Parties

Question 1

Parties to Offences
S66(1) CA1961

(1) Every one is a party to and guilty of an offence who-

Answer 1

(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 2

Parties to Offences
S66(2) CA1961

(2) Where two or more persons…

Answer 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 3

Parties

What you must prove

Answer 3

• The identity of the defendant, and
• an offence has been successfully committed; and
• the elements of the offence (s66(1)) have been satisfied.

Question 4

When participation must have occurred

Answer 4

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 5

R v Pene

Intentionally help

Answer 5

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 6

Two methods by which multiple offenders may be considered to be principals

Answer 6

Method 1: Each offender satisfies elements of offence committed
Example
Independently guilty of assaults

Method 2: Each offender separately satisfies part of the actus reus
Example
An offender prepares a poison before handing it to the other offender to administer the poison. In this example both offenders share the same intent.

Question 7

R v Renata

Principal offender

Answer 7

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).

Question 8

Does or Omits an Act

Act or Omission definition and example

Answer 8

Act: To take action or do something, to bring about a particular result.

Example: (Act)
A doctor deliberately administers [the act] a substance to a patient that causes the patient’s death.

Omission: The action of excluding or leaving out someone or something, a failure to fulfil a moral or legal obligation.

Example: (Omission)
A doctor deliberately avoids administering [the omission] a substance to a patient who is critically ill, when he knows that the substance would save the patient’s life.

The purpose of the act or omission must be so that the offence can be facilitated.

Question 9

Aids

Definition

Answer 9

To assist in the commission of the offence, either physically or by giving advice and information.

Question 10

Larkins v Police

Actual proof of assistance

And Examples of assistance

Answer 10

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.

• 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 11

Abets

Definition and Example

Answer 11

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

Example: Abets
A woman discovers her same sex marriage partner with another person. A fight breaks out between the woman and the other person. While the fight continues the partner encourages the other person to kill her same sex marriage partner.

Question 12

Ashton v Police

Legal Duty

Answer 12

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, 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 13

R v Russell

Special Relationship

Answer 13

R v Russell

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 14

Incites

Definition and Example

Answer 14

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

For example, a sports fan spurs on another fan to assault a protester and yells approval while the offence takes place.

Question 15

Counsels

Definition and Example

Answer 15

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)

An example of counselling can be found in Baker, where a letter, authored by another party and instructing on how to blow a safe, was found in the possession of two offenders, at the scene of a commercial burglary. The letter writer was charged as a party, despite the fact he was not aware of the time, manner or place to be burgled.

Question 16

Procures

Definition and Example

Answer 16

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

Example:
A woman obtains the services of a ‘hit man’ to kill her husband and offers money or sexual services to him as payment.

Question 17

R v Betts and Ridley

No violence is contemplated

Answer 17

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.

Question 18

Probable Consequence

Two qualifications to be satisfied under the general rule in relation to probable consequence:

Answer 18

Qualification 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.

Qualification 2
There is no requirement that person A’s 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

Question 19

Joint Enterprise

Party to Murder or Manslaughter

Answer 19

A person charged as a 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.

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 20

Innocent Agent

Definition and Example

Answer 20

An innocent agent is someone who is unaware of the significance of their actions.

Example:
An offender prepares a poison and puts it in a wine glass before handing it to a waiter for it to be given to the intended victim. Despite it being the waiter who gives the victim the poison, it is the offender who is responsible for the offence committed.

Question 21

Investigative Procedure

The involvement of parties may be established by:

Answer 21

• 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.