If you agree with someone to commit an offence, how much do you need to know?
You don’t need to know that the proposed course of conduct is unlawful, because ignorance of the law is no excuse.
But you do need to know what conduct is proposed and you also need to have the state of mind required by the definition of the offence.
Not all offences require knowledge or recklessness as to the existence of all the physical facts that have to be proved to establish liability.
For example, an offence of supplying a controlled drug to a person who is under a specified age. Liability need not, depending on the definition of the offence, require proof that the defendant knew of the recipient’s age. There might, again depending on the relevant legislation, be a defence of reasonable belief that the person was over the specified age.
Again, an offence of sexually penetrating a person who is under a specified age need not require proof that the defendant knew of the person’s age. There may, again depending on the legislation, not be a defence of reasonable mistake as to the person’s age.
These two types of offences were considered in the context of the law of the State of Victoria in R v Rohan (a pseudonym) [2024] HCA 3.
Gageler CJ, Gordon and Edelman JJ referred to the starting point for interpreting a statutory provision: the text and its context in the widest sense, including its historical context, and its purpose [25].
Attention centred on s 323(1)(c) of the Crimes Act, (see [13]) and also s 323(3)(b) (see [14]), and it was noted that liability in this case depends on agreement [29]. The state of mind required of the people who agree to commit an offence is the state of mind required for commission of the agreed offence [31].
Here, knowledge of the ages of the people who received the cannabis, and knowledge of the age of the person who was sexually penetrated, did not need to be proved for liability [32]. It was sufficient for the prosecution to prove that the defendants entered into the agreement while intending that the cannabis be received by the specified persons, and that they intended that the specified person should be sexually penetrated [33], [34].
Gleeson and Jagot JJ concurred, referring at [62] to statutory construction assisted by reference to parliamentary material, and to the statutory context [68], [69]. The agreement to commit an offence places the parties to the agreement in the same position regarding the requirements for their liability [73], so it was only necessary that the parties agreed on the specific people in respect of whom the offences were to be committed [74].
