Parties

Question 1

Act, Section, Legislation of Parties

Answer 1

Section 66, Crimes Act 1961

(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.
(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.

Question 2

When must participation have occurred

Answer 2

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

Question 3

The difference between the primary and secondary offender

Answer 3

A person will be a principal offender, and liable under s66(1)(a), where he or she personally satisfies the actus reus and mens rea requirements of the offence. (There may be more than one principal offender in relation to the offence committed.)
Secondary parties are those people whose assistance, abetment, incitement, counselling or procurement is sufficient under s66(1)(b),(c) or (d) of the Crimes Act 1961 to make them also liable due to their participation in the offence committed by the principal(s). This is despite the fact that the secondary party does not themselves commit that offence.

Question 4

Multiple offenders There are two methods by which multiple offenders may be considered to be principals.

Answer 4

Method 1: Each offender satisfies ingredients of offence committed
Method 2: Each offender separately satisfies part of the actus reus

Question 5

Multiple offenders - Case Law

Answer 5

R v Renata [1992] 2 NZLR 346 (CA)
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).

Question 6

Actual proof of assistance is required - Case Law

Answer 6

Larkins v Police [1987] 2 NZLR 282; (1987) 3 CRNZ 49, 290; 57
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.

Question 7

Examples of assistance

Answer 7

• 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.

Question 8

Abets

Answer 8

Abets means to instigate or encourage; that is, to urge another person to commit the offence.

Question 9

Legal duty - Case Law

Answer 9

Ashton v Police [1964] NZLR 429
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.

Question 10

Special relationship - Case Law

Answer 10

R v Russell (1933) VR 59
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.

Question 11

Incites

Answer 11

To incite means to rouse, stir up, stimulate, animate, urge or spur on a person to commit the offence.

Question 12

Counsels

Answer 12

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). Counselling may also mean “urging someone to commit an offence”, in which case it will overlap with incitement.

Question 13

Procures

Answer 13

Procurement is setting out to see that something happens and taking the appropriate steps to ensure that it does.

Question 14

Common intention - Case Law

Answer 14

R v Betts and Ridley (1930) 22 Cr App R 148.
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.

Question 15

Joint enterprise – murder or manslaughter

A person charged as a party to murder will be guilty of:

Answer 15

Murder, where they:
• intentionally helped or encouraged it, or
• foresaw murder by a confederate, as a real risk in the situation that arose.
Manslaughter, 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.

Question 16

What is an Innocent agents

Answer 16

Innocent agents are sometimes used by the offenders. An innocent agent is someone who is unaware of the significance of their actions. In cases where the offenders use an innocent agent to bring about the actus reus, the innocent agent is not regarded as a participant in the offence, they are simply the mechanism. The law treats the offender as the principal in such cases.

Question 17

The involvement of parties may be established by:

Answer 17

A reconstruction of the offence committed. This would indicate that more than one person was involved, or that the principal offender had received advice or assistance.
• The principal offender acknowledging or admitting that others were involved in the offence.
• A suspect or witness admitting to providing aid or assistance when interviewed.
• A witness providing you with evidence of another person’s involvement based on their observations.
• Receiving information indicating that others were involved in the offence

Question 18

Can a secondary be convicted if the primary hasnt been

Answer 18

Yes A person is capable of conviction as a secondary party to an offence that has been committed, whether or not police have located, charged or convicted the principal.

Question 19

Penalties

Answer 19

Section 311(2), Crimes Act 1961
Attempt to procure commission of offence
(2) Every one who incites, counsels, or attempts to procure any person to commit any offence, when that offence is not in fact committed, is liable to the same punishment as if he had attempted to commit that offence, unless in respect of any such case a punishment is otherwise expressly provided by this act or by some other enactment.

Question 20

Section 66(1)(a) to (d) of the Crimes Act 1961 deals with

Answer 20

situations where the people involved are a party to the intended offence.

Question 21

• Section 66(2) of the Crimes Act 1961 deals with

Answer 21

situations where the people involved are a party to the intended offence and a party to any secondary offence committed in pursuance of the intended offence.

Question 22

Parties include

Answer 22

those who actively participate in the offence committed as well as those who assist before or during the commission of the offence

Question 23

Does a secondary party need to know prescise details?

Answer 23

• A secondary party need not know the precise detail involved in planning or committing the offence, in order to be considered a party.

Question 24

Does the intented offence need to be carried out precisely the way planned

Answer 24

The intended offence need not be committed in precisely the way planned by all parties for those involved to be held liable.

Question 25

Can mere presence be considered a party

Answer 25

Mere presence at the scene of an offence does not create a liability on the part of a bystander unless there is a special relationship or legal duty owed.

Question 26

Can a secondary party tried and convicted alone

Answer 26

A secondary party can be tried and convicted alone. This includes situations where the principal party cannot be located or is not amenable to justice

Question 27

Is a person charged as a party liable for other actions

Answer 27

Everyone who is a party to an offence is also liable for the actions taken by any one of the parties in furtherance of the common intention, including any unusual consequences, unless the action taken goes beyond what was tacitly agreed to.

Question 28

Party to a secondary offence

Answer 28

Section 66, Crimes Act 1961
(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.

Question 29

Common intention - Parties - Case Law

Answer 29

R v Betts and Ridley (1930) 22 Cr App R 148.
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.

Question 30

R v Pene

Answer 30

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