Giorgianni v R [1985] HCA 29; (1985) 156 CLR 473 (18 April 1985)

HIGH COURT OF AUSTRALIA

GUISEPPE GIORGIANNI v. THE QUEEN [1985] HCA 29; (1985) 156 CLR 473

Criminal Law

High Court of Australia

Gibbs C.J.(1), Mason(2), Wilson(3), Deane(3) and Dawson(3) JJ.

CATCHWORDS

Criminal Law - Parties - Culpable driving causing death - Whether person aiding, abetting, counselling or procuring person to drive dangerously guilty of substantive offence - Knowledge of essential facts constituting offence - Wilful blindness - Whether negligence or recklessness sufficient - Crimes Act 1900 (N.S.W.), ss. 52A, 351.

HEARING

1984, December 5; 1985, April 18. 18:4:1985

APPLICATION for special leave to appeal from the Supreme Court of New South Wales.

DECISION

GIBBS C.J. This is an application for special leave to appeal from a decision of the Supreme Court of New South Wales constituted as the Court of Criminal Appeal dismissing the applicant's appeal from his conviction on five charges of culpable driving causing death and one charge of culpable driving causing grievous bodily harm. The charges arose out of an incident that occurred on 18 May 1979 when a truck heavily laden with coal got out of control while descending a steep incline at Mount Ousley and collided with other vehicles, causing the deaths of five persons and serious injury to another. The truck was driven by one Renshaw, an employee of the applicant Giorgianni. The brakes of the coal truck failed as it was making the descent and as it continued down the road at an increasing speed one Fraser, the driver of a Volvo truck, deliberately placed his vehicle in its path in an attempt to stop its progress. The two vehicles collided, but the effect of the collision was to damage the steering of the coal truck, which then careered quite out of control into other cars, some of whose passengers were killed or injured. The applicant was charged under s.52A of the Crimes Act 1900 (N.S.W.), as amended ("the Crimes Act"). The Crown case was that the brakes of the coal truck were dangerously defective and that Renshaw, by driving it in that condition, was driving in a manner dangerous to the public. It was not suggested that the applicant was present when Renshaw drove the truck; what was contended on behalf of the Crown was that the applicant procured Renshaw to drive the truck in its defective condition. The applicant was charged by virtue of s.351 of the Crimes Act, which provides as follows:



"Any person who aids, abets, counsels, or procures,

the commission of any misdemeanour, whether the

same is a misdemeanour at Common Law or by any

statute, may be indicted, convicted, and punished

as a principal offender."



2. There was evidence from which it appears that the last occasion on which the applicant had inspected the truck before the accident was during the weekend of 5-6 May 1979 when, together with Renshaw and one Fitzpatrick, he did some work on the vehicle. According to the evidence of Fitzpatrick and the applicant's statement to the jury, the condition of the brakes then appeared satisfactory, but it was open to the jury to infer, from police evidence which detailed the many defects that were apparent in the brakes after the accident, that a person who had worked on the vehicle a fortnight before would, or at least should, have noticed those defects. Amongst other things, one brake shoe was tied by wire to a U-bolt in an effort to retain it to the brake drum and that brake would have been completely ineffective. The applicant, in his statement, said that he had not noticed the wire. Renshaw gave evidence that after 6 May he drove the truck on about fifty occasions between a coal mine at Appin and the harbour at Port Kembla. He said that it was his practice to notify the applicant when he noticed any fault in the vehicle and that on 18 May he in fact noticed a leaking oil seal and rang the applicant to inform him of it. The evidence does not make it clear what was the applicant's response or what was the significance of that incident. Renshaw said that he did not notice anything wrong with the brakes until he was travelling on the fatal journey on 18 May.

3. The learned trial judge in the course of his summing up described as follows the nature of the contentions put on behalf of the Crown:

"The Crown alleges - it must prove beyond

reasonable doubt - that the brakes were defective,

that the defective brakes constituted a danger to

the public on the Mount Ousley road on a Friday

afternoon, that the impact ... was caused while

driving in a manner dangerous to the public with

defective brakes, that the accused knew or ought to

have known of the defect by the exercise of his

reasonable care and diligence, that the accused

knew or ought to have known by the exercise of

reasonable care and diligence of the danger thereby

to the public, and that the accused either ignored

it or knowingly took such negligent measures to

cope with it to make his conduct in employing the

driver so to drive driving in a manner dangerous to

the public."

Later he said that "it is further put that Giorgianni either had knowledge or imputed knowledge of those circumstances ...". Towards the end of his summing up, after he had dealt with the facts, he directed the jury on this aspect of the matter as follows:

"Of course, in this case the manner of driving the

vehicle dangerous to the public involved the

vehicle being driven in circumstances fully laden

down the mountain with a defective braking system,

which the prosecution has to establish he had

knowledge of or imputed knowledge that could be

ascertained with the exercise of reasonable care

and diligence ...".

After hearing some submissions from counsel in the absence of the jury, the learned trial judge gave the jury a further direction. He said that the statement "that the accused knew or ought to have known with the exercise of reasonable care and diligence that the truck on 18th May, 1979, had defective brakes, that the driving of it in that condition would constitute driving it in a manner dangerous to the public" should be qualified. He said that "a mere failure to make an inquiry which would yield knowledge of an essential fact is not in itself sufficient, for to act negligently does not make a person an aider or abetter". He concluded by saying (and repeating) that the prosecution must show that the applicant "knew when he procured the use of the vehicle by Renshaw on 18th May the brakes were defective and could fail and could constitute driving in a manner dangerous to the public or he acted recklessly not caring whether these facts existed or not".

4. In these circumstances two questions of principle arise for our decision. The first is whether a person who has aided, abetted, counselled or procured another person to drive in a manner dangerous to the public may, if death or grievous bodily harm has been occasioned, be properly convicted of an offence against s.52A of the Crimes Act. That question must in my opinion be answered in the affirmative. It is true that the application of provisions such as those of s.351 of the Crimes Act "may be excluded by the nature of the substantive offence or the general tenor or policy of the provisions by which it is created": Mallan v. Lee [1949] HCA 48; (1949) 80 CLR 198, at p 216. There is however nothing in the nature of the offence created by s.52A, or in the provisions of that section, which reveals any intention to exclude the ordinary rules governing the liability of a secondary party, as a person who has aided, abetted, counselled or procured the commission of a crime is now called. The section, so far as it is relevant, provides as follows:

"(1) Where the death of, or grievous bodily harm

to, any person is occasioned through -

...

(d) the impact of a motor vehicle with any

vehicle or other object in, on or near

which that person was at the time of the

impact,

and the motor vehicle was at the time of the impact

... being driven by another person -

(e) under the influence of intoxicating

liquor or a drug; or

(f) at a speed or in a manner dangerous to

the public,

the person who was so driving the motor vehicle

shall be guilty of the misdemeanour of culpable

driving.

...

(3) It shall be a defence to any charge under this

section that the death or the grievous bodily harm

occasioned, as the case may be, was not in any way

attributable to the fact that the person charged

was under the influence of intoxicating liquor or

of a drug or, as the case may be, to the speed at

which or the manner in which the vehicle was

driven."

There is no reason why a person who counsels or procures another to drive a vehicle, knowing that the person persuaded to drive the vehicle is drunk, or that the vehicle is so defective as to be dangerous, should not be liable, in accordance with the ordinary principles embodied in s.351 of the Crimes Act, if the vehicle is involved in a collision causing death. This view is supported by Reg. v. Robert Millar Ltd. (1970) 2 QB 54, where it was held that an employer who instructed an employee to drive a vehicle, knowing it to be in a dangerously defective condition, was guilty of the offence of dangerous driving causing death. That decision is consistent with other authorities. It has been held that the owner of a car who, travelling as a passenger, allowed the driver to drive at a speed which he knew to be dangerous could properly be convicted of the offence of driving at a speed dangerous to the public (Du Cros v. Lambourne (1907) 1 KB 40) and that the supervisor of a learner driver may be convicted of aiding and abetting the learner driver in the commission of the offence of driving without due care and attention (Rubie v. Faulkner (1940) 1 KB 571) or of the offence of driving with alcohol in his blood exceeding the prescribed limit (Carter v. Richardson (1974) RTR 314; mentioned (1975) C.L.J. 182). Counsel for the applicant sought to find an indication of a contrary intention in sub-s.(1) of s.52A, which states that "the person who was so driving the motor vehicle shall be guilty of the misdemeanour", and in sub-s.(3), which refers to "the fact that the person charged was under the influence of intoxicating liquor or of a drug". However, those forms of words do not indicate that it is only the actual perpetrator of the offence who may be charged under the section. Many statutory provisions which create misdemeanours refer only to the person who directly engages in the forbidden conduct, yet the ordinary rule which makes any person who aided, abetted, counselled or procured the commission of the misdemeanour liable to be convicted and punished as a principal offender nevertheless applies. When a person is charged as a secondary party with an offence against s.52A(1)(f), the prosecution has to prove that the accused aided, abetted, counselled or procured another person to drive the vehicle at a speed or in a manner dangerous to the public, but not that he aided, abetted, counselled or procured the driver to occasion the death or grievous bodily harm which must have been occasioned if the offence was committed. There can be no doubt in the present case that the applicant was rightly convicted if the evidence was such that a reasonable jury could have been satisfied that he had counselled or procured his employee to drive a truck which he knew to be dangerously defective. The questions whether the intervention of Fraser and the collision with his Volvo truck meant that thereafter the coal truck was not "being driven" by Renshaw, or that the deaths and grievous bodily harm were not occasioned by dangerous driving, were matters of fact for the jury.

5. The second question that arises is whether a person may be convicted of an offence against s.52A of the Crimes Act, on the footing that he aided, abetted, counselled or procured the commission of that offence, if it is not proved that he knew all the circumstances which made what was done an offence. In other words, is it necessary to prove that the person sought to be made liable as a secondary party had knowledge of all essential facts, or is it enough to prove that he should have had knowledge of those facts or that he acted recklessly not caring whether those facts existed or not?

6. Section 52A prescribes an objective standard and, speaking generally, the reference to a motor vehicle being driven "at a speed or in a manner dangerous to the public" refers to the actual behaviour of the driver and does not require any given state of mind as an essential element of the offence: R v. Coventry [1938] HCA 31; (1938) 59 CLR 633, at pp 637-638. That does not mean that a person can aid, abet, counsel or procure the commission of an offence of strict liability without having an intention to do so formed in the light of knowledge of the facts. The very words used in s.351, and the synonyms which express their meanings - e.g. help, encourage, advise, persuade, induce, bring about by effort - indicate that a particular state of mind is essential before a person can become liable as a secondary party for the commission of an offence, even if the offence is one of strict liability. In United States v. Peoni (1938) 100 F 2d. 401, at p 402, Judge Learned Hand referred to various statutory and common law definitions of "accessories", by which he meant secondary parties, and, in a passage cited by Bright J. in Lenzi v. Miller (1965) SASR 1, at p 15, went on to say:

"It will be observed that all these definitions

have nothing whatever to do with the probability

that the forbidden result would follow upon the

accessory's conduct; and that they all demand that

he in some sort associate himself with the venture,

that he participate in it as in something that he

wishes to bring about, that he seek by his action

to make it succeed. All the words used - even the

most colourless 'abet' - carry an implication of

purposive attitude towards it."

In other words, the person charged as a secondary party should in some way be "linked in purpose with the person actually committing the crime ...": R v. Russell [1933] VicLawRp 7; (1933) VLR 59, at p 67, per Cussen ACJ.

7. Section 351 of the Crimes Act is based on s.8 of the Accessories and Abettors Act, 1861 (U.K.), which, it has often been said, was only declaratory of the common law on the subject: Du Cros v. Lambourne, at p 44; Reg. v. Maxwell (1978) 1 WLR 1350, at p 1359; (1978) 3 All ER 1140, at p 1148. Although it was said, in Attorney-General's Reference (No. 1 of 1975) [1975] EWCA Crim 1; (1975) Q.B. 773, at p.779, that there is a difference between the four words (aids, abets, counsels, procures) used in the section, and that each word must be given its ordinary meaning, it is apparent that the ordinary meanings of some at least of those words overlap and that sometimes the words are used in particular combinations or as a phrase which is to be considered as a whole: In re Charles Smith (1858) 3 H & N 227, at pp 237-238 [1858] EngR 533; (157 ER 455, at p 459); A-G v. Able (1983) 3 WLR 845, at p 855; (1984) 1 All ER 277, at p 285. When used in relation to felonies, the words "aid and abet" described the action of a person who was present at the commission of the offence and took some part therein (who was called a principal in the second degree as well as an "aider and abettor"), whereas "counsel and procure" described an accessory before the fact who was not present at the commission of the offence: cf. Ferguson v. Weaving (1951) 1 KB 814, at pp 818-819. The usage was not always uniform or discriminating. The distinction between principals in the first and second degree and between principals and accessories now generally has no legal importance: see Johns (T.S.) v. The Queen [1980] HCA 3; (1980) 143 CLR 108, at p 117 and ss.345-347 of the Crimes Act. No similar distinction was drawn in the case of misdemeanours, and at common law, in cases of misdemeanour, anyone who, in the case of a felony, would have been a principal in the second degree, or an accessory, was a principal offender and was treated as if he had taken the same part as the active perpetrator of the facts constituting the offence: Gould & Co. v. Houghton (1921) 1 KB 509, at p 516. The reason for mentioning those matters, which are now largely of historical interest, is that statements in the authorities regarding the mental state necessary to constitute a person an accessory before the fact in the case of a felony will apply equally to a person who has counselled or procured the commission of a misdemeanour. Further it will be found that statements which refer to the knowledge and intention necessary to make a person an aider and abettor will often be equally applicable to a person who has counselled or procured the commission of the offence.

8. Russell on Crime 12th ed. (1964), p.151, states that "the bare minimum" which is necessary to constitute a person an accessory before the fact is that his conduct should indicate "(a) that he knew that the particular deed was contemplated, and (b) that he approved of or assented to it, and (c) that his attitude in respect of it in fact encouraged the principal offender to perform the deed". The passage is cited with approval in A-G v. Able, at p 855; p 285 of All ER There is a strong body of authority which supports the view that knowledge of the facts is necessary before a person can be made liable as a secondary party for the commission of an offence. In Johnson v. Youden (1950) 1 KB 544, Lord Goddard C.J. stated the position in relation to aiders and abettors as follows, at p.546:

"Before a person can be convicted of aiding and

abetting the commission of an offence he must at

least know the essential matters which constitute

that offence. He need not actually know that an

offence has been committed, because he may not know

that the facts constitute an offence and ignorance

of the law is not a defence."

This statement has been frequently cited with approval, and not only in relation to the case of aiders and abettors. In Reg. v. Churchill (1967) 2 AC 224, at p 236, it was held that the law is the same for conspiracy. In Reg. v. Bainbridge (1960) 1 QB 129, the case of an accessory before the fact, Lord Parker C.J. said, at p 134, that "there must be not merely suspicion but knowledge that a crime of the type in question was intended ...". (We are not concerned in the present case with the question whether knowledge of an intention to commit the type of offence is enough.) In Reg. v. Maxwell, at p 1357; p 1146 of All ER, Lord Hailsham of St. Marylebone was content to adopt the passages which I have cited from Johnson v. Youden and Reg. v. Bainbridge as sufficiently answering the question what degree of knowledge is required before an accused can be found guilty of aiding, abetting, counselling or procuring. In Reg. v. Robert Millar Ltd., a case similar to the present, it was said, at p 72, that "if a driver is sent out by his employer to drive a heavy vehicle on a trip extending over some hundreds of miles carrying heavy loads with a dangerously defective front offside tyre, by an employer who knows that the tyre is dangerous, and there is a serious risk of harm resulting to other road-users, then if that tyre does burst and thereby causes an accident killing somebody the employer is guilty of counselling and procuring death by dangerous driving ...". Numerous other cases, including, in Australia, Blackmore v. Linton [1961] VicRp 63; (1961) VR 374, at p 377 and Wilson v. Dobra (1955) 57 WALR 95, at p 97 (a case under the Criminal Code of Western Australia), accept that the general principle is that a person can be convicted as a secondary party only if he had knowledge of the essential circumstances. Further, as has already been indicated, the person charged must have intended to help, encourage or induce the principal offender to bring about the forbidden result. In other words, both knowledge of the circumstances and intention to aid, abet, counsel or procure are necessary to render a person liable as a secondary party: cf. National Coal Board v. Gamble (1959) 1 QB 11, at p 20.

9. However, some cases suggest that some qualifications should be admitted to the general principle that a person cannot be found guilty of having aided, abetted, counselled or procured an offence unless he had actual knowledge of all the essential matters which made the act done a crime. One qualification that must be accepted is that wilful blindness, the deliberate shutting of one's eyes to what is going on, is equivalent to knowledge. In R. v. Antonelli and Barberi (1905) 70 JP 4, where A was indicted for publishing a criminal libel, and B, who had sold copies of the pamphlet containing the libel, was charged with aiding and abetting him, Phillimore J., in summing up to the jury, said, at p.6:

"If you think he knew what was in the document, or

deliberately shut his eyes to what was in it, then

you must find him guilty of aiding and abetting."

Lord Devlin has said that a person who has shut his eyes to an obvious means of knowledge may be described as having "knowledge of the second degree": see Roper v. Taylor's Central Garages (Exeter), Limited (1951) 2 TLR 284, at p 288. The relevant principle was recently explained by this Court in Reg. v. Crabbe (26 March 1985, unreported):

"When a person deliberately refrains from making

inquiries because he prefers not to have the

result, when he wilfully shuts his eyes for fear

that he may learn the truth, he may for some

purposes be treated as having the knowledge which

he deliberately abstained from acquiring."

10. In Davies, Turner & Co. Ltd. v. Brodie (1954) 1 WLR 1364, at p 1367; cf. (1954) 3 All ER 283, at p 286, Lord Goddard C.J., after repeating what he had said in Johnson v. Youden, continued:

"If a person shuts his eyes to the obvious or

refrains from making any inquiry where a reasonably

sensible man would make inquiry, I think the court

can find that he was aiding and abetting, certainly

if he shuts his eyes to the obvious."

With all respect this dictum was too wide, as indeed Lord Goddard himself may have recognized by the concluding words of the sentence quoted; those words are omitted from the report in the All England series, but the word "perhaps" is inserted. As Lord Devlin pointed out in Roper v. Taylor's Central Garages (Exeter), Limited, at p 289:

"There is a vast distinction between a state of

mind which consists of deliberately refraining from

making inquiries, the result of which the person

does not care to have, and a state of mind which is

merely neglecting to make such inquiries as a

reasonable and prudent person would make."

The failure to make such inquiries as a reasonable person would have made is not equivalent to knowledge; it is not enough to render a person liable as a secondary party that he ought to have known all the facts and would have done so if he had acted with reasonable care and diligence. That is so even when the offence is one of strict liability, so that the actual perpetrator may be convicted in the absence of knowledge.

11. That this is so is shown by Callow v. Tillstone (1900) 83 LT 411. In that case a butcher was convicted of exposing unsound meat for sale. He had relied on a certificate given by a veterinary surgeon that the meat was sound and healthy. The veterinary surgeon had been guilty of negligence in examining the carcase and giving the certificate. It was held that the fact that he had been negligent, and that the negligence had caused the exposure of the unsound meat for sale, was not sufficient to justify his conviction for aiding and abetting the exposing of the unsound meat for sale. (Perhaps he should more properly have been charged with counselling or procuring the commission of the offence, but the decision did not turn on that point.) Similarly, in Bowker v. Woodroffe. Bowker v. Premier Drug Co. (1928) 1 KB 217, a wholesale firm was charged with aiding and abetting a retailer in committing the offence of selling to the prejudice of the purchaser an article of food not of the nature, substance and quality demanded. Although the retailer was convicted the wholesaler was held entitled to be acquitted, for a number of reasons, one of which was that there was no evidence to show that the wholesaler knew at any material time that the article sold was not what it purported to be: see at p.229.

12. One case which is out of line with these authorities, and which has unfortunately had some influence on two Australian cases, is Carter v. Mace (1949) 2 All ER 714. In that case the appellant, who carried on the business of a transport clearing house, arranged with the owner of a lorry to transport certain goods but did not inquire whether the owner of the lorry was licensed to carry those goods. The appellant was convicted of aiding and abetting the lorry driver in the commission of the offence, notwithstanding that he did not know that the lorry driver did not have the necessary licence and did not deliberately refrain from making inquiries for fear that he might learn the truth. The judgment of the Divisional Court suggests that the appellant was under a duty to see that the contracts that he made were carried out in a legal manner. If the case was correctly decided, it might provide authority for the view that a person can be found guilty of aiding, abetting, counselling or procuring if he failed to make reasonable inquiries. However, in Davies, Turner & Co. Ltd. v. Brodie it was said (at p 1367; p 286 of All ER) that Carter v. Mace was decided on its own particular facts, and in a later case, Smith v. Jenner (1968) Crim.LR 99, the opposite conclusion was reached on rather similar facts. There a driving instructor supervised the driving of a learner whose provisional licence had expired, although he was not aware of that fact. The instructor was convicted of aiding and abetting the learner to drive a car without a licence. A Divisional Court which allowed his appeal held that aiding and abetting involved knowledge of the facts. Carter v. Mace cannot be regarded as an authority for the proposition that a person may be liable as a secondary party simply because he fails to make such inquiries as a reasonable man would have made.

13. It is necessary to refer to two other lines of cases, which may cause confusion unless it is recognized that they are not concerned with the liability of persons who have aided, abetted, counselled or procured the commission of a crime. First, there are cases in which the court has considered the effect of statutes which make it an offence to permit a particular state of things, e.g. to permit any person not being the holder of a licence to drive a motor vehicle, or to permit a person to use a vehicle which is uninsured. It has been held that knowledge is not an ingredient of such offences, although honest and reasonable mistake of fact will exculpate the accused: see, e.g., Proudman v. Dayman [1941] HCA 28; (1941) 67 CLR 536; cf. Bateman v. Evans (1964) 108 Sol Jo 522. A second class of case is that in which the statute in question casts an absolute duty upon a principal who is accordingly made responsible for the acts of his servants. Quality Dairies (York) Ltd. v. Pedley (1952) 1 KB 275 is such a case. Decisions that fall within either of those classes have no bearing on the present question. Cases such as Provincial Motor Cab Company, Limited v. Dunning (1909) 2 KB 599 and Gough v. Rees (1929) 142 LT 424, in which the accused, although not made vicariously responsible by statute, was held liable for aiding, abetting, counselling or procuring an offence committed by his servant on the ground that the servant was under his control and he failed to take precautions to prevent the commission of the offence, can only be explained on the basis that the accused knew what would happen if the precautions were not taken: see Lord Hewart C.J. in Gough v. Rees, at p 426. The true principle was applied in Ferguson v. Weaving, where the employees of a licensee, who had the conduct and maintenance of a room in the licensee's premises, allowed customers to consume liquor there after hours. It was held that the licensee, who was unaware of what was happening, could not be convicted of counselling and procuring the offence committed by the customers; the knowledge of the employees could not be imputed to the licensee: see at p.821.

14. In Lenzi v. Miller the Full Court of the Supreme Court of South Australia held that on a charge of having aided, abetted, counselled and procured the commission of an offence, namely the driving of a motor vehicle on a road without there being in force a policy of insurance in relation to the vehicle, it was not necessary for the prosecution to prove that the accused, on whose instructions or with whose permission the vehicle was driven, knew that the vehicle was uninsured. It was said, at p.12, that authorities such as Carter v. Mace and Quality Dairies (York) Ltd. v. Pedley show an Act may be couched in such terms as to imply a duty to foresee and prevent the act or thing that is the offence and that in such circumstances any party, who could and should prevent the act or thing, but omits to do so, is a party to and participates in the offence. The reliance on those authorities was misplaced; Carter v. Mace lays down no acceptable principle and Quality Dairies (York) Ltd. v. Pedley does not deal with the position of aiders, abettors, counsellors and procurers. In Lenzi v. Miller at first instance Chamberlain J., at p 7, said that the cases "support the proposition that the accessory depends on terms of the statute creating the original offence, and that none of them supports the appellant's claim that in order to convict an accessory of an absolute offence it is necessary to prove the case as if mens rea were a necessary element". This passage was cited with approval by Walters A.J. in Kurucz v. Mayne (1966) SASR 82. However it is erroneous. Both those decisions may be supported on their facts, but not for all the reasons given by the court.

15. In Reg. v. Glennan (1970) 91 WN(NSW) 609 the Court of Appeal of New South Wales discussed the question whether a conviction for aiding, abetting, counselling and procuring the commission of an offence of driving with more than the prescribed quantity of alcohol present in the blood could be sustained when it had been found that the accused did not and could not know the concentration of alcohol in the driver's blood. It was rightly held that the accused could be convicted of aiding and abetting, because it was established that the accused was aware of all the circumstances that gave rise to the driver's offence, and in particular how much alcohol the driver had consumed. The judgment however contains some observations which with all respect cannot be supported. Their Honours said at p.614:

"It may, therefore, be concluded that, in the

case of statutory offences in which intention is

not a necessary element, the law does not require

actual knowledge on the part of the aider and

abettor of all the essential facts of the offence.

The element of knowledge or intention required of

an aider and abettor might perhaps be more

accurately expressed by saying that it must be

shown that he either knew or suspected the

existence of facts which would constitute the

commission of the offence or, perhaps, that he

acted recklessly, not caring whether the facts

existed or not. Mere failure to make an inquiry

which, if made, would yield knowledge of an

essential fact, is not in itself enough to

constitute knowledge of the fact, for it is

accepted that to act negligently does not make a

person an aider and abettor (Callow v. Tillstone;

Bowker v. Premier Drug Co.). But the circumstances

of a given case may be such as to reveal not merely

a failure to make an inquiry, but a failure to make

an inquiry which is of such a kind as to suggest

that the defendant has deliberately abstained from

acquiring knowledge because he suspected the

existence of a fact which would have been

ascertained on inquiry, or that the defendant has

acted recklessly in the sense that he did not care

whether the facts existed or not (Carter v. Mace;

cf. Davies, Turner & Co. Ltd. v. Brodie)."

Suspicion of the existence of facts, although relevant when the accused has deliberately shut his eyes, does not by itself amount to or take the place of knowledge for present purposes. Further it is not correct to say that a person may be convicted of aiding, abetting, counselling or procuring the commission of an offence simply because he has acted recklessly. Dr Edwards, in Mens Rea in Statutory Offences (1955), pp.196-205, asserts that a person who deliberately closes his eyes to what is going on connives at it and that there is a close analogy between connivance and recklessness. However connivance, or wilful blindness, is only relevant to the liability of a secondary party to an offence because it virtually amounts to knowledge. Recklessness, in the sense of not caring whether the facts exist or not, would be relevant only if it too was virtually equivalent to knowledge, in other words only if it amounted to wilful blindness.

16. It is true that there are some remarks in the judgments of the members of the Divisional Court in Carter v. Richardson, at pp 317, 318, which suggest that it is enough that an aider and abettor was reckless as to whether the principal offender had consumed an excessive amount of alcohol before driving a motor vehicle. However the ratio of that case was expressed in the following words, at p.318:

"The justices were right if they took the view that

it was sufficient if the defendant was aware that

the principal offender had consumed excessive

alcohol even though the precise amount had not been

determined."

It can never be right to direct a jury that recklessness is enough to constitute a person an aider, abettor, counsellor or procurer. Indeed in many, if not most, cases it will be unnecessary to introduce the subject of wilful blindness into a summing up and it would only be confusing to direct a jury on that subject if the facts of the case did not require it.

17. My view of the law may be summed up very shortly. No one may be convicted of aiding, abetting, counselling or procuring the commission of an offence unless, knowing all the essential facts which made what was done a crime, he intentionally aided, abetted, counselled or procured the acts of the principal offender. Wilful blindness, in the sense that I have described, is treated as equivalent to knowledge but neither negligence nor recklessness is sufficient.

18. It follows that the summing up in the present case was materially defective and that the conviction cannot stand. Since there was evidence on which the jury could have found that the applicant did counsel or procure the commission of the offence, the proper course for this Court is to order a new trial. However, the tragic circumstances of the incident, and the public reaction to it, should not obscure the fact that the case against the applicant is not a particularly strong one. It will be a matter for the Executive to consider whether, having regard to that fact, and to the fact that the applicant has already been tried twice, the applicant should be put on his trial for a third time.

19. I would grant the application for special leave to appeal, allow the appeal and order a new trial.

MASON J. This is an application for special leave to appeal from a judgment of the Court of Criminal Appeal of New South Wales dismissing an appeal by the applicant against his conviction on six charges of culpable driving before Torrington D.C.J. and a jury in the District Court at Sydney. The charges consisted of five charges of driving in a manner dangerous to the public causing death and one charge of driving in a manner dangerous to the public causing grievous bodily harm. They related to an incident on 18 May 1979 in which a prime mover and trailer leased by the applicant and driven by his employee, named Renshaw, suffered a brake failure while loaded with over 22 tonnes of coal travelling down a steep gradient along Mount Ousley Road near Port Kembla in New South Wales. The vehicle collided with two other vehicles as a result of which five people were killed and one suffered grievous bodily harm.

2. The offence of culpable driving is created by s.52A of the Crimes Act 1900 (N.S.W.). That section relevantly provides:

"(1) Where the death of, or grievous bodily harm

to, any person is occasioned through -

.....

(c) impact with a motor vehicle;

.....

and the motor vehicle was at the time of the

impact, or at the time of overturning or leaving

the highway, being driven by another person -

(e) under the influence of intoxicating liquor

or of a drug; or

(f) at a speed or in a manner dangerous to the

public,

the person who was so driving the motor vehicle

shall be guilty of the misdemeanour of culpable

driving.

.....

(3) It shall be a defence to any charge under

this section that the death or the grievous bodily

harm occasioned, as the case may be, was not in any

way attributable to the fact that the person

charged was under the influence of intoxicating

liquor or of a drug or, as the case may be, to the

speed at which or the manner in which the vehicle

was driven."

3. In framing the indictment in conformity with s.52A, the Crown relied on s.351 of the Crimes Act. That section provides:

"Any person who aids, abets, counsels, or

procures, the commission of any misdemeanour,

whether the same is a misdemeanour at Common Law or

by any statute, may be indicted, convicted, and

punished as a principal offender."

The case for the Crown was that the applicant had procured the commission of the misdemeanour of culpable driving by Renshaw in that, with knowledge of or reckless indifference to the state of the brakes of the vehicle and to the danger which they constituted to the public, he had employed Renshaw to drive the prime mover and trailer when its brakes were in such a defective state that to drive it loaded with coal on a public road having steep gradients was to drive in a manner dangerous to the public.

4. The evidence established that the brakes of the vehicle were manifestly defective at the time of the collision and that the applicant, a former service station proprietor who was accustomed to carrying out the maintenance of the vehicles he owned or leased, had carried out repairs to the vehicle on 4 and 5 May 1979, some two weeks before the collision. At that time he replaced an oil seal on the prime mover. In the circumstances, it was clearly open to the jury to infer that he was aware of or at least suspected the defective state of the vehicle's brakes on those dates. To some extent their defects were obvious. The brake components on one of the wheels of the trailer, for example, were held together with a piece of wire. There was also evidence that the established practice was for Renshaw to inform the applicant of all mechanical defects and that Renshaw had contacted the applicant earlier on the day of the collision reporting that he had observed oil leaking from one of the wheels of the prime mover.

5. Before this Court the principal arguments for the applicant relate first to the applicability of s.52A to a person other than the driver of a motor vehicle and secondly, if the section is applicable, to the sufficiency of recklessness as to the state of the brakes and the danger which they constituted to the public as the mental element required to establish liability.

6. The misdemeanour created by s.52A is capable of being committed by a person who is the driver of a motor vehicle. The section was introduced because of the reluctance of juries to convict motorists of manslaughter in the factual circumstances which it envisages (Attorney-General v. Bindoff (1953) 53 SR(NSW) 489, at p 490). However, it is apparent from the terms of the section that mens rea is not an essential element of the misdemeanour which it creates. In order to support a conviction under s.52A it is sufficient that death or grievous bodily harm to a person was occasioned through the specified means at a time when the defendant was driving under the influence of intoxicating liquor or of a drug or at a speed or in a manner dangerous to the public. It is well settled that the test for determining whether the defendant was driving "in a manner dangerous to the public" is an objective one which takes into account "all matters connected with the management and control of a car by a driver when it is being driven" (R. v. Coventry [1938] HCA 31; (1938) 59 CLR 633, at p 639). Those matters, of course, include the mechanical condition of the motor vehicle (cf. Reg. v. Spurge (1961) 2 QB 205; Reg. v. Robert Millar (Contractors) Ltd. (1970) 2 QB 54). But the language of the section does not exclude the operation of a defence of mistake of fact on reasonable grounds and the defendant will not be liable in a case in which the dangerous manner of driving is due to a mechanical defect if he neither knew nor ought to have known of the existence of that defect (R. v. Coventry, at p 638; Reg. v. Spurge).

7. Clearly, s.52A does not in its terms apply to a person in the position of the applicant who was not the driver of the motor vehicle. Its application to the circumstances of the present case is dependent upon the common law doctrine of secondary participation as it is embodied in s.351.

8. It has been recognized that provisions such as s.351 do not themselves create substantive offences but are declaratory of the common law and procedural in nature (Du Cros v. Lambourne (1907) 1 KB 40; Gould & Co. v. Houghton (1921) 1 KB 509; Ex parte Coorey (1944) 45 SR(NSW) 287, at p 295; Reg. v. Glennan (1970) 91 WN (NSW) 609, at pp 612-613; Lenzi v. Miller (1965) SASR 1, at p 10). In misdemeanour, as distinct from felony, a person who aids, abets, counsels or procures the commission of an offence, and who may for convenience be called a secondary party, is regarded for all purposes of procedure as a principal offender. The reason is that the common law has not seen fit to "descend to distinguish the different shades of guilt in petty misdemeanours" (4 Bl. Comm. 36; cf. Gould & Co. v. Houghton, at p 522). Consequently, a secondary party to a misdemeanour may be convicted on an information or indictment which charges him with having committed the offence as principal (Du Cros v. Lambourne). It is essential to conviction on the basis of secondary participation, however, both (a) that the person charged aids, abets, counsels or procures the commission of the misdemeanour and (b) that the misdemeanour is actually committed (Thornton v. Mitchell (1940) 1 All ER 339; cf. Walsh v. Sainsbury [1925] HCA 28; (1925) 36 CLR 464, at p 477; Cain v. Doyle [1946] HCA 38; (1946) 72 CLR 409, at p 419), though there is no requirement that commission of the misdemeanour result in the conviction of another person (R v. Williams (1932) 32 SR(NSW) 504; O'Sullivan v. Thurmer (1955) SASR 76; Schulz v. Paige (1961) SASR 258).

9. In Mallan v. Lee [1949] HCA 48; (1949) 80 CLR 198, at p 216, Dixon J. observed that "the application of sections dealing with aiding and abetting may be excluded by the nature of the substantive offence or the general tenor or policy of the provisions by which it is created". A similar approach must be taken to apply to the exclusion of the doctrine of secondary participation at common law. It may, therefore, be inapplicable to a person of a class whom the substantive offence is designed to protect (Reg. v. Tyrrell (1894) 1 QB 710; Reg. v. Whitehouse [1977] EWCA Crim 2; (1977) QB 868; cf. United States v. Annunziato [1961] USCA2 408; (1961) 293 F 2d 373, at p 379) or in respect of whose participation some lesser punishment is imposed (Ellis v. Guerin (1925) SASR 282; cf. People v. Pangelina (1981) 117 Cal. App. 3d 414, at pp 420-421). It may also be inapplicable where the substantive offence itself involves some element of secondary participation (cf. Jenks v. Turpin (1884) 13 QBD 505, at p 526; Carmichael & Sons (Worcester) Ltd. v. Cottle (1971) RTR 11, at p 14). And in McAteer v. Lester (1962) NZLR 485, a legislative intent to exclude responsibility for secondary participation was found in s.194(1) of the Licensing Act 1908 (N.Z.) which made it an offence for a person to be found on licensed premises at certain times unless he satisfied the Court that he was on the premises for a lawful purpose.

10. It is inherent in the concept of secondary participation, however, that a person may be convicted on the basis of aiding, abetting, counselling or procuring the commission of a statutory offence although the statute creating the offence deals only with the liability of the principal offender. So much was stated by Coke and Hale (3 Co. Inst. 59; 1 P.C. 613, 614, 704). And it has been settled at common law at least since R. v. Potts [1818] EngR 57; (1818) Russ & Ry 353 (168 ER 841). This is also the case even where the offence is of such a nature that the person could not have committed it as a principal offender (cf. R. v. Goldie; Ex parte Picklum [1937] HCA 65; (1937) 59 CLR 254, at pp 263-264; Mallan v. Lee, at pp 210-211; Reg. v. Australian Industrial Court; Ex parte C.L.M. Holdings Pty. Ltd. (1977) 136 CLR 235, at pp 245-246). Morris v. Tolman (1923) 1 KB 166, to the extent to which it is based on the contrary view, should not be followed.

11. Contrary to the argument of counsel for the appellant, the mere description of the offender under s.52A as the driver of the motor vehicle cannot, therefore, be seen as evidencing a legislative intention to exclude the operation of the common law with respect to secondary participation. Nor, in my opinion, can any such intention be otherwise extracted from the nature of the offence or the terms of the section by which it is created. It follows that the applicant, although charged as a matter of procedure with the substantive offence, was liable to conviction on the basis of having aided, abetted, counselled or procured the commission of the misdemeanour of culpable driving by Renshaw.

12. The terms "aid, abet, counsel or procure" require some comment. In England the approach has been taken that those terms, as they occur in s.8 of the Accessories and Abettors Act 1861 (U.K.) (as amended by s.1 of the Criminal Law Act 1967 (U.K.) which abolished the distinction between felony and misdemeanour), should be treated as four separate words and, so far as possible, be given their ordinary meanings: Attorney-General's Reference (No. 1 of 1975) [1975] EWCA Crim 1; (1975) Q.B. 773. This approach has attracted some criticism (see: J.C. Smith, "Aid, Abet, Counsel or Procure" in P.R. Glazebrook (ed.), Reshaping the Criminal Law (1978), pp.120-137). In any case it has no application to the construction of the same terms as they appear in s.351. Once it is acknowledged that those terms are merely declaratory of the common law, it is to the common law concept of secondary participation, and not to the ordinary meaning of the words themselves, that regard must be had.

13. In felony at common law the terms "aid" and "abet" are generally used to refer to the conduct of a principal in the second degree, or one who is present at the commission of the offence by the principal offender, while the terms "counsel" or "procure" are generally used in relation to the conduct of an accessory before the fact, or one who is absent at the time of the commission of the offence (4 Bl. Comm. 34-36; Ferguson v. Weaving (1951) 1 KB 814, at pp 818-819). In substance, however, there appears to be no distinction between a principal in the second degree and an accessory before the fact beyond the question of presence. In misdemeanour, where no attempt has been made to classify the parties to an offence, each of the four terms is employed to refer to the conduct of a secondary participant. But the terms are descriptive of a single concept. In this regard, I would adopt the observation of Cussen A.C.J. in R v. Russell [1933] VicLawRp 7; (1933) VLR 59, at p 67, as being applicable to secondary participation in misdemeanour. Having listed various words, including "aiding" and "abetting" which have been used to refer to the conduct of a principal in the second degree in felony, his Honour observed:

"All the words abovementioned are, I think,

instances of one general idea, that the person

charged as a principal in the second degree is in

some way linked in purpose with the person actually

committing the crime, and is by his words or

conduct doing something to bring about, or

rendering more likely, such commission."

As R v. Russell itself illustrates, there need not exist any agreement or consensus between the principal in the second degree or secondary participant and the principal offender.

14. In the present case, particular emphasis was placed by the Crown on the conduct of the applicant as having "procured" the misdemeanour of culpable driving by Renshaw. While it may be that in the circumstances of a particular case one term will be more closely descriptive of the conduct of a secondary party than another, it is important that this not be allowed to obscure the substantial overlap of the terms at common law and the general concept which they embody. In approaching the question of whether recklessness as to the state of the brakes is a sufficient mental element to establish liability on the part of the applicant, it is to the mental element required by that general concept that one must look and not to the particular mental state which might be thought to inhere in the word "procure".

15. The application of the doctrine of secondary participation to statutory offences involving no mental element has been considered in a number of cases. In general, the absence of intention as an element of the substantive offence has not been regarded as obviating the necessity for knowledge on the part of the secondary party of the essential facts constituting the offence. The "link in purpose" between the secondary party and the principal offender is not established where a person does something to bring about, or render more likely, the commission of an offence by another in circumstances in which, through ignorance of the facts, it appears to him to be an innocent act.

16. The classic statement of the position is that of Lord Goddard C.J. in Johnson v. Youden (1950) 1 KB 544, at pp 546-547:

"Before a person can be convicted of aiding and

abetting the commission of an offence he must at

least know the essential matters which constitute

that offence. He need not actually know that an

offence has been committed, because he may not know

that the facts constitute an offence and ignorance

of the law is not a defence. If a person knows all

the facts and is assisting another person to do

certain things, and it turns out that the doing of

those things constitutes an offence, the person who

is assisting is guilty of aiding and abetting that

offence, because to allow him to say, 'I knew of

all those facts but I did not know that an offence

was committed,' would be allowing him to set up

ignorance of the law as a defence.

The reason why, in our opinion, the justices were

right in dismissing the informations against the

first two defendants is that they found, and found

on good grounds, that they did not know of the

matters which in fact constituted the offence;

and, as they did not know of those matters, it

follows that they cannot be guilty of aiding and

abetting the commission of the offence."

This statement has received the endorsement of the House of Lords in Reg. v. Churchill (1967) 2 AC 224, at pp 236-237, and Director of Public Prosecutions for Northern Ireland v. Maxwell (1978) 3 All ER 1140 and has been followed in a number of English cases (Ackroyds Air Travel Ltd. v. Director of Public Prosecutions (1950) 1 All ER 933; Thomas v. Lindop (1950) 1 All ER 966; Ferguson v. Weaving; Smith v. Jenner (1968) Crim LR 99; D. Stanton & Son Ltd. v. Webber (1972) Crim.LR 544). The proposition that a person cannot be convicted of secondary participation at common law unless he knows the facts which must be proved to show that the offence has been committed has also been embraced in Australia (Abley v. Crosaro [1946] VicLawRp 11; (1946) VLR 53; Blackmore v. Linton [1961] VicRp 63; (1961) VR 374, at p 377; Reg. v. Glennan; Dennis v. Pight (1968) 11 FLR 458). The reasoning of the Full Court of South Australia in Lenzi v. Miller, if it proceeds on a different basis, cannot be supported.

17. The application of the proposition to the offence created by s.52A does not require that the applicant be shown to have any knowledge or intention concerning the impact with a motor vehicle or the occasioning of death or grievous bodily injury even though these matters must be proved to establish the offence. The reason is that the actions of both the principal offender and the secondary party under s.52A are complete where the vehicle is driven in a manner dangerous to the public. The circumstance that liability attaches under the section only where that manner of driving carries certain consequences, which are the natural and probable results of such driving, does not relieve the secondary party of culpability merely because he has no knowledge of those consequences.

18. As we have seen, knowledge of all the essential facts giving rise to the dangerous driving is necessary to constitute commission of the offence on the part of the applicant. But it is not necessary that there should be actual knowledge of all the essential facts constituting the offence in order to establish secondary participation. It is enough if the defendant has deliberately shut his eyes to a relevant fact or has deliberately abstained from obtaining knowledge by making an inquiry for fear that he may learn the truth (cf. Reg. v. Crabbe (unreported judgment, delivered 26 March 1985)). On this aspect of the case, notwithstanding my participation in the judgment of the Court of Criminal Appeal in Reg. v. Glennan, I am now in agreement with what the Chief Justice has written, including his comments on the passage in the judgment in Reg. v. Glennan (at p 614). It follows that the summing-up was defective to the extent that it referred to the concept of recklessness.

19. Further arguments for the applicant relate broadly to the manner in which the collision occurred. The evidence established that as the vehicle careered down the steep gradient along Mount Ousley Road following the failure of its brakes, the driver of another truck interposed his vehicle in front of it in an attempt to stop or slow it down. When the vehicle collided with the truck Renshaw lost his ability to steer. It was several seconds after this and some 200 metres further down the road that the vehicle collided with the two other vehicles as a result of which the deaths and injury occurred. In these circumstances, it is argued that there was a novus actus interveniens or alternatively that the vehicle was not being driven, either by Renshaw or in a manner dangerous to the public, at the time of impact with those vehicles.

20. The argument that there was a novus actus interveniens is in substance an argument that the deaths and harm occasioned were not attributable to the manner in which the vehicle was driven within the meaning of s.52A(3). The subsection requires only that the defence establish on the balance of probabilities the absence of any causal connection between the deaths and harm and the manner in which the vehicle was being driven (Reg. v. Windle (1958) 75 WN (NSW) 63). It is a question of fact and degree and one which was properly left to the jury.

21. The question of whether the vehicle was being driven by Renshaw or in a manner dangerous to the public at the time of impact is also one of fact and degree. A vehicle which becomes uncontrollable as a consequence of a dangerous manner of driving does not necessarily cease to be driven or to be driven in that manner because the driver is unable to steer it. In McBride v. The Queen [1966] HCA 22; (1965) 115 CLR 44, at p 47, Barwick C.J. said:

"In some circumstances it may not be enough that

the impact is the result of the vehicle having been

driven at some earlier point of time in breach of

the section. In other circumstances, the interval

of time between the driving which is in breach of

the section and the impact may be so short that the

offending driving can be regarded as persisting to

the moment of impact."

It was clearly open to the jury to conclude that the offending driving in this case persisted to the moment of impact.

22. The final argument for the applicant, which attacks the answer given by the trial judge to a question by the foreman of the jury on the issue of causation, is without substance. The foreman of the jury asked the following question:

"Does a causal connection have to be established

between

(a) the driving in a manner dangerous (first

section of the charge); and

(b) 'when through impact ... with a certain other

vehicle' (another section of the charge)?"

His Honour replied:

"The position is that the death, or the grievous

bodily harm must be occasioned to a person in a

motor vehicle through the impact, that is caused by

the impact, and the second thing is that impact

must occur at a time when the vehicle is being

driven in a manner dangerous to the public."

I can see no error in this reply.

23. However, having regard to my agreement with the Chief Justice as to the inadequacy of the instruction given to the jury on the question of knowledge, this being an important question in the law of criminal complicity, I would grant special leave to appeal, allow the appeal, quash the conviction and order a new trial.

WILSON, DEANE and DAWSON JJ. The appellant was convicted upon six counts of culpable driving under s.52A of the Crimes Act 1900 (N.S.W.). The charges arose from a series of collisions between a prime mover and semi-trailer owned or leased by the appellant and a number of motor cars in one of which a family of five persons were killed and in another of which the driver sustained grievous bodily harm. The appellant's motor vehicle was at the time of the accident driven by a man named Renshaw and the appellant, who was not present at the accident, was charged with culpable driving in reliance upon s.351 of the Crimes Act, which provides:

"Any person who aids, abets, counsels, or procures,

the commission of any misdemeanour, whether the

same is a misdemeanour at Common Law or by any

statute, may be indicted, convicted, and punished

as a principal offender."

The counts contained in the indictment charged the appellant with driving a motor vehicle in a manner dangerous to the public when through impact of the said motor vehicle with a certain other motor vehicle, a death, in the case of five counts, and grievous bodily harm, in the case of the sixth count, was occasioned.

2. Where s.351 is applicable, it permits the indictment to be framed in this way, but it is an undesirable practice because it does not make clear the real nature of the case against the accused. The Crown in this case did not allege that the appellant himself drove the vehicle, but that he aided, abetted, counselled or procured the driving of the vehicle in the circumstances alleged. Upon the assumption that s.351 applied, it was plainly preferable, in order to avoid the possible confusion of the jury, to have added sufficient particulars to indicate how it was that the appellant was charged with the offences alleged against him. See Reg. v. Maxwell (1978) 1 WLR 1350; (1978) 3 All ER 1140.

3. The Crown case against the appellant was that he procured the commission by Renshaw of the offences of culpable driving by sending him on to the road in a vehicle with defective brakes on the date on which the accident happened, which was 18 May 1979.

4. The evidence was clearly sufficient to establish that Renshaw was driving the appellant's prime mover and semi-trailer for him on 18 May 1979 and that on that day the vehicle's brakes were grossly defective. Although causation was no necessary part of the Crown's proof (absence of causation nevertheless providing a defence: s.52A(3)), the evidence also established that it was the failure of the vehicle's brakes which caused the accident in which five persons were killed and one suffered serious injury. There was evidence upon which the jury could find that the appellant knew of the defective condition of the brakes, although it was a real question whether he did in fact have that knowledge.

5. The evidence revealed that the appellant used to own a garage and was a mechanic. He attended to the maintenance of the vehicle and carried out repairs on it. When Renshaw noticed any mechanical defects in the vehicle he told the appellant of them. On the week-end of 5 and 6 May 1979, the appellant, together with Renshaw and another man, did some work on the vehicle, including work on its braking system. At the same time, they replaced an oil seal on the brakes and adjusted them. A week or two before the accident, the appellant and Renshaw changed some of the tyres on the vehicle. On 18 May 1979, the day of the accident, Renshaw telephoned the appellant and told him there was an oil leak from one of the wheels of the prime mover. Upon inspection of the vehicle after the accident, apart from the many less obvious defects, it was apparent that the offside front leading shoe on the trailer had been wired back to the back plate to prevent the shoe from dragging on the inside surface of the brake drum.

6. Section 52A of the Crimes Act, under the heading "Culpable driving", provides:

"(1) Where the death of, or grievous bodily harm

to, any person is occasioned through -

...

(c) impact with a motor vehicle; or

...

and the motor vehicle was at the time of the

impact, or at the time of overturning or leaving

the highway, being driven by another person -

(e) under the influence of intoxicating

liquor or of a drug; or

(f) at a speed or in a manner dangerous to

the public,

the person who was so driving the motor vehicle

shall be guilty of the misdemeanour of culpable

driving.

...

(3) It shall be a defence to any charge under this

section that the death or the grievous bodily harm

occasioned, as the case may be, was not in any way

attributable to the fact that the person charged

was under the influence of intoxicating liquor or

of a drug or, as the case may be, to the speed at

which or the manner in which the vehicle was

driven."

7. The manner in which a vehicle may be driven includes its mechanical condition and if that condition is defective, it may, by reason of that fact, be driven in a manner dangerous to the public. See R. v. Coventry [1938] HCA 31; (1938) 59 CLR 633, esp. at p 639; Reg. v. Spurge (1961) 2 QB 205; Reg. v. Robert Millar Ltd. (1970) 2 QB 54. The offence created by s.52A does not require the prosecution to prove any state of mind on the part of the driver, although his act of driving must be conscious and voluntary and he may have a defence of mistake of fact on reasonable grounds: R. v. Coventry, at p 638. It is unnecessary to pursue in this case whether the driver must establish such a defence or whether the effect of his raising it is to cast upon the Crown the ultimate burden of disproving it beyond reasonable doubt. It is sufficient to observe that the defence is available. Otherwise the mental state of the driver is irrelevant, for the section imports an objective standard by which his driving is to be judged.

8. No question was, however, raised in this case that the actions of Renshaw were other than conscious and voluntary and no reliance appears to have been placed upon any exculpatory belief which may have been entertained by him. The accident occurred when the brakes failed on the appellant's vehicle and it careered down a steep descent unable to slow down or stop. Seconds before the accident, the vehicle collided with another truck which had been intentionally placed in its path in an effort to avoid the collisions which nevertheless ensued. Renshaw gave evidence that, after colliding with the other truck, the steering mechanism of the appellant's vehicle failed and he lost control of it. Thereafter the vehicle veered on to the wrong side of the road and collided with other vehicles, including those in which the five people died and the sixth was injured. The question was raised whether Renshaw was driving the appellant's vehicle at the time of the impact with the latter vehicles, having regard to the collision with the other truck and his loss of control, but, as Barwick C.J. pointed out in McBride v. The Queen [1966] HCA 22; (1966) 115 CLR 44, at p 47, " ... the interval of time between the driving which is in breach of the section and the impact may be so short that the offending driving can be regarded as persisting to the moment of impact." It was a question for the jury and the learned trial judge drew their attention to it in clear terms. There was evidence upon which the jury could find that Renshaw was still driving the appellant's vehicle at the time of the two impacts in question and it is clear that they did so find.

9. It is necessary, therefore, to proceed upon the basis that the offences of culpable driving were committed by Renshaw. It is those offences which the appellant was alleged to have aided, abetted, counselled or procured. To have done so he must have intentionally participated in the principal offences and so must have had knowledge of the essential matters which went to make up the offences of culpable driving on the occasion in question, whether or not he knew that those matters amounted to a crime. See Johnson v. Youden (1950) 1 KB 544, at p 546; Reg. v. Churchill (1967) 2 AC 224. As Viscount Dilhorne put it in Reg. v. Maxwell, at p 1355 of WLR; p 1144 of All ER, " ... it is clear that a person cannot properly be convicted of aiding and abetting in the commission of acts which he does not know may be or are intended." See also Abley v. Crosaro [1946] VicLawRp 11; (1946) VLR 53; Blackmore v. Linton [1961] VicRp 63; (1961) VR 374; Dennis v. Pight (1968) 11 FLR 458. The requirement of intention on the part of an aider, abettor, counsellor or procurer or, if we may use the term, a secondary participant in a crime, is a requirement at common law and it is a requirement which is not affected by s.351 of the Crimes Act. That section merely restates the common law by providing, in effect, that in proceeding against a secondary participant in a misdemeanour, no distinction is to be drawn between the principal offender and the secondary participant. See Du Cros v. Lambourne (1907) 1 KB 40; Gould & Co. v. Houghton (1921) 1 KB 509; Carter Patersons & Pickfords Carriers, Ld. v. Wessel (1947) KB 849, at p 852; Richards v. McPherson [1943] VicLawRp 7; (1943) VLR 44; Ex parte Coorey (1944) 45 SR (NSW) 287, at p 295. Whilst in the case of felonies, separate offences are committed by principals in the second degree (aiders and abettors) and accessories before the fact (counsellors and procurers), a person who aids, abets, counsels or procures the commission of a misdemeanour may at common law be proceeded against as a principal because " ... it is not worth while to regard inferior criminals through a microscope, or to classify them scientifically, as felons were treated when most felonies were capital offences so far as the principals were concerned." See Gould & Co. v. Houghton, at p 520 per Darling J. It is the common law position which s.351 of the Crimes Act expresses and in so doing it does not exclude a guilty mind as a necessary ingredient of secondary participation in the commission of a misdemeanour.

10. We have mentioned at the outset the requirement of intent on the part of a secondary participant, because, in each count, the principal offence, culpable driving, is, in the sense in which we have explained it, an offence involving strict liability: the prosecution is not required to prove any mental state on the part of the driver. That does not, however, relieve the prosecution of the burden of proving intention on the part of a secondary participant and it is this consideration which we think lies behind a submission that the offence of culpable driving created by s.52A of the Crimes Act is of such a nature as to preclude secondary participation in it with the result that the application of s.351 is excluded. The application of that section may be excluded by necessary implication (see Mallan v. Lee [1949] HCA 48; (1949) 80 CLR 198, at p 216 per Dixon J.; Morris v. Tolman (1923) 1 KB 166; Ellis v. Guerin (1925) SASR 282) and it would be excluded if it appeared that the offence of culpable driving created by the legislature was intended to apply only to the driver of the vehicle involved and not to a secondary participant. The mere absence in the section of any reference to secondary participation does not, however, show any intention to exclude it. See Hale's Pleas of the Crown, vol.1 (1800), p 704; R. v. Potts [1818] EngR 57; (1818) Russ & Ry 353 (168 ER 841).

11. There is no difficulty in the proposition that a person may intentionally aid, abet, counsel or procure the driving of a vehicle in a particular manner or whilst the driver is in a particular state. Thus there may be secondary participation in the offence of driving in a manner dangerous to the public or of driving whilst under the influence of intoxicating liquor or of a drug. Those offences are created by s.4(1) and s.5(2) of the Motor Traffic Act 1909 (N.S.W.). But the offence of culpable driving is something more than those offences. It includes the acts necessary to constitute those offences but requires in addition that the driving should be attended by death or grievous bodily harm occasioned through impact with the vehicle being driven. Although it is clear that a person may intend to aid, abet, counsel or procure the driving of a vehicle in a dangerous manner or whilst the driver is under the influence of intoxicating liquor, it is not to be expected, except, perhaps, in rare instances, that in so doing he would intend that there should be an impact occasioning death or grievous bodily harm. So it is said, as we understand the submission, that whilst the driver of the vehicle may be guilty of culpable driving because the offence does not involve any mental state on his part, he cannot be aided, abetted, counselled or procured to commit the offence because that would require on the part of the secondary participant an intention which encompassed the occurrence of death or grievous bodily harm. It may be enough to answer the submission to point to the rare instances - intentionally encouraging a driver to drive in the face of oncoming traffic, for example - where the intent of the secondary participant may be said to extend to an impact occasioning death or grievous bodily harm, but the real answer lies elsewhere.

12. Before the introduction of the offence of culpable driving, motorists who caused death in the course of committing unlawful acts on the roads were charged with manslaughter. Although the manslaughter charged was involuntary manslaughter, juries were nevertheless reluctant to convict and the less grave offence of culpable driving was conceived. See Attorney-General v. Bindoff (1953) 53 SR (NSW) 489, at p 490. As with involuntary manslaughter, culpable driving does not require that the death, if it is a case involving death, should be intended. It is merely a consequence which serves to convert what would otherwise amount to one offence - driving in a manner dangerous to the public, for instance - into another and more serious offence. The same may be said of grievous bodily harm if it is a case of grievous bodily harm. Just as an unintended death may convert a crime such as an assault into involuntary manslaughter, so death or grievous bodily harm may convert a lesser driving offence into culpable driving, even if the death or grievous bodily harm is unintended.

13. At one time there may have been some basis for the proposition that no offence is known to the law of being an accessory before the fact to involuntary manslaughter. See Hale's Pleas of the Crown, vol.1 (1800), p.436. The proposition is based upon the notion that a man cannot counsel or procure what he does not intend and he cannot intend an accidental killing. But in Blackstone's Commentaries (21st ed. 1844) vol.4, pp.36-37, it was said:

"And it is also settled, that whoever procureth a

felony to be committed, though it be by the

intervention of a third person, is an accessory

before the fact. It is likewise a rule, that he

who in any wise commands or counsels another to

commit an unlawful act, is accessory to all that

ensues upon that unlawful act; but is not accessory

to any act distinct from the other."

And Bramwell B. in Reg. v. Gaylor (1857) Dears & Bell 288, at p 291 (169 ER 1011, at p 1012) apparently thought that there was only one answer to the question:

"Suppose a man, for mischief, gives another a

strong dose of medicine, not intending any further

injury than causing him to be sick and

uncomfortable, and death ensues, would not that be

manslaughter? Suppose, then, another had

counselled him to do it, would not he who

counselled be an accessory before the fact?"

See also Reg. v. Taylor (1875) 13 Cox CC 68; Reg. v. Buck and Buck (1960) 44 Cr App R 213.

14. In Reg. v. Creamer (1966) 1 QB 72, at p 82, the Court of Criminal Appeal reviewed the authorities and expressed the law to be as follows:

"A man is guilty of involuntary manslaughter when

he intends an unlawful act and one likely to do

harm to the person and death results which was

neither foreseen nor intended. It is the accident

of death resulting which makes him guilty of

manslaughter as opposed to some lesser offence such

as assault, or, in the present case, abortion.

This can no doubt be said to be illogical, since

the culpability is the same, but nevertheless, it

is an illogicality which runs throughout the whole

of our law, both the common law and the statute

law. A comparatively recent example is clearly

that of dangerous driving and causing death by

dangerous driving. Bearing that in mind, it is

quite consistent that a man who has counselled and

procured such an illegal and dangerous act from

which death, unintended, results should be guilty

of being accessory before the fact to

manslaughter."

15. That seems to us to be an accurate statement of the law and it follows that, although a person cannot aid, abet, counsel or procure the commission of an offence, even a statutory offence involving strict liability, without intent based upon knowledge of the essential facts which constitute the offence, the requisite intent and knowledge do not, in the case of culpable driving, extend to the occurrence of the death or grievous bodily harm which "ensues upon" the unlawful act the commission of which was aided, abetted, counselled or procured. The application of s.351 of the Crimes Act to the offence of culpable driving is not, therefore, excluded by necessary implication. Cf. Reg. v. Robert Millar (Contractors) Ltd.

16. The second main submission made on behalf of the appellant was that the learned trial judge misdirected the jury in charging them that it was sufficient to establish intent on the part of the accused if his vehicle was being driven by Renshaw with defective brakes and the applicant " ... ought to have known of the defect by the exercise of his reasonable care and diligence, that the accused knew or ought to have known by the exercise of reasonable care and diligence of the danger thereby to the public, and that the accused either ignored it or knowingly took such negligent measures to cope with it to make his conduct in employing the driver so to drive in a manner dangerous to the public." Elsewhere in the charge the learned trial judge referred to the possibility of "imputed knowledge" or "presumed knowledge" of the applicant of the defective state of his vehicle's brakes and finally in a re-direction he qualified his former remarks by saying:

"I qualify that by limiting the words, 'Ought to

have known by the exercise of reasonable care and

diligence' by saying that a mere failure to make an

inquiry which would yield knowledge of an essential

fact is not in itself sufficient, for to act

negligently does not make a person an aider or

abettor. The prosecution for its part must show

that he knew on 18 May that the brakes were

defective and could constitute the driving of the

vehicle to be driving in a manner dangerous to the

public ... or on 18 May he acted so recklessly not

caring whether these facts existed or not."

17. In giving these directions, the trial judge no doubt had in mind the judgment of the New South Wales Court of Criminal Appeal in Reg. v. Glennan (1970) 91 WN (NSW) 609 in which the following passage appears at p 614:

"It may, therefore, be concluded that, in the

case of statutory offences in which intention is

not a necessary element, the law does not require

actual knowledge on the part of the aider and

abettor of all the essential facts of the offence.

The element of knowledge or intention required of

an aider and abettor might perhaps be more

accurately expressed by saying that it must be

shown that he either knew or suspected the

existence of facts which would constitute the

commission of the offence or, perhaps, that he

acted recklessly, not caring whether the facts

existed or not. Mere failure to make an inquiry

which, if made, would yield knowledge of an

essential fact, is not in itself enough to

constitute knowledge of the fact, for it is

accepted that to act negligently does not make a

person an aider and abettor ... But the

circumstances of a given case may be such as to

reveal not merely a failure to make an inquiry, but

a failure to make an inquiry which is of such a

kind as to suggest that the defendant has

deliberately abstained from acquiring knowledge

because he suspected the existence of a fact which

would have been ascertained on inquiry, or that the

defendant has acted recklessly in the sense that he

did not care whether the facts existed or not

(Carter v. Mace (1949) 2 All ER 714; cf. Davies,

Turner & Co. Ltd. v. Brodie (1954) 1 WLR 1364;

(1954) 3 All ER 283)."

18. A number of things might be said about that passage. In the first place, there is no basis upon which it can be said that where a statutory offence requires no proof of intent, it is unnecessary in order to establish secondary participation in the commission of that offence to prove actual knowledge of all the essential facts of the offence. Intent is an ingredient of the offence of aiding and abetting or counselling and procuring and knowledge of the essential facts of the principal offence is necessary before there can be intent. It is actual knowledge which is required and the law does not presume knowledge or impute it to an accused person where possession of knowledge is necessary for the formation of a criminal intent. Secondly, although it may be a proper inference from the fact that a person has deliberately abstained from making an inquiry about some matter that he knew of it and, perhaps, that he refrained from inquiry so that he could deny knowledge, it is nevertheless actual knowledge which must be proved and not knowledge which is imputed or presumed.

19. The third question raised by the passage which we have cited from Reg. v. Glennan is whether it is possible to aid, abet, counsel or procure the commission of an offence by acting recklessly. Aiding, abetting, counselling or procuring the commission of an offence requires the intentional assistance or encouragement of the doing of those things which go to make up the offence. The necessary intent is absent if the person alleged to be a secondary participant lacks knowledge that the principal offender is doing something or is about to do something which amounts to an offence. We have already referred to Johnson v. Youden and the other cases in which this point is made clearly. The same point was expressed differently but with equal clarity by Lord Goddard C.J. in Thomas v. Lindop (1950) 1 All ER 966, at p 968, where he said:

"More than once this court has pointed out that it

is impossible to convict persons of aiding and

abetting the commission of an offence unless they

know the facts which must be proved to show that an

offence has been committed ... It is, of course,

not necessary to show that the person knew that it

was an offence, because he cannot plead ignorance

of the law, but where anyone is charged with aiding

and abetting a person to commit an offence, it

must, at least, be shown that he knew what that

person was doing. A person who does not know of

the acts which another person is doing cannot be

charged with aiding and abetting him because he

does not know that he is doing acts which amount to

an offence."

There are, of course, those cases which hold that the requisite knowledge need not extend to the precise crime which is in fact committed, although some crime must be in contemplation at the time secondary participation is alleged to occur, a general criminal purpose being insufficient. See R. v. Lomas (1913) 9 Cr App R 220; Reg. v. Bullock (1955) 1 WLR 1; (1955) 1 All ER 15; R v. Bainbridge (1960) 1 KB 129; Reg. v. Maxwell. The questions which these cases raise do not arise in this case and it is unnecessary to do more than refer to them.

20. In this case, the Crown contends that the appellant procured the commission of the offences of culpable driving by Renshaw by sending him on to the road in a vehicle with defective brakes. It contends that, even if the appellant had no knowledge of the state of the vehicle's brakes, it was sufficient that he acted recklessly in doing what he did. The precise nature of the recklessness relied upon is not entirely clear and it is understandable that it occasioned the learned trial judge some difficulty in attempting to explain it to the jury. It cannot have been inadvertent carelessness, however gross, for it can hardly be suggested that a person can accidentally become a secondary participant in the commission of a crime. The recklessness contemplated must have involved some foresight on the part of the appellant that the driving of the vehicle on the road would probably (or possibly - it was not made clear which) be dangerous, because of the defective condition of the brakes. In effect, that would mean, if the Crown were correct, that it would have proved a sufficient intent on the part of the appellant in all the circumstances if it established that he knew that the brakes on the vehicle were probably (or possibly) defective.

21. For the purposes of many offences it may be true to say that if an act is done with foresight of its probable consequences, there is sufficient intent in law even if such intent may more properly be described as a form of recklessness. There are, however, offences in which it is not possible to speak of recklessness as constituting a sufficient intent. Attempt is one and conspiracy is another. And we think the offences of aiding and abetting and counselling and procuring are others. Those offences require intentional participation in a crime by lending assistance or encouragement. They do not, of course, require knowledge of the law and it is necessary to distinguish between knowledge of or belief in the existence of facts which constitute a criminal offence and knowledge or belief that those facts are made a criminal offence under the law. The necessary intent is absent if the person alleged to be a secondary participant does not know or believe that what he is assisting or encouraging is something which goes to make up the facts which constitute the commission of the relevant criminal offence. He need not recognize the criminal offence as such, but his participation must be intentionally aimed at the commission of the acts which constitute it. It is not sufficient if his knowledge or belief extends only to the possibility or even probability that the acts which he is assisting or encouraging are such, whether he realizes it or not, as to constitute the factual ingredients of a crime. If that were sufficient, a person might be guilty of aiding, abetting, counselling or procuring the commission of an offence which formed no part of his design. Intent is required and it is an intent which must be based upon knowledge or belief of the necessary facts. To the extent that Reg. v. Glennan suggests the contrary, it is not, in our view, in accordance with principle and does not correctly state the law.

22. The authorities relied upon in the passage which we have cited in Reg. v. Glennan do not appear to us to provide adequate support for the propositions which it contains. Carter v. Mace was a case in which the appellant was alleged to have aided and abetted the commission of the statutory offence of failing to comply with the conditions of a licence to carry goods. The principal offence was committed by the owner of a lorry which the appellant, who carried on the business of a transport clearing house, hired to carry goods for him. A Divisional Court held that if the appellant undertook this class of business he was bound to see that contracts were carried out in a legal manner and, having failed to do so, was guilty of aiding and abetting the commission of a statutory offence. The precise basis of the decision is difficult to discern. In Davies, Turner & Co. Ltd. v. Brodie, a Divisional Court was referred to Carter v. Mace and it expressed the view that it was a decision on its own particular facts and laid down no proposition of law. In Davies, Turner & Co. Ltd. v. Brodie, the defendant was charged with aiding and abetting the commission of the offence of using a goods vehicle without the required permit. The defendant had obtained an assurance from the driver of the vehicle that he had the necessary permit. The Court held that because the appellant " ... had no reason to suppose that the facts were present which would constitute an offence ... ", the offence of aiding and abetting was not made out. Lord Goddard C.J., who also presided in Carter v. Mace, said, at p 1367 of WLR; cf. p 286 of All ER:

"If a person shuts his eyes to the obvious or

refrains from making any inquiry where a reasonably

sensible man would make inquiry, I think the court

can find that he was aiding and abetting, certainly

if he shuts his eyes to the obvious."

The fact of exposure to the obvious may warrant the inference of knowledge. The shutting of one's eyes to the obvious is not, however, an alternative to the actual knowledge which is required as the basis of intent to aid, abet, counsel or procure. Lord Goddard appears to have recognized this by concluding his judgment with the words:

" ... that is the point: you must know the

essential matters which constitute the offence."

23. The Court of Criminal Appeal in Reg. v. Glennan also referred in its judgment to Poultry World Ltd. v. Conder (1957) Crim LR 803 and Bateman v. Evans (1964) 108 SJ 522. In the report of Poultry World Ltd. v. Conder, a Divisional Court is said to have decided that a person could not be convicted of aiding and abetting unless he had knowledge of the facts which constitute the offence or unless he deliberately abstained from obtaining such knowledge. In the commentary upon the decision, however, it is made clear that the Court took the view that the offence of aiding and abetting could not be established unless there was proof of knowledge or " ... such negligence as to amount to deliberate shutting of the eyes, i.e. connivance." Connivance can, of course, only be established on the basis of knowledge, whether proved directly or by inference.

24. In Bateman v. Evans, the defendant was convicted of aiding and abetting the commission of the offence of driving while disqualified. The defendant believed the driver's assurance that he had lodged an appeal against his disqualification and was permitted to drive. On a case stated by justices of a Divisional Court, it was held that the conviction should be quashed upon the basis " ... that A had a bona fide belief that B was entitled to drive, and the case fell within Davies, Turner & Co. Ltd. v. Brodie".

25. The passage which we have cited from Reg. v. Glennan was unnecessary for the decision in that case, which held that a person charged with aiding and abetting the offence of driving with a prescribed percentage of alcohol in the blood did not have to know the percentage in order to know all the facts which gave rise to the commission of the principal offence.

26. It follows that, in our view, the trial judge was wrong in directing the jury that reckless behaviour on the part of the appellant would suffice to establish the intent necessary to constitute him the procurer of the offences of culpable driving. That is sufficient to determine this case and no point is to be served in examining the terms of the direction given. Since there was evidence, not without its weaknesses, from which the jury might have inferred that the appellant knew the facts which went to make up the offence of culpable driving, there was a case to answer. The proper course is, therefore, for this Court to grant special leave, allow the appeal, quash the conviction and order a new trial.

27. However, there are some special features of this case which should, perhaps, be mentioned. These proceedings against the appellant have been pending since May 1979. There have been two trials, two appeals to the Court of Criminal Appeal and an application for special leave to this Court. The appellant is a man of some 58 years of age who, as the Court of Criminal Appeal said, " ... came before the Court as a man of good character who had led a very hard-working and enterprising life in this country." On 17 September 1982, he was sentenced by the trial judge to concurrent periods of imprisonment of five years each on the first five counts and three years on the sixth count. A non-parole period of two years was specified. On 30 May 1984, these sentences were quashed by the Court of Criminal Appeal and concurrent periods of imprisonment of two and a half years on each of the first five counts and two years on the sixth were imposed. The legislation relating to parole having changed in the meantime, the Court of Criminal Appeal specified a non-probation period of one year and three months and made a probation order for the release of the appellant at the expiration of that period. It was not suggested that the appellant was in any way responsible for the delays which have occurred and it is plain that the protracted nature of the proceedings must have subjected him to prolonged strain. No doubt these matters will be given due weight when consideration is given by the Crown to the course which should be taken.

ORDER

Application for special leave to appeal granted.

Appeal allowed.

Order that the judgment of the Court of Criminal Appeal of the Supreme Court of New South Wales be set aside. In lieu thereof order that the appeal to that Court be allowed, that the conviction and sentence be set aside and that a new trial be had.