11.3 Innocent agency

Commonwealth Criminal Code: Guide for practitioners

11.3 Innocent agency

A person who:

  1. (a) has, in relation to each physical element of an offence, a fault element applicable to that physical element; and
  2. (b) procures conduct of another person that (whether or not together with 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 and is punishable accordingly.

Overview

The principle of innocent agency permits conviction of an offender who  uses another as their instrument to commit an offence. In the 19th century English case of Michael,315 a mother gave a vial of poison to her baby’s nurse, told her it was medicine and asked her to administer it to the baby. The mother intended the baby to die. The nurse did not comply with the request, but her five year old son found the vial and administered the fatal dose. In circumstances such as these, the principle of innocent agency imputes the act of the innocent child to the mother. Since the mother intended the death of her baby and the act of administration of the poison  by her unwitting agent is taken to be her own act, she is guilty of murder.  The principle also extends to include cases where the principal is excused from liability on grounds of insanity or the like.316 The principle is an adjunct to complicity, enabling conviction of an instigator in circumstances where the guilt of an individual who engaged in the proscribed conduct cannot be established.

The principle applies whether the conduct of the agent encompasses all or only some physical elements of an offence. If A induces an unwitting dupe  to take goods belonging to B from a storeroom and bring them to A, the conduct of the dupe is attributed to A. The same conclusion follows in circumstances where the unwilling agent is induced to collect the goods by threats. If A was dishonest, intending to deprive B of the goods without consent, the offence of theft is complete when the dupe collects the goods.  So also when a drug importer users the services of an unwitting carrier to bring a prohibited  drug  into  Australia.317  The offence is complete when  the carrier enters Australia with the prohibited drug.   In these instances,    the principle applies though nothing done by the offender matches the conduct elements required for guilt. If, on the other hand, A posts a fraudulent order for goods to B and sends the unwitting dupe to collect the goods, the offence of obtaining by deception is constituted by combining   A’s conduct in deceiving B with the conduct of the dupe, who obtained the goods.

The principle is formulated in terms which absolve a defendant from liability unless the conduct of the innocent agent “would have constituted an offence on the part of the procurer if the procurer had engaged in it”. Section 11.3 implicitly rejects the decision in Cogan & Leak,318 which held that a husband could be convicted of rape committed through the agency of an unwitting dupe though, at that date, a husband was immune from conviction for rape of his wife.319 Under the Code formulation of the innocent agency principle, attribution of the conduct of the dupe to the husband would not “constitute” the offence of rape. An example of more practical importance is provided by federal offences which can only be committed by Commonwealth public officials. In these, the principle of innocent agency does not permit conviction of a person who is not a Commonwealth official. Suppose, for example, a defendant compelled a Commonwealth official by threats amounting to duress to engage   in the conduct proscribed in the Code, Ch 7, s142.2 Abuse of public office. Though the conduct of the official can be attributed to the defendant, whose activities were actuated by the requisite dishonest intention to derive a benefit, liability does not follow.  If the defendant is not an official, an essential element  of the offence is missing.

Dictionary definitions of procuring, in the relevant sense, require a causal link between the act of the procurer and the conduct of the other person.320 That requirement of a causal link differentiates procuring from abetment, or the provision of aid or counsel. So, for example, a motor car passenger who plies the driver with alcoholic beverages, aids and abets the driver’s offence of driving under the influence. If the passenger administers the alcohol surreptitiously, however, in circumstances where the driver is unaware of their state of intoxication, the resulting offence is procured by the passenger.321

Australian caselaw is consistent with the suggestion that a causal link is required though the distinctions between procuring conduct and abetting, counselling or aiding conduct remain obscure.322

The principle is meant to merge seamlessly in its applications with s11.2 Complicity and common purpose.323 Though the name of the principle suggests that it can only apply when the agent is an innocent, the suggestion is misleading. Section 11.1 is not limited to cases involving innocent agents - the heading of the section is a convenient and familiar name for the principle which does not determine  its  applications.324  Viewed in this light, s11.3 is an extension of the law of complicity and, in particular, of s11.2(5), which declares that liability as an accomplice can be incurred even though “the principal offender has not been prosecuted or has not been found guilty”. That provision presupposes that proof of the guilt of the “principal offender” is a prerequisite for conviction of the accomplice, though the principal offender cannot be brought to justice. The principle of innocent agency dispenses with that presupposition, subject to one requirement: the defendant must be proved to have procured the conduct of the other as their agent: 11.3-C.

  1. (1840) 169 ER 48.

  2. Matusevich (1977) 137 CLR 633; Demerian [1989] VR 97.

  3. White v Ridley (1978) 140 CLR 342.

  4. [1976] 1 QB 217.

  5. Discussed JC Smith, “Aid, Abet, Counsel or Procure” in Reshaping the Criminal Law (edited P Glazebrook, 1978) 120, 134-135. The need to rely on the principle of innocent agency is outflanked, however, if rape is defined as an offence of causing sexual penetration of another without consent: see Hewitt (1996) 84 A Crim R 440; Hubble, “Rape by Innocent Agent” (1997) 21 Crim LJ 204.

  6. The Macquarie Dictionary adds to the causal definition of procuring, “especially [when the conse- quence is brought about] by unscrupulous or indirect means”.

  7. Attorney General’s Reference (No 1 of 1975) [1975] QB 773.

  8. See, in particular cases on related issues involving exclusionary rules of evidence when undercover police or their agents trick or trap suspects into criminal conduct: Ridgeway (1995) 184 CLR 19, 37 (The discretion to exclude evidence arises in circumstances where police engage in “conduct which intention- ally procures the commission of a criminal offence by another”). See in addition: O’Sullivan v Bastian (No2) [1948] SASR 17, 26, Ricev Tricouris (2000) 110 A Crim R 86 (Conduct of a vendor, who sells prohibited goods, is procured by the purchaser.) Compare JC Smith, “Aid, Abet, Counsel or Procure” in Reshaping the Criminal Law (edited P Glazebrook, 1978) 120, 135: “To sum up, it seems the law probably is that: (i) ‘procuring’ requires causation but not consensus; (ii) ‘abetting’ and ‘counselling’ require consen- sus but not causation; and (iii) ‘aiding’ requires actual assistance but neither consensus nor causation”.

  9. MCC, Ch 2: General Principles of Criminal Responsibility (1992 Final Report ) 93: The section overlaps with complicity”.

  10. Acts Interpretation Act 1901 (Cth), s13(3); headings to sections are not a part of the Act.