“I Was There, But I Didn’t Do Anything”: Why That Statement Still Leads to Conviction in NSW
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“I Was There, But I Didn’t Do Anything”: Why That Statement Still Leads to Conviction in NSW

ByHornsby Criminal Lawyers

One of the most common, and dangerous, statements made to police is:

“I was there, but I didn’t do anything.”

In NSW criminal law, presence alone is not enough to convict. But presence plus inference often is.

Courts regularly convict people who never threw a punch, never held a weapon, and never took property, because the law recognises participation without physical action. This is not a loophole. It is a long-standing doctrine, carefully explained in Judicial Commission of NSW (JudCom) jury directions and applied consistently by the NSW Court of Criminal Appeal (NSWCCA).

This article explains:

  • the legal difference between mere presence and criminal participation
  • how joint criminal enterprise expands liability
  • when aiding and abetting is inferred from conduct
  • how judges direct juries on circumstantial inference
  • the scenarios and charges where this most often arises
  • the real defence pressure points

The Starting Point: Presence Alone Is Not Guilt, But It Is Evidence

NSW law begins with a protective rule: mere presence at the scene of a crime does not, by itself, prove guilt.

JudCom jury directions emphasise that juries must be told:

  • presence is not participation
  • guilt must be proved beyond reasonable doubt
  • inferences must be carefully drawn

But the same directions also explain the flip side. Presence may become probative when combined with other circumstances that support an inference of participation.

That is where most defendants fall.

Circumstantial Evidence: How Juries Are Allowed to Reason

Most “I was there” cases are circumstantial evidence cases.

JudCom guidance to trial judges stresses:

  • juries may draw reasonable inferences from facts proved
  • guilt must be the only reasonable inference
  • alternative innocent explanations must be excluded

NSWCCA authority repeatedly confirms that participation is often proved inferentially, especially in group offending.

Courts do not require:

  • an eyewitness to every act
  • a confession
  • forensic proof of each role

They look at the totality of conduct.

Presence vs Participation: The Legal Line Courts Draw

Courts assess whether presence crosses into participation by examining:

  • Knowledge: Did the accused know what was happening?
  • Intention: Did they share a common purpose?
  • Conduct: Did they assist, encourage, or facilitate?
  • Timing: Did they remain when withdrawal was possible?
  • Context: Was the offending spontaneous or planned?

JudCom directions caution juries not to speculate, but they are entitled to draw commonsense conclusions from human behaviour.

Joint Criminal Enterprise: Liability Without Action

The doctrine

Under NSW law, a person may be guilty where:

  • two or more persons agree to commit a crime, and
  • each participates pursuant to that agreement,
  • even if only one physically commits the act.

This is commonly referred to as joint criminal enterprise.

NSWCCA cases make clear:

  • the agreement may be tacit
  • it may arise on the spot
  • it may be inferred from conduct

There does not need to be an express plan.

Why “I didn’t touch anything” fails here

If a jury is satisfied that:

  • the accused shared the purpose, and
  • remained present to support or assist,

then liability attaches as a principal, not an accessory.

JudCom materials expressly warn that standing by in a show of force can amount to participation.

Aiding and Abetting: Assistance Without Contact

A person aids or abets an offence if they:

  • intentionally assist, encourage, or facilitate
  • before or during the commission of the offence

Physical action is not required.

JudCom jury directions list examples of assistance that juries may consider:

  • acting as a lookout
  • blocking exits
  • providing transport
  • intimidating victims by presence
  • preventing intervention
  • remaining to “back up” the offender

In practice, presence can itself be assistance if it emboldens or enables the principal offender.

The Scenarios Where This Most Often Leads to Conviction

1. Group Assaults and “One-Punch” Incidents

Common charges:

Typical inference:

  • group presence is used to intimidate
  • the non-striker’s role is to support or encourage
  • joint enterprise liability attaches

JudCom sentencing materials repeatedly stress general deterrence in group violence.

2. Robbery and Steal-From-Person Offences

Common charges:

  • robbery in company
  • assault with intent to rob
  • larceny as a party

Typical inference:

  • one person distracts
  • another takes property
  • others remain to prevent resistance

NSWCCA authority consistently upholds convictions where the accused “did nothing” but remained in a facilitating role.

3. Drug Supply and Deemed Supply

Common charges:

  • supply
  • possession for supply
  • knowingly concerned in supply

Typical inference:

  • presence at transactions
  • control of premises
  • shared access to drugs or money

JudCom materials emphasise that knowledge + presence + association can sustain supply liability.

4. Sexual Offences Involving Multiple Accused

Common charges:

  • sexual assault in company
  • aiding and abetting sexual assault

Typical inference:

  • presence deters resistance
  • failure to intervene supports encouragement
  • shared enterprise inferred from context

JudCom jury directions stress careful scrutiny, but convictions are routinely upheld where participation is inferential.

5. Public Order Offences (Affray, Riot)

Common charges:

Typical inference:

  • group presence contributes to fear
  • numbers amplify violence
  • liability arises even without striking

JudCom commentary emphasises community protection and deterrence.

Post-Offence Conduct: The Silent Killer

JudCom guidance permits juries to consider post-offence conduct, including:

  • fleeing together
  • coordinated stories
  • destruction of evidence
  • failure to distance oneself

NSWCCA authority is clear: what you do after the offence can illuminate what you intended before or during it.

This is where statements like “I didn’t do anything” often backfire, they invite scrutiny of everything else the accused did.

What Does Not Amount to Participation

JudCom directions also protect the accused. Courts caution juries against convicting where:

  • the accused arrived late and left early
  • presence was coincidental
  • the accused attempted to withdraw
  • there is a plausible innocent explanation
  • association is based on friendship alone

These are real defence pathways, but they must be evidenced.

The Charges Most Commonly Supported by Inference

Across NSW, convictions commonly arise by inference in:

  • assault and affray
  • robbery in company
  • sexual assault in company
  • drug supply
  • weapons possession in company
  • property damage in company

In each, participation, not physical action, is the legal hinge.

Defence Pressure Points That Matter

Effective defences focus on:

  • timing (arrival/departure)
  • knowledge (what was actually known)
  • withdrawal (steps taken to disengage)
  • conduct inconsistent with support
  • alternative innocent inferences

JudCom materials stress that juries must acquit if an innocent inference remains reasonably open.

The Core Judicial Warning

Judges routinely warn juries (paraphrased from JudCom-reported directions):

“You must not convict merely because the accused was present. But you may convict if satisfied that the accused’s presence, conduct and knowledge demonstrate participation beyond reasonable doubt.”

That is the fulcrum.

Final Thoughts: Presence Is Neutral, Until It Isn’t

NSW criminal law does not punish by association.
But it does punish participation, even when that participation is silent, supportive, or indirect.

Understanding this doctrine matters because:

  • people incriminate themselves by minimising their role
  • juries are permitted to draw powerful inferences
  • “doing nothing” is sometimes the very thing that enables the crime

If police say “we know you were there”, the legal question is no longer presence, it is what a court might infer from everything else.

📞 Call National Criminal Lawyers® on 1800 CRIM LAW
Because sometimes what you didn’t do is exactly what the law looks at.

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