alleged to be based on complicity in murder, that is to say, that he aided, abetted, counselled or procured Person 4 to commit the offence (see s 11.2 of the Criminal Code Act 1995 (Cth) (the Criminal Code)). Secondly, it is clear from the Particulars that the respondents do not invoke or engage the type of command criminal responsibility identified in s 268.115 of the Criminal Code. Thirdly, in order for the applicant to be criminally responsible as an aider or abetter, he must have provided intentional assistance or encouragement to the principal offender. The Particulars do not identify any intentional assistance or encouragement by the applicant because all he is alleged to have done is not say anything or do anything to encourage Person 5 to withdraw the order or to stop Person 4 following the order (Particular (46)). The applicant submits that that "conduct" is not sufficient to bring his conduct within s 11.2 of the Criminal Code. Furthermore, insofar as the Particulars might be taken to suggest an agreement between the applicant and Person 5 to aid, abet, counsel or procure murder (see Particular (43) referring to statements about the need to "blood the rookie"), there was no liability for a joint criminal enterprise until after 20 February 2010 when s 11.2A was introduced into the Criminal Code and the relevant events at W108 are said to have occurred on 12 April 2009.
217 The words, "aids, abets, counsels or procures" in s 11.2 are not defined in the Criminal Code. They are to be given their established legal meaning (Handlen v The Queen [2011] HCA 51; (2011) 245 CLR 282 at [6]). The applicant submits that that established legal meaning involves some form of assistance or encouragement.
218 The applicant's submission seems to be that the pleading is insufficient in law. In the ordinary case, that would have been a matter raised before the trial. In any event, even on the Particulars, the position concerning criminal responsibility by reason of s 11.2 of the Criminal Code is not as clear as the applicant submits. It should be noted that the matter was not the subject of detailed submissions from the parties and, in particular, the applicant. I note from a perusal of the commentary on s 11.2 in Watson and Watson, Australian Criminal Law: Federal Offences (Thomson Reuters, subscription service) at [CC.11.2.40] (update 224) that under the traditional common law approach, much depends on the circumstances and minor encouragement and simply standing by may be sufficient.
219 As will become clear, the case presented by the respondents in terms of evidence and submissions undoubtedly involves complicity by the applicant within s 11.2 of the Criminal Code. If that case is established and if it does not involve an impermissible departure from the Particulars, then the first argument does not, in fact, arise.
