140 CLR 342; Matusevich v R (1977) 137 CLR 633; Osland).
• Child lacking capacity (s 324AB): a capable offender stays liable though the act was done by a child presumed incapable under Youth Justice Act 2024 ss 10–11 — (a)/© via s 324AB(1), (b)/(d) via s 324AB(2); the child's immunity is preserved (s 324AB(3)).
• Presence: physical presence is not required (s 323(3)); mere presence is insufficient (Lam), but non-accidental presence may amount to encouragement (moral support).
Withdrawal (s 324(2))¶
WITHDRAWAL s 324(2) — not s 324C(3)
Does the accused contend they pulled out before the offence was committed? The statutory exemption is in s 324(2); the substantive requirements are the preserved common law (White v Ridley; and the s 324C note). A change of mind, regret or flight is not enough. → Three elements — (i) timely — harder once the offence is underway (R v Tietie, Tulele and Bolamatu (1988) 34 A Crim R 438); (ii) communicated — unequivocal notice that the others must proceed without the accused's aid, or some other positive step such as informing police; (iii) effective — reasonable steps to undo the prior assistance. → Burden — an evidential burden on the accused to raise it; once raised, the prosecution must disprove withdrawal beyond reasonable doubt.
The two seminal withdrawal authorities¶
| Case | Facts | Outcome | Principles on withdrawal & countermand |
|---|---|---|---|
| White v Ridley HCA 38; (1978) 140 CLR 342 (innocent agency) | White concealed cannabis inside a stereo receiver packed in a box and consigned it with Singapore Airlines in Singapore for transport to Australia; the airline was completely unaware the cargo held a prohibited drug. Having arrived in Australia ahead of the shipment, White was searched by Customs, who found his consignment documents. Apprehensive, he sent an "urgent" telex via Ansett to Singapore Airlines instructing them to cancel the delivery and hold the box — but, to avoid self-incrimination, he did not tell the airline the box contained illegal drugs. The message was received too late or ignored; the box flew to Australia and Customs intercepted the cannabis. Convicted of importing a prohibited import (s 233B(1)(b) Customs Act 1901 (Cth)). | Special leave granted; appeal dismissed — conviction unanimously upheld | A person who commits a crime using an "innocent agent" / "innocent instrument" is liable as a principal: the airline lacked knowledge of the true facts, so its physical act of importing was attributed to White, who had the criminal intent. (1) Reasonable-steps test: after setting a crime in motion, a mere mental change of mind is insufficient — the accused must issue a timely countermand manifested by clear words or conduct. (2) Duty to neutralise: the countermand must be accompanied by such action as the accused can reasonably take to undo the effect of the prior encouragement, instruction or participation. (3) Deliberate concealment defeats withdrawal: White failed because he withheld that the box contained cannabis — had he disclosed it, the airline would have appreciated the true gravity and urgency and stopped the shipment. (4) Causation: an ineffective, tardy or reticent attempt to cancel is not a novus actus interveniens — the initial consignment remained the** legal cause of the importation. |
| R v Tietie, Tulele and Bolamatu (1988) 34 A Crim R 438 (spontaneous joint violence) | Murder charge arising from a brutal, spontaneous group assault by several men. With no definitive medical evidence identifying which blow caused death, the Crown case for murder / manslaughter rested on the common law doctrine of common purpose (joint criminal enterprise). Tietie admitted in his ROI that he actively participated in the assault, but said that when he thought the victim "had copped enough, I just stopped getting into him"; he called out loudly to the others to stop, and when they refused he ran from the scene to Museum Station and jumped on the first departing train. He argued this was an effective withdrawal before the fatal blow. | Appeal rejected — conviction upheld | Physical departure plus verbal requests to stop did not satisfy the rigorous standard for effective withdrawal from active, ongoing joint violence. Three-limb test (trial directions unanimously approved on appeal): the accused must (1) withdraw completely; (2) make it clearly known to the other participants that they are withdrawing; and (3) by such acts and words as may be appropriate, do what they reasonably can to dissuade the others from continuing the unlawful purpose. Timeliness depends strictly on the factual matrix — it is significantly more difficult to withdraw at the time of the offending than beforehand. Active duty: merely ceasing one's own participation, private regret, or fleeing shortly before completion is insufficient; once violence has commenced a secondary party who contributed to the hostile environment must take positive, active steps to defuse or prevent the crime — which later cases suggest may require alerting the police. Tietie's plea to stop followed by immediate flight failed to neutralise the momentum of the enterprise he helped set in motion. |
The test distilled¶
| Element | Requirement | Authority |
|---|---|---|
| Onus — evidential | The accused must point to some evidence of an unequivocal countermand. | s 324(2) (common law preserved) |
| Onus — legal | Once raised, the prosecution must disprove withdrawal beyond reasonable doubt. | s 324(2) |
| 1. Complete withdrawal | Cease participation entirely — a mental change of mind or private regret is not enough. | Tietie; White v Ridley |
| 2. Communication | Timely countermand manifested by clear words or conduct, making the withdrawal clearly known to the other participants. | Tietie; White v Ridley |
| 3. Reasonable steps to undo | Do what can reasonably be done to undo the effect of prior encouragement, instruction or participation — dissuade the others; where violence is under way, take positive steps to defuse or prevent (possibly alerting police). | Tietie; White v Ridley |
| Timeliness | Fact-specific. Far harder at the time of the offending than beforehand; a tardy countermand is ineffective. | Tietie; White v Ridley |
| Candour | Deliberate concealment defeats withdrawal — withholding the information that would let the agent appreciate the gravity and urgency renders the countermand ineffective. | White v Ridley |
| Causation | An ineffective, tardy or reticent cancellation is not a novus actus interveniens; the original contribution remains the** legal cause. | White v Ridley |
Practice points¶
• Get past the evidential threshold first: identify the unequivocal countermand in the evidence — words, conduct, a call, a message. Without it the issue never goes to the jury and the burden never shifts to the Crown.
• Then force the Crown to the criminal standard: once raised, the prosecution must disprove withdrawal BRD. Frame the closing around the Crown's failure to exclude an effective withdrawal, not the client's obligation to prove one.
• Match the test to the stage of the enterprise: pre-offence contributions (planning, supply, consignment) attract the White v Ridley countermand-and-undo analysis; offending in progress attracts the stricter Tietie three limbs plus an active duty to defuse.
• Candour is the trap: a client who cancels while concealing the criminal character of what they set in motion will fail — White v Ridley turns on precisely that. Anticipate the Crown running the concealment point.
• Do not confuse withdrawal with causation: an ineffective countermand does not break the chain. Arguing novus actus on a tardy cancellation is bad in law.
• Withdrawal is a secondary-party doctrine: s 324(2) preserves it for complicity. For a primary offender whose conduct has already crossed the attempt threshold, desistance is no defence and goes only to sentence.
Accessory after the fact (s 325) — a discrete offence¶
Elements (s 325(1)): the principal must have committed a serious indictable offence; and the accused, knowing or believing the principal guilty of that (or some other serious indictable offence), without lawful authority or reasonable excuse, does any act with the purpose of impeding the principal's apprehension, prosecution, conviction or punishment. The accused may be indicted before, with or after the principal, and whether or not the principal is amenable to justice (s 325(3); Likiardopoulos).
Penalty (s 325(4), (6)): if the principal offence carries level 1 (life) → level 3 imprisonment (20 years); otherwise imprisonment no more than 5 years and no more than half the longest term available for the principal offence. 'Serious indictable offence' = an indictable offence punishable on first conviction with life or 5+ years (s 325(6)).
Fault element by limb¶
| Case (citation as given) | Limb | Proposition |
|---|---|---|
| Giorgianni v The Queen HCA 29; (1985) 156 CLR 473 | s 323(1)(a) | Accessorial fault: actual knowledge of the essential facts constituting the principal offence. Recklessness or negligence as to whether the principal will offend is insufficient; wilful blindness — deliberately shutting one's eyes to avoid learning the truth — is treated as equivalent to actual knowledge. 'Intentionally' in s 323(1)(a) preserves this standard. |
| R v Lam & Ors VSC 294 | s 323(1)(a) | The prosecution need not prove the principal was actually aware of, or in fact encouraged by, the secondary party's conduct (cf s 323(2)). Evidence of the secondary party's prior conduct is admissible to prove intent and to characterise their acts at the scene. (Redlich J; Salt Nightclub murders.) |
| The King v Rohan (a pseudonym) HCA 3; (2024) 280 CLR 288 | s 323(1)© | The Giorgianni standard does not apply to the agreement limb. The prosecution need not prove the accused knew or believed the essential facts making the conduct an offence where that knowledge is not a legal element of the substantive offence — knowledge of the victims' ages was not required. |
| Mitchell v The Queen HCA 5; (2023) 276 CLR 299 | s 323(1)© — rationale | Agreement-based liability is primary liability resting on agency: acts within the scope of the agreement are done with the authority of the other parties and are attributed to all, who are equally guilty regardless of the part each played. |
Complicity in murder¶
| Case (citation as given) | Provision | Proposition |
|---|---|---|
| DPP v Gebregiorgis VSCA 166; (2023) 71 VR 361 | ss 323(1)(a), ©; 324B | No need to prove an intent or agreement to kill — intent or agreement to cause really serious injury suffices. Under (a), the secondary party must know or believe the principal is performing an act with the intent necessary for murder, and intentionally encourage that act; under ©, the parties must have agreed to perform an act with that intent. This construction is what makes s 324B workable: the secondary party is not held to a higher fault element than the perpetrator. |
| Wilio v The King (2023) | s 3A(1) — statutory murder | 'Death of another person' in s 3A(1) is wide enough to cover an accomplice: an accused may be convicted of statutory murder where their own conscious, voluntary and deliberate act of violence, in furtherance of a crime of violence, accidentally kills their co-offender. Rejects the argument that attribution between co-venturers prevents an accomplice 'murdering himself'. |
Where the principal is acquitted, unidentified or pleaded to less¶
| Case (citation as given) | Provision | Proposition |
|---|---|---|
| Osland v The Queen HCA 75; (1998) 197 CLR 316 | s 324A analogue | A secondary party remains liable for the planned offence even where the perpetrator is acquitted on a defence personal to them (mental impairment, self-defence). Now reflected in s 324A — guilt stands 'whether or not any other person is prosecuted for or found guilty of the offence'. |
| Likiardopoulos v The Queen HCA 37; (2012) 247 CLR 265 | s 324A analogue | A secondary party may be convicted of murder although the Crown accepted pleas to lesser offences from the principals; the exercise of prosecutorial discretion does not preclude the Crown proving at trial that the principal offence was in fact committed. |
Withdrawal — s 324(2)¶
| Case (citation as given) | Provision | Proposition |
|---|---|---|
| White v Ridley HCA 38; (1978) 140 CLR 342 | s 324(2) | Withdrawal must be unequivocally communicated to the other parties to countermand the previous agreement, and accompanied by such positive action as the accused can reasonably take to undo the effect of their previous encouragement or participation. |
| R v Tietie, Tulele and Bolamatu (1988) 34 A Crim R 438 | s 324(2) | Withdrawal once the enterprise is underway is difficult: the accused must withdraw completely and timely, make the withdrawal known to the others, and do what they reasonably can to dissuade them from continuing. Merely fleeing the scene or silently ceasing participation is insufficient. |
Abolished common law — historical context only (s 324C)¶
| Case (citation as given) | Status | Proposition — and why it still matters |
|---|---|---|
| McAuliffe v The Queen HCA 37; (1995) 183 CLR 108 | Abolished — s 324C(2) | Extended common purpose: a party who subjectively foresaw an incidental crime as a possible incident of the venture and continued to participate was liable for it. This possibility standard is precisely what ss 323(1)(b) and (d) replaced with awareness of probability. |
| Johns v The Queen HCA 3; (1980) 143 CLR 108 | Abolished — s 324C(2) | An accessory was liable for acts within their subjective contemplation as a possible incident of executing the common purpose, even outside the expressly agreed parameters. Cite only to mark the contrast with the (b)/(d) probability threshold. |
Currency watch¶
• 1 November 2014 — ss 323–324C commenced; common-law complicity abolished (Crimes Amendment (Abolition of Defensive Homicide) Act 2014, No. 63/2014).
• The King v Rohan (a pseudonym) [2024] HCA 3; (2024) 277 CLR 1 — controlling authority on s 323(1)©: joint commission is primary liability requiring the substantive offence's fault only — no Giorgianni knowledge.
• 30 September 2025 — s 324AB commenced (with ss 321AA conspiracy, 321GA incitement) under the Youth Justice Act 2024 (Vic), Act No. 32 of 2024; child-incapacity keyed to YJA ss 10–11 (under 12 conclusive; 12–13 rebuttable).
• Terminology — use 'involvement' and the s 323(1) limbs only; 'probable' not 'possible'; abolished common-law labels are historical context only.