Parties Flashcards
Explain the difference between Crimes Act 1961, s66(1) and (2).
66(1) - party to an offence
66(2) - party to a secondary offence
Explain the difference between aiding and abetting.
To aid means to assist in the commission of the offence, either physically or by giving advice and information.
Abets means to instigate or encourage; that is, to urge another person to commit the offence.
Explain the difference between inciting, counselling and procuring.
To incite means to rouse, stir up, stimulate, animate, urge or spur on a person to commit the offence.
Counsels means to intentionally instigate the offence by advising a person(s) on how best to commit an offence, or planning the commission of an offence for another person(s).
Procurement is setting out to see that something happens and taking the appropriate steps to ensure that it does.
Use case law to discuss intention to help or encourage.
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.
Discuss the ways in which multiple offenders may be considered to be principals. Support with case law.
- Each offender satisfies the ingredients of the offence
- each offender separately satisfies part of the actus reus
R v Renata
Three offenders beat the victim to death in the car park of a tavern. The prosecution was unable to establish which blow was the fatal one or which of the three offenders administered it. 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).
Discuss the findings in Ashton v Police regarding 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 person to drive. That person is, in New Zealand, under a legal duty to take reasonable precautions, because under s156 of the Crimes Act 1961 he is deemed to be in charge of a dangerous thing.
Discuss the findings in R v Russell regarding special relationship.
The accused was charged with the murder of his wife and two sons. Following an argument between the accused and his wife, the wife, in the presence of the accused, allegedly jumped into a swimming pool with both children, drowning them all. The accused failed to render assistance to his wife or their children. The court held that the accused was morally bound to take active steps to save his children, but by his deliberate abstention from so doing, and by giving the encouragement and authority of his presence and approval to his wife’s act he became an aider and abettor and thus a secondary offender.
Discuss the findings of case law in regards to common intention.
R v Betts and Ridley
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.
Define parties from the legislation.
S66(1)
Every one 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, counsels, or procures any person to commit the offence.
What needs to be proved for parties?
- The identity of the defendant, and
- an offence has been successfully committed; and
- the ingredients of the offence (s66(1)) have been satisfied.
When must participation have occurred?
Before or during (contemporaneous with) the commission of offence and before completion.
What’s the difference between a principal party and secondary party?
Principal satisfies actus reus and mens rea.
Secondary assists, abets, incites, counsels or procures.
Actual proof of assistance is required. Support this with case law and provide 3 examples.
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. The mere commission of an act intended to have that effect is insufficient. Absence of knowledge by the principal that he is being assisted removes a common foundation for a finding of actual assistance, namely that the principal was able to proceed with his enterprise with the additional confidence gained because his accomplice was on the lookout for unwanted intervention.
- Keeping lookout for someone committing a burglary.
- Providing a screwdriver to someone interfering with a motor vehicle.
- Telling an associate when a neighbour is away from their home so as to allow the opportunity to commit a burglary.
Define secondary offence, including section etc.
Section 66(2) Where 2 or more persons 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 if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose.
What are the two exceptions to the passive presence rule?
- special relationship
- legal duty
