Parties

Question 1

Parties to an offence legislation wording

Answer 1

Section 66, Crimes Act 1961

(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 2

What you need to prove for parties to

Answer 2

In each case of charging a person with being a party to an offence, you must prove:
• The identity of the defendant, and
• an offence has been successfully committed; and
• the elements of the offence (s66(1)) have been satisfied.

Question 3

When participation must have occurred for parties to

Answer 3

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.

Someone who provides assistance to either the principal or secondary offender following the commission of an offence becomes an accessory after the fact. They have not actively participated in the offence committed and their liability is not for the original offence committed, but instead comes about as an offence under s71 and s312 of the Crimes Act 1961. (Accessory after the fact is discussed within this module).

Question 4

Who is the principal party

Answer 4

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 5

Who is the Secondary party

Answer 5

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 6

Two methods offenders can be considered

Answer 6

Method 1: 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).

Method 2: 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 7

Aids meaning

Answer 7

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.

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 8

Abets meaning

Answer 8

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 9

Incites meaning

Answer 9

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 10

Counsel meaning

Answer 10

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 11

Procures meaning

Answer 11

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.

Procurement may be carried out by fraud, persuasion, words or conduct, such as an offer of payment.

Question 12

Party to a secondary offence

Answer 12

Section 66, Crimes Act 1961
(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 13

Common intention for secondary offence

Answer 13

In situations where two or more offenders form a common intention (an agreement) and embark on a joint enterprise (commit an offence) together, for example a robbery (offence A), all who entered into the agreement can be charged as parties to that offence (offence A).

They can also be charged as parties to any other offence (offence B) that any one of them commits in order to assist in the commission of the offence originally agreed to (offence A), provided that the other offence (offence B) is known to be a probable consequence of the prosecution of their common purpose (offence A).

This extends to include any unusual consequences that arise from pursuing the jointly intended offence (offence A). However, where one of the offenders goes beyond what was agreed then the other(s) is not liable for the consequences of the unauthorised act (offence B).

Question 14

Probable consequence for parties to secondary offence

Answer 14

Whether an outcome is ‘known to be a probable consequence’ is a subjective appreciation on the part of the offender (person A), where they must actually foresee the likelihood that their co-offender (person B) will commit another offence (offence B) when committing the original offence (offence A) agreed by both parties.

Question 15

Joint enterprise – murder or manslaughter

Answer 15

A person charged as a party to murder will be guilty of:
Murder, where they:
• intentionally helped or encouraged it, or
• foresaw murder by a confederate, as a real risk in the situation that arose.

Manslaughter, where they:
• 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 16

Innocent agents

Answer 16

Innocent agents are sometimes used by the offenders. An innocent agent is someone who is unaware of the significance of their actions.

In cases where the offenders use an innocent agent to bring about the actus reus, the innocent agent is not regarded as a participant in the offence, they are simply the mechanism. The law treats the offender as the principal in such cases.

An innocent agent cannot be convicted as a secondary party.

Question 17

Establishing involvement of parties for investigation

Answer 17

The involvement of parties may be established by:
• 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 18

When can a person be convicted for parties to

Answer 18

• A person is capable of conviction as a secondary party to an offence that has been committed, whether or not police have located, charged or convicted the principal.
• Where the principal cannot be convicted due to infancy, insanity or death a secondary party may still be convicted.
• In cases where an offence is only capable of being committed by a person of a designated class, such as a motor vehicle driver, and where that person has been acquitted of a charge, no other person is able to be convicted as a secondary party.
• A person may be convicted as a secondary party to an offence for which he or she could not, themselves, commit. The limitation may be by reason of sex, age, or some other qualification or status and thus they are held to be incapable of actually committing the offence in terms of s66(1)(a). However such a person can be guilty of such an offence as a secondary party, such as a quadriplegic offering advice and information on how to commit a robbery being physically incapable of committing the offence.
• Any person who would have been a party to the completed offence is considered a party to any attempt carried out in circumstances where the substantive offence was unsuccessful.
• Every party to an offence (who is not the principal), may be proceeded against and convicted of that offence, either together with the principal or before or after the principal is convicted of the offence.

Question 19

Punishment for parties to

Answer 19

Section 311(2), Crimes Act 1961
Attempt to procure commission of offence
(2) Every one who incites, counsels, or attempts to procure any person to commit any offence, when that offence is not in fact committed, is liable to the same punishment as if he had attempted to commit that offence, unless in respect of any such case a punishment is otherwise expressly provided by this act or by some other enactment.