Parties

Question 1

Parties to Offences

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 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 anyone 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.

Revised:
(2) Where two or more person form a common intention to commit an offence and assist each other therein, each of them is party to every offence committed by anyone of them in the commission of the common purpose if the commission of that offence was a probable consequence arising from the principle offence.

Question 2

Offence committed other than offence intended

Answer 2

Section 70 Crimes Act 1961

(1) Everyone who incites, counsels, or procures another to be a party to an offence of which that other is afterwards guilty is a party to that offence, although it may be committed in a way different from that which was incited, counselled, or suggested.
(2) Everyone who incites, counsels, or procures another to be a party to an offence is a party to every offence which that other commits in consequence of such inciting, counselling, or procuring, and which the first-mentioned person knew to be likely to be committed in consequence thereof.

Question 3

What needs to be proved

Answer 3

• Identity of the defendant.
• Offence has successfully been committed.
• The elements of the offence (s66(1)) have been satisfied.

Where there is more than one offence committed, the elements must be applied to each offence separately.

Question 4

R v Pene

Answer 4

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

Question 5

Distinction between Principal Party and Secondary Party

Answer 5

Principal party:
Person will be a principal offender, and liable under s66(1)(a), where he or she personally satisfies the acts reus and mens rea requirements of the offence.

Secondary party:
Are those whose assistance, abetment, incitement, counselling or procurement is sufficient under s66(1)(b),(c) or (d) of CA61 to make them also liable use to their participation in the offence committed by the principal(s). Theses despite the fact that the secondary does not themselves commit the offence.

Aid, abet, incite, counsel or procure.

Assistance before or during the commission of the offence.

Part of the original plan to provide escape would be considered principal.

Question 6

Multiple Offenders

Answer 6

Method 1: Each offender satisfies elements of the offence committed. In such circumstance there is no requirement to refer to s66 of the act. Despite the fact that i falls within scope of s66(1).

Method 2: Each offender separately satisfies part of the acts reus to satisfy the complete acts reus. Their action must also be accompanied by the requisite mens rea.

Question 7

R v Renata

Answer 7

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 way contemplated by s66(1).

3v1 in car park of a tavern.

Question 8

Aid

Answer 8

To aid means to assist in the commission of the offence, either physically or by giving advice and information. 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 being committed.

Secondary party can provide aid without the awareness or consent of the principal offender.

Question 9

Larkins v Police

Answer 9

While it is unnecessary that the principal should be aware that he or she is being assisted, there must be proof of actual assistance.

Question 10

Examples of assistance

Answer 10

• 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 11

Aiding by omission

Answer 11

A, having legal duty to act and a right or power of control over B, fails to observe or discharge the duty by exercising that control to prevent B committing the offence.

Question 12

Abet

Answer 12

Abet means to instigate or encourage; that is, to urge another person to commit the offence. As with aiding, the presence of the abettor at the scene of the offence at the time of its commission is not required.

Mere presence by itself, without encouragement is insufficient. Deliberate presence, intended to signify approval of the acts of the principal will support and inference of encouragement.

Passive acquiescence may be considered abetting:

• Legal duty / right or power of control over
• Special relationship

Question 13

Ashton v Police

Answer 13

Legal duty:

An example of a secondary party owing a legal duty to a third person or to the general public is a person reaching another person to drive. That person is, in NZ, under 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 14

R v Russell

Answer 14

Special Relationship:

The court held that the accused was morally bound to take active steps to save his children, but in his deliberate abstention from doing so, and by giving the encouragement and approval to his wife’s act he became an aider and abettor and thus and secondary offender.

Question 15

Incites

Answer 15

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

Eg, A sports fan spurs on another fan to assault a protestor and yells approval while the offence takes place.

Question 16

Counsels

Answer 16

Intentionally instigate the offence by advising a person(s) how best to commit the offence, or planning the commission of an offence for another person(s).

Not necessary for the counsellor to know clear detail of the offence committed. It is sufficient that they know an offence of that kind was committed.

Eg, Instruction on how to blow up a safe. Commercial burglary.

Question 17

Procures

Answer 17

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

Requires the secondary party to deliberately cause the Principal party to commit the offence. Stronger connection between parties than aiding, abetting or inciting.

Eg, hire hitman to kill someone.

Question 18

Party to a Secondary Offence

Answer 18

Section 66 Crimes Act 1961

(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 anyone 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.

Revised:
(2) Where two or more person form a common intention to commit an offence and assist each other therein, each of them is party to every offence committed by anyone of them in achieving the common purpose if the commission of that offence was a probable consequence arising from the principle offence.

Common intention:

• 1 & 2 form a common intention to commit offence A. All can be charged with offence A.
• 1 & 2 can also be charged as parties to any other offence (offence B) if any one of them commits in order to assist the commission of offence A, provided offence B is a probably consequence of offence A.
• If 1 goes beyond the agreement, 2 is not liable for the unauthorised act (offence B).

Question 19

R v Betts and Ridley

Answer 19

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

Probable consequence

Answer 20

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 21

Investigative procedure

Answer 21

Establishing involvement of parties:

• A reconstruction of 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 other person’s involvement based on their observations.
• Receiving information indicating that others were involved in the offence.

Question 22

Distinction between ‘aiding and abetting’ and ‘inciting, counselling and procuring’

Answer 22

In general terms, aiding and abetting requires the person to be present at the scene, before or a the time of the offence being committed.

Inciting, counselling and procuring describe actions taken before the offence is carried out.