Parties

Question 1

Who is the principal party?

Answer 1

The person who actually commits the offence (s66(1)(a))

Question 2

Where a person is acquitted for an offence which can only be committed by a person of a certain class, can secondary offenders be convicted?

Answer 2

No

Question 3

When a person is charged as a party to murder will be guilty of manslaughter when?

Answer 3

When 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 4

When can two or more people be charged as a party in relation to common intention?

Answer 4

Where two or more offenders form a common intention and embark on a joint enterprise to commit an offence, all who entered the agreement can be charged as parties to that offence.

Question 5

What are the two qualifications to be satisfied under the general rule relating to probable consequence?

Answer 5

1:
There is no requirement that Person A forsaw the precise manner that offence B would 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 include any appreciation of the consequences of the physical element of the offence committed, but for which no mens rea element is required.

Question 6

What are examples of assistance?

Answer 6

• keeping a look out for someone committing a burglary
• Providing a screw driver to someone interfering with a motor vehicle
• Telling an associate when a neighbour is away from their home

Question 7

If a person cannot commit an offence themselves due to disability, gender etc.. can they be convicted as a secondary party?

Answer 7

Yes

Question 8

Definition of procures

Answer 8

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

It requires that the secondary part deliberately causes the principal party to commit the offence.

Question 9

What is the case law that relates to an intention to help or encourage?

Answer 9

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 10

Where two or more people form a party to commit an offence and other offences are committed, what happens?

Answer 10

All can be charged as being a party to that offence if the offence was in order to assist in the commission of the offence originally agreed to and is known to be a probable consequence of the commission of their common purpose.

Question 11

Does a secondary party need to be present during the offence?

Answer 11

The presence of any secondary party is not a requirement for any form of secondary participation.

Question 12

What is section 66(1)?

Answer 12

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.

Question 13

Where a full offence is not completed but an attempt is made, is a secondary party still considered a party to the attempted offence?

Answer 13

Yes

Question 14

Case law relating to a special relationship

Answer 14

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 this a secondary offender

Question 15

What is passive acquiescence?

Answer 15

A person may be liable as a party where there is a duty to act in circumstances where 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.

Question 16

Who is a innocent agent?

Answer 16

Someone who doesn’t know the significance of their actions and can’t be convicted as a secondary party.

Question 17

Can more than one person be a principal offender?

Answer 17

Yes, if both offenders satisfy all the elements of the offence or they each satisfy a part of the elements of the offence which combined constitute the whole offence.

Question 18

When does aiding by omission arise?

Answer 18

Where a person has a legal duty to act and a right of power of control over another and fails to observe or discharge this duty by not preventing the offence from being committed.

Question 19

Case law relating to common intention?

Answer 19

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 20

Case law relating to legal duty to a third person.

Answer 20

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 CA 1961 they are deemed to be in charge of a dangerous thing.

Question 21

When a person is charged as a party to murder will be guilty of murder when?

Answer 21

Where they
-intentionally helped or encouraged it
or
-foresaw murder by a confederate, as a real risk in the situation that arose

Question 22

Who decides whether a defendant is guilty of an offence committed by another party in the execution of their common purpose?

Answer 22

as it is a matter of fact it is up to the jury to decide

Question 23

When does participation in the offence need to occur to be considered a party?

Answer 23

before or during the commission of the offence and before the completion of the offence.

Question 24

What must be proven when charging a person with being a party?

Answer 24

• The identity of the defendant
• An offence has been successfully committed
• The elements of 66(1) have been satisfied

Question 25

Who is a secondary party?

Answer 25

A person who assistance abetment, incitement, counselling or procurement is sufficient under s66(1)(b/c/d) even if they themselves don’t commit the offence.

Question 26

How do time limits relate to primary and secondary offenders?

Answer 26

They are both the same limits

Question 27

Definition of aid

Answer 27

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

Question 28

What is the case law relating to assistance?

Answer 28

Larkins v Police
It is not necessary that the principal should be aware that they are being assisted but there must be proof of actual assistance.

Question 29

Where a primary offender can’t be convicted due to infancy, insanity or death can a secondary offender still be convicted?

Answer 29

yes

Question 30

Can a secondary party be convicted of a lesser offence to that of the principal offender?

Answer 30

Yes

Question 31

Definition of abets?

Answer 31

to instigate or encourage, to urge another person to commit an offence.

Question 32

What case law relates to where a principal offender can’t be identified?

Answer 32

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 either been the principal offender or a party in one of the ways contemplated by s66(1)

Question 33

Definition of incites

Answer 33

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

Question 34

What is the penalty for being a party to an attempted offence?

Answer 34

The same as if they had attempted to commit that offence unless the punishment is expressly provided.

Question 35

When must actions that amount to incitement, counsels or procures occur for someone to be a party?

Answer 35

They must occur before the offence is carried out.

Question 36

During an investigation, how does an investigator establish the involvement of parties?

Answer 36

• By reconstruction of the offence which would indicate more than one person was involved and that the principal offender had received advice or assistance
• The principal offender admitting that others were involved in the offence
• A suspect or witness admitting to providing aid or assistance when interviewed
• A witness providing evidence of another persons involvement based on their observations
• Receiving information indicating that others were involved in the offence

Question 37

Definition of counsels

Answer 37

To intentionally instigate the offence by advising the person/s on how best to commit an offence, or planning the commission of an offence for another person.

It may also mean urging someone to commit an offence and as such may overlap with incites