Presence at the scene of a crime pursuant to an agreement to commit the crime constitutes sufficient participation in a joint criminal enterprise; no additional act beyond presence is required where presence is not a live issue at trial. The hypothesis of secondary DNA transfer via a handshake hours before the offence, where the expert evidence was that secondary transfer occurs very infrequently and the hypothesis required a succession of unlikely events, was insufficient to constitute a reasonable hypothesis consistent with innocence. Gray and Sulan JJ held s 23(1) creates two offences (basic and aggravated); Blue J held it creates one offence with two penalty forms — the question remains unresolved by a clear majority on the statutory construction point, though the result was unanimous.
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