Parties

Question 1

What is the statute and section for parties to offences?

Answer 1

Sec 66 Parties to offences, CA 1961

Question 2

What does Sec 66(1) relate to?

Answer 2

deals with situations where the people involved are a party to the intended offence

Question 3

What does Sec 66(2) relate to?

Answer 3

deals with situations where the people involved are a party to the intended offence and a party to any secondary offence committed in pursuance of the intended offence

Question 4

What are the elements of 66(1)?

Answer 4

Everyone is 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 5

What section relates to offences committed other than offence intended?

Answer 5

Sec 70 Offence committed other than offence intended

(1) committed in a different way
(2) knew likely to be committed in consequence

Question 6

What needs to be proven?

Answer 6

• The identity of the defendant and
• An offence has been successfully committed; and
• The elements of the offence [s66(1)] have been satisfied

Question 7

When must participation occur?

Answer 7

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 8

What is the case law relating to intention to help or encourage?

Answer 8

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 9

Explain principal and secondary parties

Answer 9

A person will be a principal party (liable under s66(1)(a)) where he personally satisfies the actus reus and mens rea requirements of the offence. There may be more than one principal offender

Secondary parties are those people whose assistance, abetment, incitement, counselling or procurement is sufficient under s66(1)(b), (c), or (d) CA 1961 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 that offence.

A secondary party need not know the precise detail involved in planning or committing the offence, in order to be considered a party.

Question 10

Explain Sec 66(1)(a)

Answer 10

S 66(1)(a) refers to situations where there has been actual participation of principal offenders in the offence committed. There may be more than one offender identified as a principal offender

Question 11

What are the two methods by which multiple offenders may be considered to be principals?

Answer 11

Method 1: Each offender satisfies elements of offence committed

Method 2: Each offender separately satisfies part of the actus reus

Question 12

What is the case law relating to multiple offenders?

Answer 12

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 13

Explain secondary offenders in relation to timing of acts

Answer 13

Those who assist the principal offender(s) either before or during the commission of an offence are considered secondary offenders (s 66(1)(b)(c) or (d)).

To be party to an offence, the acts of the secondary offender must be earlier in time or contemporaneous with the acts of the principal offender(s). Whether acts are contemporaneous is dependant on the circumstances of each case.

A person cannot be convicted as a party for an offence that is already complete (they would be liable as an accessory).

The secondary party does not necessarily have to be present when the offence is committed

Question 14

Define aid and explain

Answer 14

To aid means to assist in the commission of the offence, either physically or by giving advice and information. Presence of the person offering the aid is not required at the scene

Although ideal, it is not always necessary that the principal should be aware they are in fact being assisted in some way by the actions of the secondary party.

There is also no requirement that the principal agree to the assistance. A cautionary approach should be taken

Question 15

What is the case law relating to actual proof of assistance?

Answer 15

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 16

Explain aiding by omission

Answer 16

It is possible to aid or abet by omission.

Liability for aiding by omission will arise where A, who has a 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 an offence

Question 17

Define abet and explain

Answer 17

Abets 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

R v Loper and R v Makita: mere presence by itself, which does not encourage, is insufficient. However, deliberate presence, intended to signify approval of the acts of the principal will support an inference of encouragement in fact.

Question 18

Explain when passive acquiescence may be considered abetting

Answer 18

abetting or encouragement may take the form of passive acquiescence where there is a duty to act.

Merely being present at the scene of an offence and witnessing the offence while doing nothing to prevent it does not create liability on the part of that person unless, in the circumstances, 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 19

Explain legal duty

Answer 19

The special relationship is also dependant on the person who would be a secondary party having a legal duty to act and a right or power of control over the principal offender.

Question 20

What is the case law relating to legal duty?

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 Crimes Act 1961 he is deemed to be in charge of a dangerous thing.

Another example; SGT

Question 21

Explain special relationship in relation to intervention

Answer 21

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 22

What is the case law relating to special relationship?

Answer 22

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 23

Define incite

Answer 23

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

Question 24

Define counsel and explain

Answer 24

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

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

It is not necessary the counsellor knows the clear detail in respect of the offence to be committed; it is sufficient that they know that an offence of that kind was intended

Question 25

Define procure and explain

Answer 25

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

Procures requires that the secondary party deliberately causes the principal party to commit the offence. It requires a stronger connection between the secondary party and the commission of the offence than is evidenced in aiding, abetting or inciting.

Procurement may be carried out by fraud, persuasion, words or conduct, such as an offer of payment.

Question 26

Explain Sec 66(2) CA 1961

Answer 26

A person can be charged as parties to any other offences that any one of them commits in order to assist in the commission of the offence originally agreed to, provided that the other offence is known to be a probable consequence of the prosecution of their common purpose.
This extends to include unusual consequences that arise from pursuing the jointly intended offence. However, where one of the offenders goes beyond what was agreed then the other(s) is not liable for the consequences of the unauthorised act.

Question 27

What is the case law relating to common intention?

Answer 27

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 28

Explain probable consequence

Answer 28

Whether an outcome is ‘known to be a probably consequence’ is a subjective appreciation on the part of the offender (person A), where they must actually foresee the likelihood that their co-offender (person B) will commit another offence (offence B) when committing the original offence (offence A) agreed by both parties.

This does not require person A to think that the commission of the offence is more likely than not. It will be sufficient where it can be demonstrated that person A knew there was a substantial or real risk that offence B could well happen.

However, where person A thinks the risk of offence B being committed by person B is negligible or only remotely possible then the mens rea required on the part of person A will be lacking.

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 29

Explain joint enterprise in relation to murder or manslaughter

Answer 29

A person charged as a party to murder will be guilty of:
Murder, where they:
• Intentionally helped or encourage 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 30

Define and explain innocent agents

Answer 30

An innocent agent is someone who is unaware of the significance of their actions. In cases where offenders use and innocent agent to bring about the actus reus, the innocent agent is not regarded as a participant in the offence. The law treats the offender as the principal. An innocent agent cannot be convicted as a secondary party.

Question 31

Explain the investigation procedure in relation to establishing involvement of parties

Answer 31

The involvement of parties may be established by:
• A reconstruction of the offence committed
• Admissions by the principal offender that others were involved in the offence
• Suspects or witnesses admitting to providing aid or assistance
• A witnessing providing evidence of another person’s involvement based on their observations
• Receiving information indicating others were involved in the offence

Question 32

Explain time limits in relation to charging someone as a secondary party

Answer 32

Any time limits associated with charging a person as a secondary party is the same as that for the principal offender(s).

Question 33

Explain some general prosecution points

Answer 33

• A person is capable of conviction as a secondary party to an offence that has been committed, whether or not Police have located, charged or convicted the principal
• Where the principal cannot be convicted due to infancy, insanity or death a secondary party may still be convicted
• Where there are two or more persons who are parties to an offence, each is an accomplice of the other and as such can be convicted on uncorroborated evidence of the other party, although it is unwise to do so
• In cases where an offence is only capable of being committed by a person of a designated class (eg driver), and where that person has been acquitted of a charge, no other person is able to be convicted as a secondary party
• A person may be convicted as a secondary party to an offence for which he could not themselves commit
• Any person who would have been a party to the completed offence is considered a party to any attempt carried out in the circumstances where the substantive offence was unsuccessful
• Every party to an offence (who is not the principal), may be proceeded against and convicted of that offence, either together with the principal or before or after the principal is convicted of the offence
• An accomplice can be convicted of a lesser offence than the one that the principal offender is convicted of. R v Hartley gang shooting, accomplice can be convicted of manslaughter and the principal of murder
• R v Pink a secondary party to an offence may escape liability by a timely and effective withdrawal before the commission or attempt of the offence
• Secondary liability has no application to a charge of aggravate robbery (s235(b)), because the collected element of being together with any other person(s) displaces s66(1)(a)-(d).

Question 34

What is the penalty for being a party?

Answer 34

Where no punishment is expressly provided, the penalty section to be applied is s311(2) CA 1961
Liable to the same punishment as if he had attempted to commit that offence

In offence provisions which specifically refer to the actions of the secondary party (ie inciting) you do not cite s66 on the charge.