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Association Offences > Parties > Flashcards

Parties Flashcards

1
Q

Who is party to and guilty of an offence? (Must know)

A

Every one who:
- Actually commits the offence
- Does or omits an act for the purpose of aiding any person to commit the offence
- abets any person in the commission of the offence
- Incites, counsels or procures any person to commit the offence

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2
Q

What section is parties?

A

s66

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3
Q

What does s66(2) state about parties? (Must know)

A

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

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4
Q

What does s70(1) state about a party who incites, counsels or procures another?

A

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

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5
Q

What does s70(2) state about a party who incites, counsels or procures another?

A

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 they knew to be likely to be committed as a consequence.

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6
Q

What must you prove to show someone is party to an offence?

A
  • The identity of the defendant
  • The offence has been successfully committed
  • The elements of s66(1) are satisfied.

Where there is more than one offence committed, the elements must be applied to each offence separately.

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7
Q

For someone to be party to an offence, when must their participation have occurred?

A

Before or during the commission on the offence, not after (this would be an accessory after the fact)

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8
Q

What does R v Pene state? (Must know)

A

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

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9
Q

What is the principal party? (Must know)

A

They personally satisfy the actus reus and mens rea requirements of the offence.

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10
Q

Can there be more than one principal party?

A

Yes

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11
Q

What is a secondary party? (Must know)

A

People whose aid, abatement, incitement, counselling or procurement is sufficient under s66(1) Crimes Act to make them liable due to their participation in an offence committed by the principal party(s).

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12
Q

What are the two methods by which offenders may be considered principal parties?

A

1 - Separately each offender satisfies the elements of the offence committed
2 - Each offender has the required mens rea but separately satisfies some part of the actus reus, which when combined satisfies the full elements of the offence

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13
Q

If principal parties to an offence both separately satisfy the elements of an offence, do you refer to s66(1)?

A

No

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14
Q

If principal parties to an offence separately satisfy part, but not all, of the full actus reus of an offence, do you need to refer to s66(1)?

A

Yes

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15
Q

What is R v Renata (Must know)

A

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)

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16
Q

What type of party is someone who provides a means of escape?

A

A principal party

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17
Q

When someone is part of the original planning, what type of party are they?

A

A principal party

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18
Q

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

A

No

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19
Q

Defines Aids for a party offence (Must know)

A

Assist in the commission of the offence, either physically or by giving advice or information.

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20
Q

Does a principal party need to be aware a secondary party is aiding them?

A

Although ideal, no they don’t need to be aware a secondary party is assisting them

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21
Q

Does a principal party need to agree to the assistance of a secondary party for the secondary party to be liable?

A

No

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22
Q

What does R v Larkins state? (Must know)

A

While it is not necessary that the principal should be aware that they are being assisted, there must be proof of actual assistance

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23
Q

Is it possible for a secondary party to aid a principal party by omission?

A

Yes, if the secondary party has a legal duty to act and a right or power over the principal, and they fail to observe or discharge that duty

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24
Q

Define abets for party to an offence? (Must know)

A

To instigate or encourage, that is to urge another person to commit the offence.

25
Q

Discuss presence at an offence as it relates to “abets”under s66 CA 1961

A

Mere presence by itself, which does not encourage, is insufficient. However, deliberate presence, intended to signify approval of the acts of the principal will support an inference of encouragement.

26
Q

Discuss whether passive acquiescence may be considered abetting

A

Passive acquiesce may amount to abating where a party has a legal duty to act and a right or power over the principal, and they fail to observe or discharge that duty

27
Q

Discuss Ashton v Police (Must know)

A

An example of a secondary party owing a legal duty to a third person or to the general public is a person teaching another to drive. That person is under a legal duty to take reasonable precautions.

28
Q

What does R v Russell state in relation to party to an offence? (Must know)

A

Special relationship - The accused was morally bound to take steps to save his children, but by deliberately not doing so, and by giving the encouragement and authority by his presence to his wife’s act, he became and aider and abetter and thus a secondary offender.

29
Q

When does incites, counsels or procures take place in relation to the execution of an offence? (Must know)

A

Before the offence is carried out

30
Q

Define incite (Must know)

A

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

31
Q

Define counsels (Must know)

A

Intentionally instigate the offence by advising how best to commit the offence, or planning the commission of an offence for the other person.

It may also mean urging someone to commit an offence, in which it overlaps with incite.

32
Q

Does someone who counsels a principal offender need to know the clear detail in respect of the offence?

A

No, it is sufficient they know than an offence of that kind was intended

33
Q

Define procures (Must know)

A

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

They must deliberately cause the principal party to commit the offence which is a stronger connection than aiding, abetting or inciting.

34
Q

Give examples of how a party to an offence may procure any person to commit an offence?

A
  • fraud
  • persuasion
  • words and conduct
  • offer of payment
35
Q

What is R v Betts and Ridley

A

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 liable for the violence used

36
Q

Who decides whether a defendant knew that furthering their common aim would probably result in another party committing a particular offence?

A

It is a question of fact, so the jury

37
Q

Is probable consequence unders s66(2) a subject or objective test? Discuss

A

Whether something is “known to be a probable consequence” is a subjective appreciation on the part of the accused, where they must actually foresee the likelihood that their co-offender will commit another offence when prosecuting the original unlawful purpose

38
Q

What is sufficient to prove probable consequence as it relates to s66(2)?

A

There was a substantial or real risk that the secondary offence could well happen

39
Q

For probable consequence under s66(2), what are the two qualifications?

A

1- They need not know or foresee the precise manner of the secondary offence, they need only realise an offence of that type is probable
2 - There is no requirement the appreciate the consequences of the physical elements of the offence committed

40
Q

When will a person charged as a party to murder be guilty?

A

Where they:
- Intentionally helped or encouraged it, or
- Foresaw murder by a confederate as a real risk of the situation that arose

41
Q

When will a person charged as a party to manslaughter be guilty?

A

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 know there was an ever-present real risk of killing

42
Q

What is an innocent agent and can they be party to an offence? (Must know)

A

They are an unknowing mechanism of the actual party(s) to the offence. They are someone who in unaware of the significance of their actions.

43
Q

How will the involvement of parties to an offence be established? (Must know)

A
  • Reconstruction of the offence committed which indicated more than one person involved.
  • Principal offender acknowledges/admits that others were involved
  • A suspect or witness admits to providing assistance when interviewed
  • A witness providing you with evidence of another involvement
  • Receiving information indicating that others were involved in the offence
44
Q

What are the time limits for prosecuting a secondary party to an offence?

A

They are the same as any time restrictions on the primary principal party

45
Q

Can a secondary party be charged if a principal party has not been located, charges or convicted?

A

Yes

46
Q

Can a secondary party still be charged when the principal cannot be convicted due to infancy insanity or death?

A

Yes

47
Q

Where two people are parties to an offence, can they be convicted on uncorroborated evidence of the other party?

A

Yes as they are accomplices to each other, although it is unwise to do so

48
Q

Where an offence is only able to be committed by a person of a designated class and the accused is acquitted of that charge, can a secondary party still be charged?

A

No

49
Q

Can a person be convicted of being a secondary party to an offence which they themselves could not commit?

A

Yes

50
Q

Where an offence is attempts, but unsuccessful, can all parties to it still be charged?

A

Yes they may all be charges for the attempt

51
Q

Do you need to proceed against secondary and principal parties simultaneously?

A

No, you may proceed against a secondary party either together wither the principal, or before or after the principal is convicted of the offence

52
Q

Can a secondary offender be convicted of a lesser offence than the one the principal offender is convicted of?

A

Yes

53
Q

How can a secondary party escape liability as a party to an offence?

A

Timely and effective withdrawal before the commission of an offence.

54
Q

Can secondary liability apply to aggravated robbery (together with other persons)?

A

No as the elements of this offence displace s66(1)

55
Q

How do you format charge wording for a secondary party?

A

Same as the principal party prefaced with with “was a party to” AND at the end add”in that you aid OR abet OR Incite OR counsel OR Procure the commission of the said offence”.

56
Q

Is it necessary to include the suggested wording for s66(1) if it is known the defendant is a party, not sole, offender?

A

No but it is best to. Otherwise the prosecutor can advise the court he defendant is charged as a party before the summary of facts is read in a guilty plea for before evidence is heard in trial

57
Q

What punishment is a secondary party liable to?

A

The same as the principal party

58
Q

How do you word a charge under s66(2)?

A

The same as for a principal offender

59
Q

Where there is a specific offence of aiding, abetting etc for a particular charge, how should you charge such an offender?

A

Under the specific section which applied, not using s66.

Association Offences (7 decks)

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