Parties

Question 1

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

Answer 1

S66 CA61

(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 2

Parties to Offences Legislation

(2) Where two or more persons… and Example

Answer 2

S66 CA61

(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.

Examples: Where a person is a party to an agreed act with violence and the principal offender in carrying out the common aim does an act causing death, the secondary party is equally responsible in law for such violence.

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.

Where the act was part of original planning (planned escape) then they are a principal party.

Question 5

Intention to help or encourage

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

Principal and Secondary 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.

Secondary parties are those people whose assistance, abetment, incitement, counselling or procurement is sufficient under s66(1)(b),(c) or (d)

Question 7

Multiple Principals

Answer 7

1) Each offender satisfies elements of the offence separately - eg two assaulters
2) Each offender satisfies a part of the actus reus, while sharing intent - eg one prepares poison, the other administers it.

R v Renata fatal carpark beating. where principal offender cannot be identified, it is sufficient to prove that each must have been either the principal or a party.

Question 8

Act and Omission Definition

Answer 8

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

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

Question 9

Aid

Answer 9

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

Presence not required. (key, door left open, burg).

Aware principal not required.

Agreement not required (Caution!).

Question 10

Proof of actual 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.

Question 11

Examples of Assistance

Answer 11

• 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 12

Abet

Answer 12

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

Presence not required. eg Encouraging to do violence.

Mere presence that does not encourage is insufficient.

Deliberate presence intended to signify approval of the acts will support inference of encouragement.

Question 13

Passive acquiescence abetting

Answer 13

Requires special relationship or legal duty to victim/public:

Special relationship - R v Russell - (pool drowning) morally bound to take active steps to save his children. Deliberate abstention from so doing, and by giving encouragement and authority of his presence and approval, he became an aider and abettor.

Legal duty - Ashton v Police - person teaching another to drive. Legal duty to take reasonable precautions due to s156 CA in charge of dangerous thing

Question 14

Incites

Answer 14

To incite means to rouse,stir up, stimulate, animate, urge or spur on a person to commit the offence. (sports fans spurs on and yells approval)

Question 15

Counsels

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

Knowing clear detail not required. (Letter with instructions on blowing safe)

Question 16

Procures

Answer 16

Procurement is setting out to see that something happens and taking the appropriate steps to ensure that it does. Requires deliberately causing principal to commit the offence.

Requires stronger connection. Carried out by fraud, persuasion, words or conduct , such as offer of payment.

Question 17

s66(2) defence

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. Whether defendant knew that result was probable is a question of fact for Jury to decide

Question 18

Probable consequence

Answer 18

Subjective appreciation by person A foreseeing the likelihood that person B will commit another offence (B).

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

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 agents

Answer 20

Cannot be convicted. Simply the mechanism. (Waiter unknowingly administering poison, TV uplifted from flat)

Innocence may arise from youth, mental deficiency, or ignorance of the fact, or some other cause.

Question 21

Investigative Procedure

Answer 21

Same for principal and parties. Establishing involvement by:

• 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 22

Prosecution time limits

Answer 22

The same as for principals

Question 23

Can be charged when

Answer 23

• Principal not located/charged/convicted
• Principal not convicted due to age/insanity/death
• Two or more parties are accomplices, and can be convicted on uncorroborated evidence of the other party, although it is unwise to do so
• He or she cannot themselves commit the offence due to age, sex, or some other qualification or status.
• Party to an attempt when would have been party to completed offence, but unsuccessful
• Proceeded ‘Together with’, or before/after conviction of principal
• Lesser offence to principal - eg murder>manslaughter

Question 24

Cannot be charged when

Answer 24

• In cases where an offence is only capable of being committed by a person of a designated class, such as a motor vehicle driver, and where that person has been acquitted of a charge, no other person is able to be convicted as a secondary party
• timely and effective withdrawal before the commission or attempt
• aggravated robbery 235(b) requiring two or more

Question 25

Charge wording

Answer 25

Was a party to… [wording] in that you did [aid/abet] or [aid and abet etc]

Recommended but not legally necessary to refer s66

Question 26

Penalty

Answer 26

Where no express provision, s311 CA 1961 says

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 27

Example of specific aiding etc offence

Answer 27

Inciting a person to resist a constable s23(a)

Participating in OCG s98A CA61

Associating with violent offenders s6A SO81

Associating with serious drug offenders s6B SO81