Under the Criminal Code 2002 (ACT), a person cannot be convicted of inciting another to procure a third party to commit an offence where the substantive offence is not ultimately committed, because s 47(5) imports the s 45(3) limitation requiring commission of the substantive offence. The majority (Wigney and Refshauge JJ) held that inciting another to procure an offence is an offence known to law, but Murrell CJ disagreed, and the broader question remains unresolved where the substantive offence is in fact committed. The UK authorities on conspiracy to aid and abet (R v Hollinshead, R v Kenning) are of little assistance in construing the ACT Code provisions due to materially different statutory language.
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