Parties

Question 1

What is a party to an offence

Answer 1

Is any person involved at any or all stages of preparing for, attempting, or actually committing an offence. This includes anyone who incites or counsels another to commit the offence.

Question 2

Case law for parties

Answer 2

R v Pene, R v Renata, Larkins v Police, Ashton v Police, R v Russell, R v Betts and Ridley

Question 3

Parties to offences - legislation

Answer 3

Section 66(1) Crimes Act 1961
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 4

Parties to a secondary offence.

Answer 4

Section 66(2) Crimes Act 1961
Where two or more people form a common intention to prosecute any lawful purpose, and to assist each other therin, 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 5

Parties to - Offence committed other than offence intended
Section 70(1) Crimes Act 1961

Answer 5

Everyone who incites, counsels, or procures another to be a party to an offence of which that other is afterwards guilty is party to that offence, although it may be committed in a way different from that which was incited, counseled, or suggested.

Question 6

Parties to - Offence committed other than offence intended
Section 70(2) Crimes Act 1961

Answer 6

Everyone 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 7

Parties - What do you need to prove

Answer 7

The identity of the offender, an offence has been committed, and the elements of the offence 66(1) have been satisfied.

More than once offence, elements must be applied to each offence separately.

Question 8

Parties - when participation must have occurred.

Answer 8

Must have occurred before, or during (contemporaneous with) the commission of the offence and before the completion.

Question 9

Parties - Case Law for help or encourage must exist

Answer 9

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

Question 10

Parties - Principal and secondary offenders - explain

Answer 10

Principal offender - Liable under 66(1)(a) when personally satisfies the actus reus and mens rea requirements of the offence. (There may be more than one)
Secondary offender - are those whose assistance, etc. is sufficient under 66(1)(b)(c) or (d) to make them also liable due to their participation, despite not committing offence themselves.

Question 11

Parties - Case law, multiple offenders

Answer 11

R v Renata
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 in 66(1).

Question 12

Parties - Does or omits an act

Answer 12

The secondary party does not need to be present when the offence is committed.

Question 13

Parties - Case law - Actual proof of assistance is required

Answer 13

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 14

Abets

Answer 14

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

Question 15

Parties - examples of assistance (Actual assistance required)

Answer 15

• keeping lookout
• providing screwdriver to someone interfering with a motor vehicle
• telling an associate when neighbour’s are away for them to burgle it.

Question 16

Passive acquiesence may be considered abetting- explain

Answer 16

Abetting or encouragement may take the form of passive acquiesence where there is a duty to act.
Merely being present at the scene of an offence and witnessing it, while doing nothing, doesn’t create liability on the part of that person unless, in the circumstances there is a special relationship between that person and the principal offender, or where they owe a legal duty to the victim or general public.

Question 17

Parties - Legal duty

Answer 17

The special relationship is also 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 18

Parties Case law - Legal duty

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 under legal duty to take reasonable precautions because they are deemed in charge of a dangerous thing.

Question 19

Parties - Special relationship

Answer 19

Where there is a special relationship and no intervention, this might amount to approval and encouragement of the principal offender.

Question 20

Parties - Case Law - Special relationship

Answer 20

R v Russell
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 wife’s act he became an aider and abetter, making him a secondary offender.

Question 21

Parties - Incites, counsels or procures - when do these happen

Answer 21

These generally take place before the offence is carried out and generally does not warrant the attendance of the inciter, counsellor or procurer at the scene, may continue on to the scene though.

Question 22

Incites

Answer 22

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

Question 23

Counsels

Answer 23

Means to intentionally instigate the offence by advising a person on how best to commit an offence, or planning the commission of an offence for another person.

Question 24

What does the person counseling the offender have to know? - parties

Answer 24

Not necessary to know the clear detail of the offence, sufficient that they know an offence of some kind was intended.
Eg. Robbery, u/k location.

Question 25

Procures

Answer 25

Means setting out to see that something happens, and taking the appropriate steps to ensure that it does.
Requires secondary party to deliberately cause the principal party to commit offence. Requires stronger connection than aiding, abeting or inciting.

Question 26

Define - Any person

Answer 26

Proved by Judicial notice and accepted by circumstantial evidence.

Question 27

Parties to a secondary offence (Section and Act)

Answer 27

66(2) Crimes Act 1961

Question 28

Common intention - Parties to

Answer 28

In situations where two or more people agree to, and commit an offence together, they can also be charged with parties to any other offence that one of them commits in order to assist the commission of the agreed offence, provided the other offence is a probable consequence of their common purpose.
However, when one goes beyond what is agreed, then the other is not liable.

Question 29

Case Law - Parties - Common intention

Answer 29

R v Betts and Ridley
An offence where no violence is contemplated, and the principal offender in carrying out the common intention uses violence, the secondary offender taking no physical part would not be liable for the violence.

Question 30

Parties - Probable consequence

Answer 30

Subjective appreciation on the part of the offender, where they must actually foresee the likelihood that their co-offender will commit another offence when committing the original offence agreed.

Question 31

Parties - Probable consequence - Two qualifications

Answer 31

1 - The other party needs only to realise that another offence of the type is probable.
2 - There is no requirement that the other person foresaw the probable consequence of the physical elements of the offence.

Question 32

Parties - Innocent agents

Answer 32

Is someone who is unaware of the significance of their actions. Cannot be charged as a secondary. They are simply the mechanism.

Question 33

Is a person still capable of a conviction as a secondary offender if the principal offender isn’t located, charged or convicted?

Answer 33

Yes

Question 34

Parties - If a primary offender cannot be charged due to infancy, insanity or death, can a secondary person still be convicted?

Answer 34

Yes

Question 35

Parties - Can someone be convicted as a secondary party if they cannot physically commit the offence?

Answer 35

Yes, counsels, offer advice, etc.

Question 36

Parties - Can someone be convicted as a secondary offender to an attempts?

Answer 36

Yes

Question 37

Parties - Can a secondary offender be proceeded against in court, together with the principal offender, before or after them?

Answer 37

All of the above. Proceedings and convictions may occur either together with, before, or after the primary offender is convicted of the offence.