Citation: [2025] NSWCCA 103
Court: NSW Court of Criminal Appeal
Date: 11 July 2025
Judge(s): Leeming JA (Wright J and Rigg J concurring)
Background
Mr Ingram and Ms Carr were jointly charged on a single count of attempted possession of a commercial quantity of an unlawfully imported border controlled drug, contrary to s 307.5(1) read with s 11.1(1) of the Commonwealth Criminal Code. The Crown alleged that Mr Ingram was involved in arranging delivery of a package sent from Afghanistan that was intercepted by Australian Border Force officers and found to contain methamphetamine. Police replaced the drug with an inert substance and the package was delivered to an Australia Post outlet at Broadway. Mr Ingram allegedly asked Ms Carr to attend the post office to collect the package, which she did — and was arrested upon doing so.
The Crown's primary case was that both Mr Ingram and Ms Carr were guilty as principals, each having by their own conduct attempted to possess the drug. However, the Crown also sought to advance an alternative case against Mr Ingram: if the jury was not satisfied he was guilty based solely on his own conduct, the Crown would invite it to find him guilty on the basis that he had procured Ms Carr — as a "proxy" — to attempt to possess the package, engaging s 11.3 of the Code. That provision deems a person to have committed an offence where they possess the relevant fault elements and procure the conduct of another person that would have constituted the offence had the procurer engaged in it themselves.
The primary judge in the District Court ruled that the Crown could not rely on s 11.3. Her Honour held that the provision had no application where the proxy (Ms Carr) was charged as a principal, and that the Crown could not advance it as an alternative where it also alleged Mr Ingram was himself a principal. The Commonwealth Director of Public Prosecutions appealed that interlocutory ruling.
Legal Issues
- Whether s 11.3 of the Commonwealth Criminal Code ("commission by proxy") is confined to "innocent" proxies — that is, those who lack the requisite fault element or knowledge — or whether it applies regardless of the proxy's state of mind.
- Whether the Crown could rely on s 11.3 as an alternative basis for Mr Ingram's guilt where it also alleged he was guilty as a principal.
- Whether the Crown's reliance on s 11.3 required amendment to the indictment or the provision of further particulars.
- Whether the obiter dicta in Commonwealth Director of Public Prosecutions v Brady [2016] VSC 334, which suggested s 11.3 does not apply to proxies who possess the requisite intent, should be followed.
- Whether the former heading of s 11.3 — "Innocent agency" — warranted a reading of the provision that limited it to innocent proxies.
Decision
Leeming JA, with whom Wright J and Rigg J concurred, allowed the appeal on all grounds and set aside the District Court's ruling.
Section 11.3 is not limited to "innocent" proxies. The Court undertook a careful analysis of the text of s 11.3 and found nothing in its language that expressly restricts its operation to proxies who lack knowledge or mens rea. Leeming JA rejected the idea that the former heading "Innocent agency" — which was replaced by "Commission by proxy" in 2010 — could displace the clear language of the provision. His Honour examined the historical context of innocent agency at common law and the deliberate restructuring of complicity principles in the Commonwealth Criminal Code, concluding that it would be wrong to import common law limitations into a Code provision that did not reproduce them. The Brady dictum was expressly declined to be followed.
The Crown was entitled to advance alternative cases. The Court held that the Crown's prosecutorial discretion permitted it to allege both that Mr Ingram was guilty as a principal (by his own conduct) and, in the alternative, that he was guilty via s 11.3 as a procurer of Ms Carr's conduct. The alternative case would only be reached if the jury was not satisfied of Mr Ingram's guilt on the primary basis. There was nothing impermissible about pursuing these two pathways to guilt on the same indictment.
No amendment to the indictment was required. Applying established authority including Giorgianni v The Queen and King v The Queen, the Court confirmed that deeming provisions such as ss 11.2 and 11.3 do not need to be specifically pleaded in the indictment. What matters is whether the accused is fairly apprised of the nature of the Crown case, which is a question of substance. This can be achieved through the supply of particulars, whether in the indictment itself or provided separately. Here, the Crown had given adequate notice of its intended reliance on s 11.3.
Overlap with s 11.2 was not a reason to read down s 11.3. The Court acknowledged that there was some potential overlap between s 11.2 (aiding, abetting, counselling, or procuring) and s 11.3, but held that the avoidance of overlap was not a sufficient basis to imply an unexpressed limitation into the language of s 11.3. The two provisions serve different functions and may apply in different circumstances, and the restrictions attending s 11.2 (such as the requirement of joint intention) did not warrant reading down the broader language of s 11.3.
Orders Made
- The name of the appellant was amended from "Rex" to "Director of Public Prosecutions (Cth)."
- The appeal was allowed.
- The District Court's ruling precluding the Crown from relying on s 11.3 of the Commonwealth Criminal Code was set aside.
Key Takeaways
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Section 11.3 of the Commonwealth Criminal Code applies regardless of the proxy's state of mind. The Court of Criminal Appeal held that s 11.3 is not confined to cases of "innocent agency" in the traditional common law sense, and the provision is available whether or not the proxy possesses the requisite fault elements for the offence.
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Under s 11.3, the Crown may advance alternative bases of criminal liability on a single indictment. It is permissible for the prosecution to allege that an accused is guilty as a principal and, in the alternative, guilty via the deeming effect of s 11.3, provided the accused is fairly apprised of the case against them.
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The obiter suggestion in Brady that s 11.3 is confined to proxies lacking mens rea was rejected. Leeming JA (Wright J and Rigg J concurring) concluded that the Victorian Supreme Court's reasoning on this point was incorrect and that the provision is not so limited.
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Former legislative headings and marginal notes carry limited interpretive weight. While such headings may assist in resolving genuine ambiguity, they cannot displace clear statutory text. The former heading "Innocent agency" (replaced by "Commission by proxy" in 2010) did not restrict the scope of s 11.3.
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No indictment amendment is needed to invoke ss 11.2 or 11.3. Consistent with longstanding authority on complicity-based liability, the Court confirmed that fair notice through particulars is sufficient and that the Crown need not specifically plead these deeming provisions in the indictment.
Legislation and Cases Referenced
Legislation:
- Criminal Code Act 1995 (Cth), ss 11.1, 11.2, 11.2A, 11.3, 307.5
- Criminal Appeal Act 1912 (NSW), ss 5D, 5F
- Criminal Procedure Act 1986 (NSW), ss 20, 29, 139, 142, 162
- Judiciary Act 1903 (Cth), s 68
- Crimes Legislation Amendment (Serious and Organised Crime) Act 2010 (Cth)
- Acts Interpretation Act 1901 (Cth), ss 13, 15AA
Key Cases:
- Commonwealth Director of Public Prosecutions v Brady [2016] VSC 334; 346 FLR 1 (not followed)
- R v LK (2010) 241 CLR 177; [2010] HCA 17
- Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29
- King v The Queen (1986) 161 CLR 423; [1986] HCA 59
- Vallance v The Queen (1961) 108 CLR 56; [1961] HCA 42
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