3. Parties

Question 1

**4. What was held in the case of R v Russell?

Answer 1

• The defendant was charged with the murder of his wife and two sons. Following an argument between he and his wife, the wife, in the presence of the defendant, allegedly jumped into a swimming pool with both children, drowning them all. The defendant failed to render assistance to his wife or their children. The court held that the defendant was morally bound to take active steps to save his children, but by his deliberate abstention from so doing, and by giving the encouragement and authority of his presence and approval to his wife’s act he became an aider and abettor and thus a secondary offender: R v Russell (1933) VR 59.

Question 2

**3. How might the involvement of parties be established?

Answer 2

• A reconstruction of the offence committed, this would indicate that more than one person was
involved, or that the principal offender had received advice or assistance.

• The principal offender acknowledging or admitting that others were involved in the
offence.

• A suspect or witness admitting to providing aid or assistance when interviewed.

• A witness providing you with evidence of another person’s involvement based on their
observations.

• Receiving information indicating that others were involved in the offence.

Question 3

**2. What is the distinction between ‘aiding and abetting’ and ‘inciting, counselling and procuring?’

Answer 3

• In general terms, ‘aiding and abetting’ requires the aider or abettor to be present at the scene before or at the time of the offence being committed, whereas ‘inciting, counselling and procuring’ describe the actions taken before the offence is carried out.

Question 4

**1. In what situation does a person become liable as a party to an offence under 66(1) of the CA 1961?

Answer 4

• Actually commit the offence.
• Do or omit an act for the purpose of aiding any person to commit an offence.
• Abet any person in committing an offence.
• Incite, counsel or procure any person to commit an offence.

Question 5

you cannot charge a person as a secondary offender in agg rob. Why?

Answer 5

The collective element of being together with any other person displaces 66(1)

Question 6

Can a person be a secondary party to an offence for which she could not herself commit?

Answer 6

Yes

Question 7

If the driver of a vehicle is acquitted, can another person be convicted as a party?

Answer 7

no

Question 8

Can a person be charged as a secondary party to an offence where the primary offender has not been located?

Answer 8

Yes

Question 9

**What is the time limit associated with charging a person as a secondary party?

Answer 9

Same as the principal offender

Question 10

Investigative procedure- the involvement of parties may be established by:

Answer 10

• A reconstruction of the offence committed. This would indicate that more than one person was involved, or that the principal offender had received advice or assistance.
• The principal offender acknowledging or admitting that others were involved in the offence
• A suspect or witness admitting to providing aid or assistance when interviewed
• A witness providing you with evidence of another person’s involvement based on their observations
• Receiving information indicating that others were involved in the offence

Question 11

What is an innocent agent?

Answer 11

Someone who is unaware of the significance of their actions

Question 12

Joint enterprise, murder or manslaughter. A person will be charged with manslaughter where they:

Answer 12

• Knew that at some stage there was a real risk of killing short of murder, or
• Foresaw a real risk of murder, but the killing occurred in circumstances different from those contemplated, or
• Can be expected to have known there was an ever present real risk of killing

Question 13

**Joint enterprise, murder or manslaughter. A person will be charged with murder if they:

Answer 13

• Intentionally helped or encouraged it or

- Foresaw murder by a confederate, as a real risk in the situation that arose.

Question 14

There are two qualifications to be satisfied under the general rule in relation to probable consequence:

Answer 14

1: There is no requirement that person A knows or foresees the precise manner in which offence B is to be committed by person B. Person A need only realise that an offence of that type is probable.
2: There is no requirement that person A’s foresight of offence B include any appreciation of the consequences of the physical elements of the offence committed (offence B) for which no mens rea element is required

Question 15

Who decides if something was a probable consequence?

Answer 15

The jury. It is a question of fact

Question 16

Anthony and Charlie agree to an act of violence. Anthony wants to be violent but doesn’t expect to kill anyone. Charlie loses the plot and kills the victim. What is Anthony liable for?

Answer 16

Party to murder

Question 17

If one of the parties goes beyond what was agreed then are the other parties liable for the consequence of this?

Answer 17

no

Question 18

Common intention: If Party A does an offence intending to do Offence A, but Party B does offence B which is a probable consequence, is Party A liable?

Answer 18

yes

Question 19

What does “procure” require?

Answer 19

That the secondary party deliberately causes the principal party to commit the offence. It requires a stronger connection between the secondary party and the commission of the offence that is evidenced in aiding, abetting or inciting

Question 20

What does procures mean?

Answer 20

Setting out to see that something happens and taking the appropriate steps to ensure that it does

Question 21

What does counsel mean?

Answer 21

Counsels means to intentionally instigate the offence by advising a person(s) on how best to commit an offence, or planning the commission of an offence for another person(s). Counselling may also mean “urging someone to commit an offence”, in which case it will overlap with incitement.

Question 22

What does incite mean?

Answer 22

To incite means to rouse, stir up, stimulate, animate, urge or spur on a person to commit the offence. For example, a sports fan spurs on another fan to assault a protester and yells approval while the offence takes place.

Question 23

To incite, counsel or procure do you need to be at the scene?

Answer 23

no

Question 24

Liability for aiding by omission will arise when:

Answer 24

Where A, who has a legal duty to act and a right or power of control over B,

fails to observe or discharge the duty by exercising that control

to prevent B committing an offence

Question 25

What are the three categories that enable someone to be convicted as a party?

Answer 25

• Incites
• Counsels
• Procures

Question 26

An army sergeant watches a subordinate assault another person and does nothing to prevent it is liable for?

Answer 26

Secondary party to assault

Question 27

An army sergeant watches a subordinate assault another person and does nothing to prevent it is liable for?

Answer 27

Secondary party to assault

Question 28

Merely being present at the scene of an offence and witnessing the offence while doing nothing to prevent it does not create a liability on the part of the person unless

Answer 28

In the circumstances there is a special relationship between the person and the principal offender or where they owe a legal duty to the victim or general public

Question 29

What is abets?

Answer 29

Means to instigate or encourage. That is, to urge another person to commit the offence.

Question 30

What are some examples of providing assistance?

Answer 30

• Keeping lookout for someone committing a burglary
• Providing a screwdriver to someone interfering with a motor vehicle
• Telling an associate when a neighbour is away from their home so as to allow the opportunity to commit a burglary

Question 31

Does the principal party need to agree on the assistance in order for a conviction?

Answer 31

no

Question 32

Is it necessary for the principal party to be aware of the fact they are being assisted by a secondary party?

Answer 32

no

Question 33

Define aid

Answer 33

To assist in the commission of the offence, physically or by giving advice and information

Question 34

Give an example of a secondary offender who is not present

Answer 34

A security guard deliberately leaving a door unlocked for a burglary

Question 35

Can a person be convicted as a party for an offence that is already complete?

Answer 35

No, they would be liable as an accessory

Question 36

There are two methods by which multiple offenders may be considered to be principles. Describe them:

Answer 36

Method 1: Each offender satisfies elements of offence committed
Method 2: Each offender separately satisfies part of the actus reus

Question 37

Explain ‘actually commits the offence’ in terms of 66(1)(a)

Answer 37

661 a refers to situations where there has been actual participation of principal offenders in the offence committed. There may be more than one offender identified as a principal offender, e.g. where two people actively assault a third offender

Question 38

Define secondary party

Answer 38

Those people whose assistance, abetment, incitement, counselling or procurement is sufficient under 66)1) b c or d to make them also liable due to their participation in the offence committed by the principal. This is despite the fact that the secondary party does not themselves commit that offence.

Question 39

Can there be more than one principal offender?

Answer 39

yes

Question 40

Define principal party

Answer 40

Liable under 66 1 a, where he or she personally satisfies the actus reus and mens re

Question 41

To be considered party to an offence, participation must have occurred ?

Answer 41

before or during the commission of the offence and before the completion of the offence.

Question 42

What needs to be proved for parties to?

Answer 42

• The ID of the defendant
• An offence has been successfully committed
• The elements of 66(1) have been satisfied

Question 43

Define aid

Answer 43

To assist in the commission of the offence, physically or by giving advice and information