Parties

Question 1

Parties to Offences - S66(1)

Legislation

Answer 1

CA61; S66:

(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

Parties to Offences - 66(2)

Legislation and example

Answer 2

CA61; S66(2):

Where two 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.

Example:
Where a person is a party to an agreed act with violence and the principal offender in carrying out the common aim does an act causing death, the secondary party is equally responsible in law for such violence.

Question 3

Parties to offences - S70(1) and (2)

Legislation

Answer 3

70 Offence committed other than offence intended

(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.
(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 4

Parties to

What you must prove

Answer 4

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

Question 5

R v Pene - Intentionally help or encourage must exist

(Ex All-Black Aaron Pene intentionally helping you to poison some pasta).

Answer 5

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

Question 6

When participation must have occurred

Answer 6

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 7

What is the difference between a principal offender and a secondary offender in ‘parties to’ offences?

Answer 7

• *Principal offender:**
• Liable under 66(1)(a) where they personally satisfy the actus reus and the mens rea requirements of the offence
• Actual participation in the offence committed has occurred
• There may be more than one offender identified as a principal offender.

Secondary offender:
People whose assistance/abetment/incitement/counselling/procurement is sufficient under S66(1)(b-d). This is despite the fact that the secondary party does not themselves commit that offence.

Question 8

Two methods by which multiple offenders may be considered to be principals - examples

Answer 8

Method 1: Each offender satisfies elements of offence committed eg, independently guilty of assault (no requirement to refer to S66 of the Act).

Method 2: Each offender separately satisfies part of the actus reus eg, 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 9

R v Renata - Principal offender

(Renata - Two people “running after” someone in order to assault them)

Answer 9

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 10

At what point would a person be considered a secondary offender, party to an offence?

Answer 10

Their acts must be earlier in time or contemporaneous with the acts of the principal offender.

Question 11

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

Answer 11

No - they would instead be liable as an accessory.

Question 12

Does or omits an act - definition

Answer 12

Act:
To take action or do something, to bring about a particular result.

Omits:
The action of excluding or leaving out someone or something, a failure to fulfil a moral or legal obligation.

*The secondary party does not necessarily have to be present when the offence is committed*

Question 13

Aid

Answer 13

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

Example: Acting as a lookout during a burglary.

Question 14

Aiding by omission

Answer 14

Where someone fails to observe or discharge a duty by exercising their control to prevent someone from committing an offence.

Question 15

Larkins v Police

(It is necessary to prove that you assisted in stealing Tom Larkin’s drums)

Answer 15

Larkins v Police

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 16

What are some examples of a person providing actual assistance to a principal offender in the commission of an offence?

Answer 16

• 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 17

Abets

Answer 17

To instigate or encourage; to urge on another person to commit an offence.

Their presence at the scene of the offence at the time is not required.

Example: R v Russell

Question 18

Ashton v Police - legal duty

(Ashton has a legal duty teaching another person in his Aston Martin to drive carefully).

Answer 18

Ashton v Police

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 19

R v Russell - Special Relationship

(Russell needs to hustle if he is to save his wife and kids from drowning).

Answer 19

R v Russell

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 20

Incite

Answer 20

To rouse, stir up, stimulate, animate, urge or spur on a person to commit an offence.

Example: A sports fan encouraging others to fight at a sports game.

Question 21

Counsels

Answer 21

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).

Example: Writing a letter to someone instructing them on how to cook methamphetamine.

Question 22

Procurement

Answer 22

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

Procurement requires that the secondary party deliberately causes the principal party to commit the offence.

Example: Procuring the services of a hitman.

Question 23

Parties to - any person

Answer 23

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

Question 24

Party to a secondary offence - S66(2) - broken down.

Answer 24

Where two or more offenders form an agreement and commit an offence together (offence A), all who entered into the agreement can be charged as parties to that offence.

Can also be charged as parties to any other offence committed (offence B) provided that other offence is known as a probable consequence.

However if one goes beyond what was agreed then the other is not liable.

Question 25

R v Betts and Ridley

(Ridley not liable for the violence used by Betts in stealing the NRL trophy).

Answer 25

R v Betts and Ridley

An offence where no violence is contemplated and the principal offender in carrying out the common aim uses violence, a secondary offender taking no physical part in it would not be held liable for the violence used.

Question 26

Probable consequence

Answer 26

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 27

What are the two qualifications to be satisfied under the general rule in relation to probable consequence?

Answer 27

Qualification one: No requirement that person A know or foresee the precise manner in which offence B is committed by person B. Person A need only realise that an offence of that type is probable.

Qualification two: No requirement to include any appreciation of the consequences of the physical elements of the offence committed (offence B), but for which no mens rea element is required.

Question 28

Under a joint enterprise, when would a person be charged as a party to murder and when would a person be charged as a party to manslaughter?

Answer 28

Party to murder if:

• They intentionally helped or encouraged it, or
• Foresaw murder by a confederate, as a real risk in the situation that arose.

Party to 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 that there was an ever-present real risk of killing.

Question 29

What is an innocent agent?

Answer 29

Someone who is unaware of their actions.

Question 30

How can you establish the involvement of parties in ‘parties to’ offences?

(Taking the RAPP).

Answer 30

• A Reconstruction of the offence committed.
• The principal offender Acknowledging that others were involved.
• A suspect or witness admitting to Providing aid or assistance when interviewed.
• Witnesses Providing evidence of others involvement.

Question 31

In what situations does a person become liable as a party to an offence under S66(1) CA61?

Answer 31

Where they:

• 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 32

What definitions and/or case laws should be included in your discussion of the liability of:

Parties?

Answer 32

Definition of intent: 2 specific types of intent; R v Collister;

Definition of commits: To put a plan of action into effect.

Definition of offence: Any act or omission that is punishable on conviction under any enactment.

Definition of does or omits an act: Act: To take action or do something, to bring about a particular result; Omission: The action of excluding or leaving out someone or something, a failure to fulfil a moral or legal obligation; R v Renata;

Definition of person: CA61 S2 - as proven by circumstantial evidence or judicial notice;

Definition of aiding: To assist in the commission of the offence, either physically or by giving advice and information; R v Pene; Larkins v Police;

Definition of abets: To instigate or encourage; to urge on another person to commit an offence; Ashton v Police;

Definition of incites: To rouse, stir up, stimulate, animate, urge or spur on a person to commit an offence;

Definition of counsels: 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);

Definition of procures: Setting out to see that something happens and taking the appropriate steps to ensure that it does;

Party to a secondary offence: CA61, S66(2); common intention; R v Betts and Ridley; probable consequence; innocent agents;