Director of Public Prosecutions (Cth) v Ingram [2025] NSWCCA 103

Director of Public Prosecutions (Cth) v Ingram [2025] NSWCCA 103 · Read the judgment on AustLII

Catchwords: Commonwealth criminal law – complicity and commission by proxy – innocent agents – requirements for particulars

In this decision the CCA has said that a person procured by the accused need not be ‘innocent’ before the principal can be found guilty of procuring them to commit the offence. The Court also examined the obligations of the Crown to provide particulars more generally for indictments.

The respondent (this was a Crown interlocutory appeal) is charged with attempted possession of an unlawfully imported commercial quantity of a border-controlled drug. He was in a relationship with his co-accused (the further co-accused was her sister). He allegedly asked the co-accused and her sister to go to a post office to collect a package which had arrived from Afghanistan. The curtains and sheets it contained concealed drugs amounting to 1,733g of pure methamphetamine. The Crown sought to put its case against the applicant on two alternative bases: either he was guilty as a principal; or else he was guilty on the basis that he procured someone else to commit the offence.

Section 11.3 of the Commonwealth Criminal Code provides that a person who:

(a) has, in relation to each physical element of an offence, a fault element applicable to that physical element; and

(b) procures conduct of another person (whether or not together with the conduct of the procurer) would have constituted an offence on the part of the procurer if the procurer had engaged in it;

is taken to have committed that offence.

The complicating factor here was that the Crown was also putting its case against the co-accused on the basis that she knew what she was doing. Section 11.3 had previously had a title ‘innocent agents’, and the applicant argued that it couldn’t be relied upon by the Crown if the proxy was not, in fact ‘innocent’. Putting that another way, the question posed was: could the applicant be guilty of procuring someone else to commit the offence under s 11.3 even if that other person wasn’t guilty? And is it permissible for the Crown to run inconsistent cases against co-accused, arguing that both are principals and that one procured the other under s 11.3?

At first instance the trial judge had ruled that the Crown’s proposed course was impermissible; the Crown lodged an interlocutory appeal.

The Court (Leeming JA, with whom Wright and Rigg JJ agreed) allowed the appeal. Nothing in the text of s 11.3 expressly restricts its application to proxies with any particular absence of knowledge. The only question posed by s 11.3 is whether the proxy’s conduct was procured by the person charged (at [95]). This is consistent with the original explanatory memorandum, and is entirely rational since otherwise an offender could manufacture a defence simply by the device of having someone else commit the offence (at [96]-[97]). Restricting the section by reference to the state of mind of the proxy would result in awkward results (at [98]). There is no sound basis upon which to conclude that the original heading should be used to cut back the language of s 11.3 (at [128]). Interstate appellate authority on the issue included dicta limiting s 11.3 to cases where the proxy lacked the relevant intention – but that authority should not be followed (at [138]-[139], [172]).

As for the Crown running alternative bases, the Court here held that there was no unfairness. The jury might not be persuaded that all aspects of the Crown case are made out, and it is open to the Crown to advance a case in the alternative based on s 11.3. This is not greatly different from the ordinary situation where the Crown prosecutes on the basis that an accused person is guilty as a principal, or alternatively as an accessory who has counselled or procured the commission of the offence, which has been permitted for centuries (at [90]). That said, it is necessary for the Crown to act fairly, and that might involve giving notice of the alternative ways in which it invites a finding of guilt. In this connection, Crown correspondence which was expressed in the form of the Crown ‘reserving its rights’ was described as being far from best practice because it does not greatly assist those accused persons to understand how the Crown intends to proceed (at [91]). Whilst it is preferable to particularise its reliance on deeming provisions like s 11.3, that does not necessarily mean that the particulars must be provided in the indictment (at [72]-[75]). The real question is not so much the form of the indictment, but whether the accused is being treated fairly. What ultimately matters is whether the accused is fairly apprised of the nature of the Crown case, which is determined as a matter of substance rather than form, and can be done by the supply of particulars, either contained in the indictment or provided later (at [77]-[78]).