Parties

Question 1

Parties to Offences
Section 66(1), Crimes Act 1961

Answer 1

Everyone is a party to and guilty of an offence who:

a) Actually commits the offence
b) Does or omits an act for the purpose of aiding any person to commit the offence
c) Abets any person in the commission of an offence
d) Incites, counsels, or procures any person to commit the offence

Question 2

What must be proved for Parties?

Answer 2

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

Question 3

When participation must occur?

Answer 3

Before or during (contemporaneous with) the commission of the offence and before the completion of the offence

Question 4

R v Pene - Intention to Help/Encourage

Answer 4

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

Question 5

Principal Party

Answer 5

Where they personally satisfy the actus reus and mens rea requirements of the offence. There may be more than one principal offender.

Question 6

Secondary Party

Answer 6

Are those people whose assistance, abetment, incitement, counselling or procurement is sufficient. This is despite the fact that the secondary party does not themselves commit the offence.

A Secondary Party does not necessarily have to be present when the offence is committed.

Question 7

Multiple Offenders

Answer 7

Method 1: Each offender seperately satisfies the necessary elements of offence committed.

Method 2: Each offender may separately satisfy some parts of the acts reus. Where their actions when combined with the actions of the other person satisfy the complete actus reus requirements of the offence. Both having the necessary mens rea.

Question 8

R v Renata - Multiple Offenders

Answer 8

The court held 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 9

Secondary Offenders

Answer 9

Those who assist a principal offender, either before or during the offence, liability generally lies within the scope of s66(1)(b), (c), or (d).

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

Question 10

Aids

Answer 10

To assist, either physically or by giving advice or information. There is no requirement that the principal agreed to said assistance.

Examples of assistance:

• Keeping lookout for someone
• Providing a screwdriver to steal a vehicle
• Telling an associate when a neighbour is away as a burglary opportunity

Question 11

Larkins v Police - Assistance

Answer 11

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

Question 12

Abiding by Omission

Answer 12

Where A 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 from committing an offence.

Question 13

Abets

Answer 13

Instigate or encourage. As with aiding, the presence of the abettor at the scene of the offence at the time of its commission is not required.

Deliberate presence, intended to signify approval of the acts of the principal will support an inference of encouragement in fact.

Question 14

Passive Acquiescence

Answer 14

Where 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.

The special relationship is 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 15

Ashton v Police - Legal Duty

Answer 15

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 16

R v Russell - Special Relationship

Answer 16

The court held that the accused was morally bound to take active steps to save his children, but by his deliberate abstention from doing so, and by giving 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 17

Incites, Counsels or Procures

Answer 17

Must take place before the offence is carried out, and generally does not warrant the attendance of the inciter, counsellor or procurer at the scene at the time of the offence.

Incites - rouse, stir up, stimulate, animate, urge or spur on

Counsels - intentionally instigate, urging someone. No specific need for the person offering advice or assistance to be completely familiar with the offence.

Procures - setting out to see that something happens, taking the appropriate steps to ensure it does. It requires the secondary party deliberately causes the principal party to commit the offence. Example - fraud, persuasion, words or conduct.

Question 18

Parties to Offences
Section 66(2), Crimes Act 1961

Answer 18

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 19

Common Intention

Answer 19

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

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

Question 20

R v Betts & Ridley - Common Intention

Answer 20

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 21

A Question of Fact

Answer 21

Whether a defendant knew that furthering their common aim in a particular way would probably result in another of the parties committing a particular offence

Question 22

Probable Consequence

Answer 22

It is sufficient where it can be demonstrated that they knew there was a substantial or real risk or that offence could well happen.

Qualification 1 - There is no requirement that person A knows or forsees 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.

Qualification 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, but for which no mens rea is required.

Question 23

Joint Enterprise - Murder or Manslaughter

Answer 23

Murder

• Intentionally helped or encouraged it, OR
• foresaw a murder by a confederate as a real risk in the situation that arose

Manslaughter

• 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
• Can be expected to have known there was an ever-present real risk of killing

Question 24

Establishing Involvement of Parties

Answer 24

• A reconstruction of the offence committed
• A principal admitting or acknowledging others were involved
• A suspect or witness admitting or providing information or assistance when interviewed
• A witness providing evidence of another involvement based on observations
• Receiving information indicating that others were involved

Question 25

General Points

Answer 25

• A person is capable of conviction as a secondary party to an offence that has been committed, whether or not police have located or charged the principal
• Where the principal cannot be convicted due to infancy, insanity or death, a secondary party may still be convicted
• Where there are two or more persons who are parties, each is an accomplice of the other and as such can be convicted on uncorroborated evidence of the other, although it is unwise to do so

Question 26

General Points Continued

Answer 26

• Any person who has been a party to the completed offence is considered a party to any attempt carried out in circumstances where the substantive offence was unsuccessful.
• An accomplice can be convicted of a lesser offence that the one that the principal offender is convicted of.
• In R v Pink it was found that a secondary party to an offence may escape liability by a timely and effective withdrawal before the commission or attempt of the offence