Parties

Question 1

What does S66(1) of the CA1961 state?

Answer 1

Everyone is a party to and guilty of an offence who;

(a) Actually commits the offence
(b) Does or omits an act for the purpose of aiding any person to commit the offence
(c) Abets any person in the commission of the offence
(d) Incites, counsels or procures any person to commit the offence

Question 2

What does S66(2) of the CA1961 state?

Answer 2

Where two 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 3

What three things do you need to prove in each case of charging a person with being a party to an offence?

Answer 3

• The identity of the Defendant.
• That an offence has been successfully committed.
• The ingredients of the offence (S66(1)) have been satisfied.

Question 4

When must participation have occurred for a person to be considered a party to an offence?

Answer 4

Participation must have occurred before or during (contemporaneous with) the commission of the offence and before the completion of the offence. Assistance provided after the commission of the offence becomes an accessory after the fact.

Question 5

What does R v Pene state regarding intent to help or encourage?

Answer 5

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

Question 6

What is the “Principal Party”?

Answer 6

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.

Question 7

What is the “Secondary Party”?

Answer 7

Secondary parties are those people whose assistance, abetment, incitement, counselling or procurement is sufficient under S66(1)(b), (c) or (d) of the CA1961 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 the offence.

Question 8

What is “Method 1” by which multiple offenders may be considered to be principals?

Answer 8

Each offender satisfies ingredients of the offence committed:

Each of the principal offenders may, separately, satisfy the necessary ingredients of the relevant offence committed - for example when two people commit a group assault on another. In such circumstances there is no requirement to refer to S66 of the CA, despite the fact that it falls under the scope of S66(1).

Question 9

What is “Method 2” by which multiple offenders may be considered to be principals?

Answer 9

Each offender separately satisfies part of the actus reus:

Under S66(1)(a) each offender may separately satisfy some part of the actus reus of the offence where their actions, when combined with the actions of the other person, satisfy the complete actus reus requirement of the offence. Their actions must also be accompanied by the requisite mens rea. These situations are true representations of joint principals working together, in that it is sufficient that each party carries out part of the actus reus and as such can be held liable.

Example: An offender prepares a poison before handing it to another offender to administer the poison. In this example both offenders share the same intent.

Question 10

What does R v Renata state regarding parties?

Answer 10

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 11

Can a person be convicted as a party for an offence that is already complete?

Answer 11

No - they would be liable as an accessory.

Question 12

Does a secondary party necessarily have to be present when the offence is committed? Example?

Answer 12

No - a person who supplies a key or deliberately leaves a door unlocked for a burglar is a party even when they are not present at the scene when the burglary is committed. Also, in order to aid, the presence of the person offering the aid is not required at the scene before or at the time of the offence.

Question 13

What does Larkins v Police state regarding actual assistance?

Answer 13

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 14

What are some examples of “assistance”?

Answer 14

• Keeping a 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 15

Is is possible to aid by omission?

Answer 15

Yes - Liability for aiding by omission can arise where a person fails to observe or discharges their duty to exercise their legal right or power over another person to prevent them committing the offence.

Question 16

What does “abet” mean? Does an abettor need to be at the scene of the offence at the time of it’s commission?

Answer 16

Abets means to instigate or encourage.

Question 17

What does Ashton v Police state regarding legal duty?

Answer 17

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 CA1961 he is deemed to be in charge of a dangerous thing.

Question 18

What is an example of a secondary party with a legal duty to act? Why?

Answer 18

An army sergeant who watches as a subordinate assaults another person and does nothing to prevent it would be liable as a secondary party to the assault. This is because the sergeant has a power of control over the subordinate and a lawful duty to prevent such incidents and intervene.

Question 19

What would constitute a person being a secondary party when they have a special relationship with the principal offender?

Answer 19

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 offender’s actions.

Question 20

What does R v Russell state regarding aiding and abetting?

Answer 20

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 21

What does “incites” mean?

Answer 21

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

Question 22

What does “counsels” mean?

Answer 22

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).

Question 23

Does a person counselling another to commit an offence need to know clear detail in respect of the offence to be committed?

Answer 23

No - it is sufficient that they know that an offence of that kind was intended.

Question 24

Can offenders be charged as parties for other offences committed during the commission of the original offence agreed?

Answer 24

Yes - provided the other offence is known to be a probable consequence of the prosecution of their common purpose. When one of the offenders goes beyond what is tacitly agreed then the other(s) is not liable for the consequences of the second offence.

Question 25

What does R v Betts and Ridley state regarding common intention?

(Victor Betts and Herbert Ridley agreed to rob a man, William Andrews, as he was on his way to the bank. Their plan was that Betts would push the individual to the ground and snatch his bag. Meanwhile Ridley would be waiting around the corner in a getaway car. However, Betts struck Andrews with such force that he died as a result of the blow.)

Answer 25

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 26

What are the two qualifications for “probable consequence”?

Answer 26

1: There is no requirement that person A knows or foresees 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.
2: There is no requirement that person A’s foresight of offence B includes any appreciation of the consequences of the physical elements of the offence committed (offence B), but for which no mens rea element is required.

Question 27

Can an innocent agent be convicted as a secondary party? What is an example of an innocent agent?

Answer 27

An innocent agent is someone who is unaware of the significance of their actions. They cannot be convicted as a secondary party.

Example: Offender who prepares a poison and puts it in a wine glass before handing it to a waiter to be given to the intended victim.

Question 28

What does R v Paterson state regarding innocent agents?

Answer 28

A person was asked to uplift a TV set from a flat which the accused, Paterson, pretended to own. Where an innocent agent is used, the act is regarded as the act of the person who incites or employs the innocent agent, and that person is regarded as the principal offender. The innocence of the agent may arise from their youth, a mental deficiency, ignorance of the facts or some other cause.