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District Court 30 July 2024

R v Liu

[2024] NSWDC 321

Public order & justice offences
CRIME FEDERAL OFFENCES

Citation: R v Liu [2024] NSWDC 321
Court: District Court of New South Wales
Date: 30 July 2024
Judge(s): Newlinds SC DCJ

Background

The accused faced a charge (count two) of aiding, abetting, counselling, or procuring another person, referred to as Mr X, to commit an offence under s 39(1) of the Crimes Act 1914 (Cth). That underlying offence involves destroying or concealing evidence with intent to prevent it being used in proceedings. The physical conduct alleged against the accused was suggesting to Mr X that certain WeChat messages be deleted.

The question arose during the preparation of a document setting out the elements of count two for the jury. Specifically, the court had to determine whether the Crown was required to prove that the accused expected Mr X would act with the requisite mental state, namely the intention to prevent those messages from being used in evidence.

The Crown and the defence took opposing positions on the proper construction of the accessorial liability provision, s 11.2 of the Criminal Code Act 1995 (Cth), and on the continued relevance of High Court authority predating that statute.

Legal Issues

  • Whether it is an element of an accessorial liability charge under s 11.2(3)(a) of the Criminal Code Act 1995 (Cth) that the accused expected the principal offender would possess the fault elements (mental state) of the underlying offence.
  • Whether the High Court's decision in Giorgianni v The Queen (1985) 156 CLR 473 remains good law in light of s 11.2 of the Criminal Code Act 1995 (Cth).
  • How to interpret the phrase "including all its fault elements" in s 11.2(3)(a), and whether the Federal Court's reasoning in Commonwealth Director of Public Prosecutions v Citigroup Global Markets Australia Pty Limited [2021] FCA 1345 altered the applicable legal test.

Decision

Issue 1: The Crown's case that only the physical conduct needs to be proved

The Crown argued that it need only establish the accused intentionally counselled or procured the deletion of the messages, without proving the accused expected Mr X would hold the necessary intent to prevent the messages being used as evidence. The Crown relied on Wigney J's reasoning in the Citigroup (Citibank) case, submitting that an accessory need only procure a contravention of the "type" contemplated by the relevant offence provision, without satisfying its fault elements (at [5]-[6]).

The court identified several difficulties with this approach. First, the Citibank reasoning did not explain what should happen where offences of the same "type" carry different fault elements. Second, and more fundamentally, the text of s 11.2(3)(a) expressly includes the words "including its fault elements," which plainly refers to mental states required for conviction, not merely physical acts (at [7]-[8]).

Issue 2: The status of Giorgianni and the consistent line of authority

The Crown contended that Giorgianni was no longer good law because s 11.2(3)(b) introduced recklessness as a basis for accessorial liability, a concept not available at common law. The court accepted that s 11.2(3)(b) altered the common law in that limited respect. However, the critical question was whether s 11.2(3)(a) itself was intended to depart from the Giorgianni principle that an accessory must know or expect all the essential elements of the principal offence, including its fault elements (at [12]-[13]).

The court noted that both R v Spiteri-Ahern (No 11) [2017] NSWSC 1820 and Blundell v The Queen [2019] NSWCCA 3, which post-date s 11.2, applied the law as explained in Giorgianni without suggesting the statute had altered it (at [14]).

Issue 3: Proper interpretation of the Citibank decision

The court read Wigney J's remarks in Citibank as doing no more than confirming that an accessory can be liable even without knowledge that the principal's conduct is technically illegal, not as a holding that fault elements may be disregarded entirely. That reading is consistent with what Giorgianni itself says at and with Yorke v Lucas (1985) 158 CLR 661 (at [19]).

The court observed that if Wigney J had intended to depart from Giorgianni, or to construe "fault elements" as referring only to physical elements, he would have said so explicitly and would have engaged with the bracketed words in s 11.2(3) (at [19]). The plain words of s 11.2(3) are consistent with the pre-existing law, and had Parliament intended to alter that law, it would have used different words (at [19]-[20]).

Orders Made

  • It is an element of count two that, at the time the accused allegedly aided, abetted, counselled, or procured the commission of the alleged offence by Mr X, the accused expected that Mr X, if he destroyed the messages, would be doing so with the intention of preventing them from being used in evidence.

Key Takeaways

  • A charge of aiding, abetting, counselling, or procuring an offence under s 11.2(3)(a) of the Criminal Code Act 1995 (Cth) requires proof that the accused expected the principal offender would possess the fault elements of the underlying offence, not merely that the principal would perform the relevant physical act (at [20]).

  • The District Court held that the High Court's reasoning in Giorgianni v The Queen (1985) 156 CLR 473 remains good law and is consistent with the text of s 11.2(3)(a), notwithstanding that s 11.2(3)(b) introduced recklessness as a fault element not available at common law (at [13]-[14], [18]).

  • The phrase "including its fault elements" in s 11.2(3)(a) was construed according to its plain meaning as a reference to the mental states required for conviction, and was not read down to refer only to physical elements of the principal offence (at [8], [19]).

  • The Federal Court's reasoning in Citigroup was distinguished and read narrowly: it confirmed only that an accessory need not know the principal's conduct is technically unlawful, not that the fault elements of the underlying offence are irrelevant to accessorial liability (at [19]).

  • Both R v Spiteri-Ahern (No 11) and Blundell v The Queen, decisions that post-date the Criminal Code Act 1995 (Cth), applied the Giorgianni principle without suggesting the statute had displaced it, reinforcing its continuing authority (at [14]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth)
- Criminal Code Act 1995 (Cth)

Cases
- Blundell v The Queen [2019] NSWCCA 3
- Commonwealth Director of Public Prosecutions v Citigroup Global Markets Australia Pty Limited [2021] FCA 1345
- Giorgianni v The Queen (1985) 156 CLR 473
- R v Spiteri-Ahern (No 11) [2017] NSWSC 1820
- Thomas v. Lindop [1950] 1 All ER 966
- Yorke v Lucas (1985) 158 CLR 661