Parties

Question 1

What is a party to an offence

Answer 1

Anyone who is involved at all stages of an offence of preparing, attempting or committing the actual offence. Also includes people who incite or counsels another to commit an offence

Question 2

Parties to
s66

Answer 2

(1)
a) actually commits an 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 the offence
d) incites, counsels or procures any person to commit the offence

2) where 2 or more people form a common intention to prosecute any unlawful purpose, each of them is party of every new offence committed during the prosecution of their common purpose if that commission of that offence was known to be a probably consequence of the prosecution of the common purpose

Question 3

Three points to prove for charging a person as a party to an offence

Answer 3

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

Question 4

When must participation have occurred to be in a party of an offence?

Answer 4

Being or during the commission of the offence and before the completion. If it is after then it is an accessory

Question 5

R v PENE

[Any penny intentionally helps]

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

What is a principal offender

Answer 6

One where the actus and mens rea is satisfied and liable under 66(1)(a)

Question 7

What is a secondary offender/party

Answer 7

One that assist, abets, incites, counsels or procures and offence. Essentially satisfies 66(1)(b)(c)(d).

This is before or during the offence contemporaneously

If the act was part of the planning then they would be liable to be the principal party. EG a get away driver

Question 8

Define abets and does the person abetting need to be present?

Answer 8

Abets means to instigate or encourage - to urge another person to commit the offence.

No need to be present

Question 9

What are the two methods where multiple offenders can be the principal offender

Answer 9

1) Each offender satisfies the elements of the offence

2) Each offender separately satisfies part of the actus. When each part of the actus reus is combined completes the offence.

EG. A gives poison to B who will administer to the victim

Question 10

R v RENATA

Answer 10

The court held that where the principal offender can’t 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 66(1)

Question 11

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

Answer 11

No

Question 12

Define aid and does the person need to be present?

Answer 12

Means to assist in the commission of an offence either physically or by giving advice or information. Does not need to be present at the time or during the commission of the offence.

Question 13

What is aiding by omission?

Answer 13

Person A will have legal duty to act and right or control over person B. However fail to observe or discharge a legal duty by exercising control to prevent B from offending

Question 14

Police v LARKINS

[Larkins is a lack of assistance]

Answer 14

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 15

How important is proving assistance was actually provided? Example of providing assistance

Answer 15

It is essential to prove assistance was actually provided as per P v LARKINS.

EG
keeping a lookout for someone doing a burg
providing a screwdriver for someone stealing a car
giving info that a neighbour is away from home so the offender does a burg

Question 16

Define abets and does the person abetting need to be present?

Answer 16

Abets means to instigate or encourage - to urge another person to commit the offence.

No need to be present

Question 17

What is passive acquiescene?

Answer 17

Is when a person is present the scene of an offence and does nothing is not necessarily a liability unless there is a special relationship between the secondary party and principal offender or where they owe a legal duty to the victim or member of the public

Question 18

Legal duty in partys. Give two examples

Answer 18

Police v ASHTON
An example of a secondary party owning a legal duty to a third person or to the general public is a person teaching another person to drive. That person is in NZ, under a legal duty to take reasonable precautions and is deemed to be in charge of a dangerous thing

Another example would be an army sergeant who watches as a subordinate assaults another person and does nothing about it would be a secondary party to the assault. This is because the sergeant has a power of control over the subordinate and has a lawful duty to prevent and intervene.

Question 19

Police v ASHTON
[Ashton ave - driving around - person teaching to drive]

Answer 19

An example of a secondary party owning a legal duty to a third person or to the general public is a person teaching another person to drive. That person is in NZ, under a legal duty to take reasonable precautions and is deemed to be in control of a dangerous thing

Question 20

What amounts to encouragement of the principal offenders actions?

Answer 20

When there is a special relationship and there is no intervention on the part of the person by a person who would be a party to, then this might amount to encouragement of the principal offenders actions.

Question 21

R v RUSSELL

[Russell - bay of islands - lots of water to swim - swimming pool drowning]

Answer 21

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 the encouragement and authority of his presence and approval to his wifes act he became an aider and abettor and thus a secondary offender

Question 22

When is Incites, counsels and procures 66(1)(d) usually committed and does that person usually need to be present?

Answer 22

Usually done prior to the offence committed and that person is usually not present

Question 23

Define incites and give an example

Answer 23

Means to rouse, stir up, urge or stimulate a person to commit an offence.

eg. sports fun inciting another fan to beat up a protestor

Question 24

Define counsels

Answer 24

Advising a person on best how to commit an offence or planning the commission of an offence for another person

It’s sufficient that they know an offence will be committed and does not need to know the details such as target address and name of intended victim

Question 25

Define procures and give eample

Answer 25

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

Requires that person to deliberately cause the principal party to commit the offence.

EG. woman obtains the services of a hitman to kill her husband and offer money or sexual service as payment

Question 26

Parties to a secondary offence
66(2)

Answer 26

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

Question 27

Example of a common intention

Answer 27

Beets and Ridley decided to rob a man from the bank. Ridley is the getaway drive and Beets struck the man so hard that he died. Both were convicted of murder.

Case law R v Beets and Ridley

Question 28

R v BEETS and RIDLEY

Answer 28

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

Question 29

Who decides if a defendant knows that another person in his party would commit another offence in the commission of their first offence

Answer 29

The jury based on the facts

Question 30

What is probable consequence?

Answer 30

It is a subjective appreciation by offender A, where they must foresee that there is a likelihood that their co-offender B will commit another offence when committing the original offence that was agreed by both parties.

Offender A should know that there is a substantial or real risk or that the secondary offence could well happen

Question 31

What happens if offender A thinks that the risk that offender B will commit another offence is low or negligible?

Answer 31

Lacking the mens rea

Question 32

What are the two qualifications under the general rule in relation to probable conseqence?

Answer 32

1) There is no requirement that person A foresees the exact manner in which person B will commit offence B. Person A only needs to realise offence B is probabale

2) No requirement that persons A foresight of offence B include any appreciation of the consequences of the physical elements of the offence committed, ut for which no mens rea element is required

Question 33

Joint enterprise for murder, will be guilty if:

Answer 33

• intentionally helped or encouraged it
• foresaw murder by a confederate (agreement), as a real risk in the situation that arose

Question 34

Joint enterprise for manslaughter, will be guilty if:

Answer 34

• knew that at some stage there was a real risk of killing short of murder
• 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 35

What is an innocent agent and give an example

Answer 35

Someone who is unaware of the significance of their actions.

They can not be convicted as a secondary party

EG. offender puts poison in a glass of wine and an unsuspecting waiter gives the wine to the victim

Question 36

What could cause a person to be an innocent agent?

Answer 36

• age
• mental state
• ignorance of the acts

Question 37

How to investigate to see that there was a party to an offence

Answer 37

• reconstruction of the offence
• principal offender admitting there were others involved
• suspect admitting they provided aid
• witness providing evidence that there was another persons involvement from their observation
• receiving information indicating that others were involved in the offence

Question 38

Prosecution for parties

Answer 38

• a secondary party can still be charged even if the principal offender has not been located, charged or convicted
• a secondary party can still be charged if the principal is not due to infancy, insanity or death
• if an offence can only be committed by a person of a designated class such as a vehicle driver, if the person is found acquitted then no one can
  be convicted of a secondary party
• a person is able to be convicted as a secondary party if even they are physically unable to. IE. giving advise how to rob a place by a quadriplegic
• a person can be party to a completed offence even if the offence was unsuccessful
• secondary party to an offence may escape liability if they withdraw in a timely manner prior to the offence