Parties Flashcards
Legislation s66 C.A 61
1) everyone is party to & guilty of offence who -
A- actually commits offence
B- does/omits an act for purpose of aiding any person to commit offence
C- abets any person in commission of offence
D- incites, counsels, procures any person to commit
2) where 2 or more form common intention for any unlawful purpose & assist each other. Therein each is party of every offence committed by any one of them.
Legislation s70 C.A 61
1) everyone who incites, counsels, procures another to be party to offence, which the other is afterwards guilty, is party to offence, although may be different from way in which incited, counselled or suggested.
2) Everyone who incites, counsels, procures another to be party to, is party to every offence the other commits in consequence
What needs to be proved
- Defendant identity
- offence was successfully committed
- elements of the offence (s66(1)) satisfied.
Where more than one offence committed, elements of each offence is applied separately.
R v Pene
Party must intentionally help or encourage, it is insufficient if they were reckless as to whether assisted or encouraged.
Principal party
Liable under s66(1)(a) where personally satisfies the actus reus & mens rea requirements of the offence.
There may be more than one principal party.
Secondary party
People who’s assistance, abetment, incitement, counselling or procurement is sufficient under s66(1)(b),(c),(d) of C.A 61, make them liable due to participation in offence committed, despite not committing offence themselves.
Doesn’t necessarily have to be present when the offence committed.
Actually commits
s66(1)(a) refers to where actual participation of primary offenders in offence committed. May be more than one offender identified.
Multiple offenders - two methods
Method 1 - each party individually satisfies all required elements.
Method 2 - under s66(1)(a) each party may satisfy part of actus reus and combined actions satisfy satisfy complete actus reus. Actions must also satisfy mens rea
R v Renata
Where principal offender cannot be identified it is sufficient to prove each individual accused have been either principal or party to in one of the ways outlined by s66(1)
Aids
To assist in commission of offence either physically or by giving advice or information. Presence of the person offering aid is not required at the scene before or during commission of offence.
Larkins v Police
While unnecessary that principal should be aware, they are being assisted, There must be proof of actual assistance.
Examples of assistance
- Keeping lookout.
- Providing a screwdriver.
- Telling in associate when neighbours are away.
Aid by omission
Where a legal duty to act and a right or power to stop the commission of the offence and fail to do so.
Abets
To instigate or encourage. That is to urge another person to commit the offence. The presence of the abettor at the scene at the time of the commission is not required.
Passive acquiescence
Maybe considered abetting.
to aiding by omission. Abetting or encouragement may take form of passive acquiescence with as a duty to act. Merely being present and witnessing does not create liability unless in the circumstances there is a special relationship to the principal offender where a legal duty to the victim or general public.
Legal duty
Special relationship is also dependent 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.
Ashton v Police
An example of secondary party owing a legal duty to third-party or general public as a person teaching another to drive. In NZ person is under a legal duty to take reasonable precautions. Under S156 of C.A 61 is deemed in charge of a dangerous thing.
Special relationship
Where a special relationship And no intervention on the part of the person who would be a party, might amount to approval and encouragement of the principal offenders actions.
R v Russell
Accused was merely bound to take active steps to save his children. By deliberate extinction and by giving encouragement and authority of presence and approval to wife’s act became an aider and abettor thus a secondary offender.
Incites
To rouse, stir up, stimulate, animate, urge or spur on person to commit offence. Doesn’t have to be present at the scene but actions must take place before or during the act.
Counsels
Intentionally instigate the offence by advising on how to best to commit the offence or planning for another to commit. Also means urging someone to commit, and which case overlaps with incitement.
Procures
Setting out to see something happens and taking appropriate steps to ensure it does. Requires that the secondary party deliberately causes principal party to commit the offence. Requires a stronger connection between secondary party and commission of the offence that is evidenced and aiding, abetting or inciting. May be carried out by fraud, persuasion, words, conduct such as an offer of payment
Common intention
Where Form common intention and embark on joint enterprise, all who entered into the agreement can be charged as parties to. Can also be charged as parties to any other offence that any commits an order to assist and commission of agreed offence.
R v Betts and Ridley
Offence when no violence is contemplated and the primary offender is carrying out common aim uses violence, the secondary offender taking no physical part in it would not be held liable for the violence used.
Probably consequence
We are outcome is known to be a probable consequence as subjective appreciation on the part of the offender, where they must actually foresee the likelihood that the co-offender will commit another offence when committing original offence. Doesn’t require them to think commission of offence is more likely than not, sufficient. We demonstrated that they knew there was a substantial or real risk of the offence.
Joint enterprise - murder
A person is charged helped or encouraged.
-Foresaw as a real risk in the situation that arose.
Joint enterprise - manslaughter
Charged as party to manslaughter where they:
-knew at some stage a real risk of killing that short of murder.
-foresaw a real risk of murder but circumstances are different from those foresaw.
-expected to have known ever-present real risk of killing
Innocent agent
– Sometimes used by offenders
– someone who is unaware of significance of their actions.
In cases where innocent agent is used to bring about the actus reus, not regarded as being a participant. They are simply the mechanism.
– The law treats offender as principal party in such cases.
– innocent agent cannot be convicted as a secondary party.
Investigation procedure
Involvement of parties may be established by:
– reconstruction of offence which indicates more than one person is involved or had received advice or assistance.
– Offender acknowledges or admits others were involved.
- Suspect/witness admits to providing aid/assistance.
– Witness observations providing evidence of other persons involvement.
– Receiving information indicating others were involved.
Prosecution
Time limits for secondary party is the same as that of principal offenders
Penalties
Where no punishment expressly provided the penalty section as S311 (2) C.A 61.
Attempt to procure commission of offence-Liable to same punishment as if offence had been committed unless punishment is otherwise expressly provided by this act.
Charges under s66(2)
Where S 66 (2) applies or it is unclear which subsection applies formulate the same charge as for the principal offender.
