1. Inciting a Person to Pursue a Course of Conduct That Will, If Acted Upon, Involve The

6.2 - Incitement[1]

6.2.1 - Bench Notes

Overview

1.  Inciting a person to pursue a course of conduct that will, if acted upon, involve the commission of an offence by the person incited and/or the inciter is an indictable offence (Crimes Act 1958 s321G).[2]

2.  This is a form of inchoate liability, like attempt and conspiracy (see, e.g., Board of Trade v Owen [1957] AC 602).

3.  Incitement is an indictable offence, regardless of whether or not the incited offence is indictable (Crimes Act 1958 s321G).

4.  Incitement is a substantive offence, and is committed upon completion of the inciting conduct, regardless of whether the incitement is successful. This distinguishes incitement from accessorial liability (see, e.g., R v Massie [1999] 1 VR 542; Dimozantos v R (1993) 178 CLR 122).

Elements

5.  Incitement has two elements:

i)  The accused incited a person to pursue a course of conduct that would, if acted upon, involve the commission of an offence (the “principal offence”); and

ii)  At the time of the inciting conduct, the accused intended that the principal offence would be committed.

Each of these elements is addressed in turn below.

Inciting Conduct

6.  For the first element to be met, the prosecution must prove that:

·  The accused incited a person to pursue a particular course of conduct; and

·  If the proposed course of conduct had have been followed, an offence would have been committed by the accused,[3] the person incited, or both the accused and the person incited (Crimes Act 1958 s321G).

7.  To “incite” includes commanding, requesting, proposing, advising, encouraging or authorising (Crimes Act 1958 s2A).

8.  A command or request that is made conditional on some further event can still be incitement, even if the accused has no control over that other event (R v Massie [1999] 1 VR 542; R v Zhong [2003] VSCA 56).

9.  However, in some cases a command or request may be subject to so many conditions, or be dependent on such unlikely events, that there is not an incitement (R v Zhong [2003] VSCA 56).

10.  While the incitement needs to have come to the knowledge of the person incited, it does not need to have had any particular effect on him/her. S/he does not need to have formed an intention to commit the principal offence, nor taken any steps to commit that offence, for this element to be met (R v Dimozantos (1991) 56 A Crim R 345; R v Massie [1999] 1 VR 542; R v Zhong [2003] VSCA 56).

11.  It is not necessary for the accused to have originated the idea of inciting the criminal conduct. The idea could have originated with a third person, or even with the person to be incited (R v Massie [1999] 1 VR 542).

12.  There is an unresolved issue whether it is permissible to charge an offence of “incitement to incite”. One example where this could be relevant is where it is alleged that A encouraged B to either hire or encourage C to kill D. The Court of Appeal considered this issue in Najibi v R [2016] VSCA 177 and held that it was not necessary to finally decide, because the prosecution case did not, in truth, involve an alleged incitement to incite. However, in obiter, the Court indicated that in its preliminary view, it was likely that there was no prohibition on a charge of “incitement to incite” (at [153]-[160]).

Intention of Accused

13.  The second element requires the accused to have intended that the principal offence be committed (Crimes Act 1958 s321G(2)(a)).

14.  If the intended conduct will not be an offence unless it is committed with a particular state of mind, then the accused must intend that the person who would commit the principal offence have that state of mind (Criminal Law Working Group, Report on Incitement, 1982).

15.  Where the principal offence requires the principal offender to have caused a particular result (e.g., the victim’s death), the prosecution must prove that the accused intended the principal offender to bring about that result. This is required even if the intention to bring about that result is not necessary to convict the principal offender of the principal offence[4] (R v Massie [1999] 1 VR 542).

Intention or Belief in Facts and Circumstances

16.  The accused must also intend or believe that any fact or circumstance that is an element of the offence will exist at the time the offence is expected to take place (Crimes Act 1958 s321G).

17.  This requirement concerns facts or circumstances that are themselves elements of the principal offence. It does not require the accused to have intended or believed that the specific facts or circumstances which are required, in a particular case, to prove the elements of the principal offence, would be in existence at the relevant time (R v Wilson [2004] VSCA 120; R v Massie [1999] 1 VR 542).

18.  It is not necessary to explain this requirement in every case. It only needs to be addressed if it is an issue in the case (R v Massie [1999] 1 VR 542).

Intention where the accused is also the principle offender

19.  An accused’s culpability can be based on inciting an innocent agent to pursue a course of conduct that will involve the commission of an offence by the accused (Crimes Act 1958 s321G(1)(b)).

20.  In such a case, this element will be met if the accused has the necessary mental state. It is no defence that the person incited did not share that mental state (Criminal Law Working Group, Report on Incitement, 1982; Crimes Act 1958 s321G(1)(b). See also Osland v R (1998) 197 CLR 316; R v Hewitt [1997] 1 VR 301; R v Cogan & Leek [1976] QB 217; Matusevich v R (1977) 137 CLR 633; White v Ridley (1978) 140 CLR 342).

Incitement and Impossibility

21.  A person may be convicted of incitement even if facts existed which made the commission of the principal offence impossible (Crimes Act 1958 s321G).

22.  However, incitement is not committed if the accused erroneously believed s/he was inciting a crime. The crime incited must have been a real offence, not an imaginary one (R v Sirat (1986) 83 Cr App R 41).

Jury Directions and Statutory Language

23.  It is generally unnecessary and undesirable to repeat the language of s321G to the jury verbatim (R v Massie [1999] 1 VR 542).

24.  The judge should only explain so much of s321G as is relevant to the case (R v Massie [1999] 1 VR 542).

25.  In a simple case, it is unnecessary to direct the jury concerning the requirement that the accused incite someone to “pursue a course of conduct”. It is sufficient to direct the jury that the accused must incite a person to commit a crime (R v Massie [1999] 1 VR 542).

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[1] This document was last updated on 16 February 2017.

[2] The common law offence of incitement has been abolished (Crimes Act 1958 s321L).

[3] The accused will incite a person to pursue a course of conduct that involves the commission of an offence by the accused (and not the person incited) where the person incited would be the innocent agent of the accused (Criminal Law Working Group, Report on Incitement, 1982).

[4] For example, in a murder case, the prosecution does not need to prove that the principal offender intended the victim to die. It is sufficient to prove that s/he intended for the victim to be really seriously injured (but s/he in fact died). However, in an incitement to commit murder case, the prosecution must prove that the accused intended the principal offender to cause the victim’s death. If s/he only intended the victim to suffer really serious injury, then s/he should instead be convicted of incitement to intentionally cause serious injury (see, e.g., R v Massie [1999] 1 VR 542).