The Criminal Code 1995 (Cth), as it stood before the insertion of s 11.2A in 2010, did not recognise joint criminal enterprise as a basis of criminal liability; Chapter 2 exhaustively stated the general principles of criminal responsibility. Where a jury is misdirected as to the basis of criminal responsibility but the jury's findings necessarily encompass the elements of the correct basis of liability (here, aiding under s 11.2), the proviso may be applied. Under s 619(2) of the Criminal Code 1899 (Qld), the Crown prosecutor's right to address accrues when the conditions are met (accused defended by counsel and counsel indicates no evidence to be adduced) and is not extinguished by the accused's subsequent withdrawal of instructions.
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