Parties Flashcards
Parties to offences
Legislation
(1) Everyone is a party to and guilty of an offence who;
(1) Everyone is a party to and guilty of an offence who;
Section 66 CA1961
(1) Everyone is a party to and guilty of an offence who;
(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 , councils, or procures any person to commit the offence
Parties to offences
Legislation
(2) s66 CA61
Where two or more people
(2)
Where two or more people 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 of the commission of the offence was known to be a probable consequence of the prosecution of the common purpose.
Example:
Where at person is a party to an agreed act with violence and the principle offender in carrying out the common aim does an act causing death, the secondary party is equally responsible in law for such violence.
Section 70 ca1961
Offence committed other than offence intended.
(1) Everyone who incites, counsels, or procures another to be a party to an offence of which that other is afterwards guilty is a party to that offence, although it may be committed in a way different from that which was incited, counselled or suggested.
(2) 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.
Parties - what must you prove?
- The identity of the defendant, and
- an offence has been successfully committed,
- the element of the offence (s66(1)) have been satisfied
When participation must have occurred?
- to be considered a party to the offence, participation must have occurred before or during (contemporaneous with) the commission of the offence and before the completion of the offence.
Intention to help or encourage must exist
R v PENE
- a party must intentionally help or encourage - it is insufficient if they were reckless as to whether the principle was assisted or encourage.
Distinction between principal and secondary party.
- Generally, a distinction is made between the principal party (The person who actually commits the offence) and a secondary party.
Principal party
- where he or she personally satisfies the actus reus and Mens rea requirements of the offence.
Secondary party
- people whose assistance, abetment, incitement, counselling or procurement is sufficient under s66(1)(b)(c) or (d) of the CA61 to make them also liable due to their participation in the offence committed by the principle (s). This is dispute the fact that the secondary party did not themselves commit that offence.
Multiple offenders
What are the two methods by which multiple offenders may be considered to be principals?
- method 1: Each offender satisfies elements of offence committed
• each principal offender may, separately, satisfy the necessary elements of the relevant offence committed - eg. independently guilty of assaults. - method 2: Each offender separately satisfies part of the actus reus.
• an offender prepares poison before handing to other offender to administer the poison. Both offenders share same intent.
R v RENATA
- the 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 contemplated by s66(1)
Secondary offenders
- Those who assist either before or during commission of offence considered secondary offenders - liability lies with scope of s66(1)(b),(c) or (d).
To be party to offence, acts of secondary offender must be earlier in time or contemporaneous with acts of principal.
Where at was part of original planning, eg escape, then person who committed act would be deemed as a principal.
Person cannot be convicted as party for offence that is already complete. They would be liable as an accessory.
Actual proof of assistance required.
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.
What are some examples of assistance?
- keeping lookout
- providing screwdriver to someone interfering with motorcycle.
- informing associate when neighbour away.
Abets
- abets means to instigate or encourage, that is, to urge another person to commit the offence.
What does passive acquiescence mean?
- similar to “aiding by omission”
- abetting or encouragement may take form of passive acquiescence where there is a duty to act.
- being present at scene at witnessing while doing nothing will not create a liability on part of that person unless, in circumstances 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.
Ashton v police
Legal duty
- 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, in NZ, under a legal duty to take reasonable precautions, because under s156 CA61 he is deemed to be in charge of a dangerous thing.
Special relationship
- where there is a special relationship and no intervention on the part of the person who would be a party, then this might amount to approval and encouragement of the principal offenders actions
R v RUSSEL
The court held that the accused was morally bound to take active steps and save his children, but by his deliberate abstention from doing so, and by giving the encouragement and authority at his presence and approval to his wife’s act he became an aider and abettor and thus a secondary offender
What is “incites”?
- to incite means to rouse, stir up, stimulate, animate, urge or spur on a person to commit the offence.
What is “counsels”?
- intentionally instigate the offence by advising a person(s) on how best to commit an offence or planning for another person.
What is “procures”?
- procurement if setting out the see that something happens and taking the appropriate steps to ensure it does
What is “any person”?
- any person carries its natural meaning and in relation to parties means any other person
R v BETTS and RIDLEY
No physical violence contemplated.
- 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
Probable consequence
- Whether the outcome is “known to be a probable consequence” is a subjective appreciation on the part of the offender, (person A), where they must foresee the likely hood that their co offender (person B) will commit another offence (offence B) when committing original offence (offence A) agrees by both parties.
What are the two qualifications to be satisfied under the general rule in relation to probable cause?
QUAL 1
- No requirement that a person A knows or forswear 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.
QUAL 2
- There is no requirement that person As foresight of offence B include any appreciation of the consequences of the physical Elements of the offence committed (offence B), but for which no Mens rea element is required.
Joint enterprise - murder or MS
Person charged as party to murder will be guilty of murder where they:
- intentionally helped or encouraged it, or
- foresaw murder by a confederate, as a real risk in the situation that arose.
MS, 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 known there was an ever present real risk of killing.
What is an innocent agent?
- someone who is unaware of the significance of their actions
Investigative procedure
Establishment involvement of parties
The involvement of the parties may be established by:
- reconstruction of offence committed
- principal offender acknowledging or admitting
- suspect or witness admitting to providing aid or assistance when interviewed
- if witness providing you with evidence of another’s involvement based on their observations
- receiving information indicating that others were involved in the offence.
