R v Licciardello

This matter concerned an appeal against a conviction of grievous bodily harm. The question on appeal was whether the trial judge had misdirected the jury about the state of mind which has to be proved under s 7(1)(b) or 7(1)(c) of the Criminal Code where a person is deemed to commit the offence where he or she “does or omits to do any act for the purpose of enabling or aiding another person to commit the offence”. The question was whether the requisite knowledge of the accused extended to only the fact of the intention of the assaulter to commit the assault, or whether knowledge of the severity of the intended assault or its consequences was also needed. The Court of Appeal found the former to be the correct position.

Sofronoff P, McMurdo JA and Douglas J

22 November 2017

This matter concerned an appeal against the appellant’s conviction. The appellant was convicted under s 320(1) of the Criminal Code of unlawfully doing grievous bodily harm to a man who suffered a broken jaw after being punched and kicked multiple times by more than one person. [2]. The prosecution argued that the jury could convict the appellant by one of several routes: (i) because the appellant was the man who assaulted the complainant (s 7(1)(a)); (ii) if another person had caused the injury, because the appellant had been a party to that offence by doing an act for the purpose of aiding that person (s 7(1)(b)); or (iii) because the appellant had aided the other person to commit the offence (s 7(1)(c)). [3].

The sole ground of appeal was that the trial judge had inadequately directed the jury about the state of mind which had to be proved under s 7(1)(b) or s 7(1)(c) of the Criminal Code. [4]. Sections 7(1)(b) and 7(1)(c) provide that a person is deemed to have taken part in committing an offence and to be guilty of the offence if, under s 7(1)(b) the person “does or omits to do any act for the purpose of enabling or aiding another person to commit the offence”, or, under s 7(1)(c), the person “aids another person in committing the offence”.

The trial judge directed the jury, in accordance with the Benchbook, that the prosecution had to prove:

“[T]hat the defendant had actual knowledge or an expectation of the essential facts of that offence. That is, all the essential matters which make the acts done a crime …” [4].

The appellant argued that the direction was inadequate “because it left open to the jury to convict if satisfied that the appellant knew or expected simply an assault upon the complainant, regardless of what he knew or expected about the seriousness of that assault or its consequences”. [4]. The appellant said that the jury should have been told that the appellant knew or expected an assault involving the use of serious or significant force, before he could be found guilty in reliance upon s 7(1)(b) or s 7(1)(c). [14].

McMurdo JA (with whom Sofronoff P and Douglas J agreed) noted that under s 320(1) of the Criminal Code an intention to cause grievous bodily harm is not expressly declared to be an element of a crime under s 320. Accordingly, “the offender’s intention is immaterial”. [17]. However, s 7(1)(b) “expressly requires proof of a certain purpose of the defendant” and for s 7(1)(c), as McMurdo JA noted, “it is hardly possible to aid the commission of an offence without an awareness of that offence which is being (or might be) committed”. [19].

McMurdo JA said that it could be seen that the direction in the Benchbook has a firm basis in the authorities. [22]. As for the appellant’s argument that it was “incomplete by not explaining what was meant by ‘the essential facts’ of the offence”, McMurdo JA said: 

“To be criminally responsible under s 7(1)(b) or s 7(1)(c), a person must know of the offence which is being, or which is about to be, committed by the person he is aiding or intending to aid. That offence is constituted by the conduct (an act or omission) of the other person which attracts criminal liability. If the principal offender’s crime requires a specific intent, then s 7(1)(b) or s 7(1)(c) requires the aider to know that he is aiding the other to act (or omit to act) with that intent. But if ‘the offence’ has no ingredient of an intent (or other state of mind) on the part of the person who does the act or makes the omission, all that the aider need know is that the conduct constituting the offence is occurring or will occur. Of course, what was not foreseen or foreseeable as a consequence might be relevant, in a certain case, for the purposes of s 23 of the Code. But s 23 was not said to be relevant here.” [30].

In the present case, therefore, “all that the appellant had to know was that the complainant was being or was about to be assaulted”. [31]. It was not necessary for the prosecution to go further and prove that the appellant believed that the assault would be of a certain severity or that it would have any particular result. [31].

The appeal was dismissed. [33].

J English