3. Parties - Legislation etc

Question 1

Who is a party to an offence?

Answer 1

A party to an offence is any person involved at any or all stages of preparing for, attempting, or actually committing an offence. This includes a person who incites or counsels another to commit the offence.

Question 2

Outline parties to offence in S66(1) CA61?

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Answer 2

(1) Every one is a party to and guilty of an offence who-
(a) Actually commits the offence; or
(b) Does or omits an act for the purpose of aiding any person to commit the offence; or
(c) Abets any person in the commission of the offence; or
(d) Incites, counsels, or procures any person to commit the offence.

Question 3

Outline parties to offence in S66(2) CA61?

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Answer 3

(2) Where 2 or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose.

Question 4

Outline offence committed other than offence intended in S70(1) CA61?

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Answer 4

(1) Every one who incites, counsels, or procures another to be a party to an offence of which that other is afterwards guilty is a party to that offence, although it may be committed in a way different from that which was incited, counselled, or suggested.

Question 5

Outline offence committed other than offence intended in S70(2) CA61?

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Answer 5

(2) Every one who incites, counsels, or procures another to be a party to an offence is a party to every offence which that other commits in consequence of such inciting, counselling, or procuring, and which the first-mentioned person knew to be likely to be committed in consequence thereof.

Question 6

What must you prove when charging a person under S66(1)?

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Answer 6

• The identity of the defendant, and
• an offence has been successfully committed; and
• the elements of the offence (s66(1)) have been satisfied.

Question 7

When is a person considered to be a party to an offence?

Answer 7

To be considered a party to the offence, participation must have occurred before or during (contemporaneous with) the commission of the offence and
before the completion of the offence.

Question 8

In relation to intention, what was held in R v Pene?

Must Know Case Law

Answer 8

A party must intentionally help or encourage - it is insufficient if they were reckless as to whether the principal was assisted or encouraged.

Question 9

Is there a distinction beween the principal offender and the secondary offender?

Answer 9

Generally, a distinction is made between the principal party (the person who actually commits the offence) and the secondary party.

Question 10

Who is the principal offender?

Answer 10

A person will be a principal offender, and liable under s66(1)(a), where he or she personally satisfies the actus reus and mens rea requirements of the offence. (There may be more than one principal offender in relation to the offence committed.)

Question 11

Who is the secondary offender?

Answer 11

Secondary parties are those people whose assistance, abetment, incitement, counselling or procurement is sufficient under s66(1)(b),(c) or (d) of the Crimes Act 1961 to make them also liable due to their participation in the offence committed by the principal(s). This is despite the fact that the secondary party does not themselves commit that offence.

Question 12

What is the first method by which multiple offenders may be considered to be principals?

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Answer 12

Each offender satisfies elements of offence committed

Each of the principal offenders may, separately, satisfy the necessary elements of the relevant offence committed, as portrayed in the example above where each of the offenders are independently guilty of an assault. In such circumstances there is no requirement to refer to s66 of the Act, despite the fact that it falls within the scope of s66(1).

Question 13

What is the second method by which multiple offenders may be considered to be principals?

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Answer 13

Each offender separately satisfies part of the actus reus

Under s66(1)(a) each offender may separately satisfy some part of the actus reus of the offence where their actions, when combined with the actions of the other person, satisfy the complete actus reus requirement of the offence.
Their actions must also be accompanied by the requisite mens rea. These situations are true representations of joint principals working together, in that it is sufficient that each party carries out part of the actus reus and as such can be held liable.

Question 14

Provide an example of the second method by which multiple offenders may be considered to be principals?

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Answer 14

An offender prepares a poison before handing it to the other offender to administer the poison. In this example both offenders share the same intent.

Question 15

In relation to distinguishiing between principal and secondary offenders what was held by the court in R v Renata?

Must Know Case Law

Answer 15

The court held that where the principal offender cannot be identified, it is sufficient to prove that each individual accused must have been either the principal or a party in one of the ways contemplated by s66(1).

Question 16

Where does liability generally lie for secondary offenders in S66(1)?

Answer 16

Those who assist the principal offender(s) either before or during the commission of an offence are considered secondary offenders and thus their liability generally lies within the scope of s66(1)(b), (c) or (d).

To be a party to an offence, the acts of the secondary offender must be earlier in time or contemporaneous with the acts of the principal offender(s).
Whether the acts are contemporaneous is dependant on the circumstances of each case.

Where the act was part of the original planning, eg providing a means of escape, then the person who committed this act would be deemed to be a principal party.

Question 17

Define act as previously discussed?

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Question 18

Define omission as previously discussed?

Question 19

Does a secondary party have to be present when the offence is committed?

Answer 19

The secondary party does not necessarily have to be present when the offence is committed. For example, a person who supplies a key or deliberately leaves a door unlocked for a burglar is a party even when they are not present at the scene when the burglary is committed.

Question 20

Define aids?

Answer 20

To aid means to assist in the commission of the offence, either physically or by giving advice and information. In order to aid, the presence of the person offering the aid is not required at the scene, before, or at the time of the offence being committed.

Question 21

In relation to the need of actual proof of assistance what was held in Larkings v Police?

Must Know Case Law

Answer 21

While it is unnecessary that the principal should be aware that he or she is being assisted, there must be proof of actual assistance.

Question 22

Provide three examples of actual assistance?

Must Know

Answer 22

• 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 23

How an a person aid a person via omission?

Answer 23

Note that it is possible to aid or abet by omission. Liability for aiding by omission will arise 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 24

Define abets?

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Answer 24

Abets means to instigate or encourage; that is, to urge another person to commit the offence. As with aiding, the presence of the abettor at the scene of the offence at the time of its commission is not required.

Question 25

Provide an example of abets?

Answer 25

A woman discovers her same sex marriage partner with another person. A fight breaks out between the woman and the other person. While the fight continues the partner encourages the other person to kill her same sex marriage partner.

Question 26

Can passive acquiesence be considered abetting?

Answer 26

Similar to “aiding by omission”, discussed above, abetting or encouragement may take the form of passive acquiescence where there is a duty to act. Merely being present at the scene of an offence and witnessing the offence while doing nothing to prevent it does not create liability on the part of that person unless, in the circumstances, there is a special relationship between that person and the principal offender or where they owe a legal duty to the victim or to the general public.

Question 27

How is having a legal duty applicable to been a party?

Answer 27

The special relationship is also dependant on the person who would be a secondary party having a legal duty to act and a right or power of control over the principal offender.

Question 28

In relation to legal what was held in Ashton v Police?

Must Know Case Law

Answer 28

An example of a secondary party owing a legal duty to a third person or to the general public is a person teaching another person to drive. That person is, in New Zealand, under a legal duty to take reasonable precautions, because under s156 of the Crimes Act 1961 he is deemed to be in charge of a dangerous thing.

Question 29

How is a special relationship applicable to been a party?

Answer 29

Where there is a special relationship and no intervention on the part of the person who would be a party, then this might amount to approval and encouragement of the principal offender’s actions

Question 30

In relation to a special relationship what was held in R v Russell?

Must Know Case Law

Answer 30

The court held that the accused 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.

Question 31

In what circumstances can inciting, counselling or procuring take place?

Answer 31

They take place before the offence is in fact carried out, and generally does not warrant the attendance of the inciter, counsellor or procurer at the scene, at the time of the incident. However such a person’s involvement may continue on to a point where they are in fact present at the scene of the incident.

Question 32

Define incites?

Must Know

Answer 32

To incite means to rouse, stir up, stimulate, animate, urge or spur on a person to commit the offence

Question 33

Define counsels?

Must Know

Answer 33

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.

It is not necessary that the counsellor knows the clear detail in respect of the offence to be committed

Question 34

Define procures?

Must Know

Answer 34

Procurement is setting out to see that something happens and taking the appropriate steps to ensure that it does.

“Procures” requires 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 than is evidenced in aiding, abetting or inciting.

Question 35

Define person?

Must Know

Answer 35

Any person carries its natural meaning and in relation to parties means any other person.