parties Flashcards
what do you need to prove to charge a person for being a party
- the identity of the defendant, and
- an offence has been successfully committed; and
- the elements of the offence (s66(1)) have been satisfied
when must participation have occurred
participation must have occurred before or during (contemporaneous with) the commission of the offence and before the completion of the offence
who is the principal offender
a person is a principal offender and liable under s66(1)(a) where he or she satisfies the actus reus and mens rea requirements of the offence
what is a secondary party
secondary parties are people whose assistance, abetment, incitement, counselling or procurement is sufficient under s66(1)(b), (c) or (d) to make them liable
what does aid mean
to aid means to assist in the commission of the offence, either physically or by giving advice and information.
the presence of the person aiding is not required at the scene
r v tauranga
affirmed the presence of the person at the scene is not a requirement for any form of secondary participation
what are some examples of 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 commit a burglary
what is an example of when liability will arise for aiding by omission
person A who has a legal duty to act and a right or power over person B, fails to observe or discharge the duty by exercising that control to prevent B committing an offence
what does it mean to abet
abet means to instigate or encourage, to urge another person to commit an offence.
the person abetting is not required to be present at the scene
what is an example of an 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
what did r v loper and r v makita note in relation to presence and encouragement
both cases held mere presence without encouragement is insufficient, and deliberate presence to signify approval of acts will support an inference of encouragement
when can passive aqcuiescence be cause for liability
mere presence at the scene while an offence is being committed without doing anything to prevent it does not create liability unless there is a special relationship between the person present and the principal offender or where they owe a legal duty to the victim or the public
what is an example of passive acquiescence
an army sergeant who watches as a subordinate assaults another person and does nothing to prevent it would be liable as a secondary party to the assault because has power of control over the subordinate
what does it mean to incite
incite means to rouse, stir up, stimulate, animate, urge or spur on a person to commit an offence
eg a sports fan spurs on another fan to assault a protestor and yells approval while it takes place
what does it mean to counsel
counsel means 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
it is not necessary that the counsellor knows the clear detail of the offence, it is sufficient for them to know that a robbery is to be committed, they need not know the target address or victim details
what does it mean to procure
procurement is setting out to see that something happens and taking the appropriate steps to ensure that it does
it requires the secondary party deliberately causes the principal party to commit the offence
what is an example of a procurement
a woman obtains the services of a hitman to kill her husband and offers money or sexual services to him as a payment
s66(2) of crimes act 1961
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
what is an example of s66(2)
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
who decides whether a defendant knew that furthering the common aim would result in one of the parties committing a particular offence
this is a question of fact and therefore decided on by the jury
what are the 2 qualifications for probable consequence
qualification 1:
there is no requirement person A knows or foresees precise manner in which offence B is to be committed by person B. Person A need only to realise 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, but for which no mens rea element is required
when will a person charged as a party to murder be guilty of murder
when they:
- intentionally helped or encouraged it, or
- foresaw murder by a confederate, as a real risk in the situation that arose
when will a person charged as a party to murder be guilty of manslaughter
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
what is an example of an innocent agent and can they be convicted as a secondary party
a person poisons a glass of wine and hands it to the waiter who delivers it to the victim.
no they cannot be convicted as a secondary party. the innocence may arise from their youth, mental capacity or ignorance of the facts
how can the involvement of the parties be established
- reconstructing the offence committed. this would indicate more than one person was involved or that the principal offender received assistance or advice
- principal offender acknowledging or admitting others were involved in the offence
- a suspect/witness admitting to providing aid or assistance
- a witness providing evidence of another persons involvement based on their observations
- receiving information indicating that others were involved in the offence
general prosecution points
- secondary party can be convicted for an offence committed, before the primary party has been located
- secondary can be convicted even if primary is not due to infancy, insanity or death
- a party can be convicted on uncorroborated evidence of the other party although unwise to do so
- where an offence can only be committed by a person of a designated class eg driver of a car, and where that person is acquitted, no one else can be convicted as a secondary party
- although a person may be held incapable of committing an offence themselves under s66(1)(a) due to sex, age or other status, such a person may be guilty as a secondary party such as a quadriplegic offering advice on how to commit a robbery
- secondary liability has no application to charge of aggravated robbery (s235(b)) as collective element of being together with displaces s66(1)(a - d)
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
if the relevant option from s66(1) is not included in the charge wording when must the prosecutor advise the court that the defendant is charged as a party
- before the summary of facts is read out on a guilty plea
- before evidence is heard in a JAT
in what situations does a person become liable as a party to an offence under s66(1) of crimes act
where they:
- actually commit the offence
- do or omit an act for the purpose of aiding any person to commit an offence
- abet any person in committing an offence
- incite, counsel or procure any person to commit an offence
what is the difference between “aiding and abetting” and “inciting, counselling and procuring”
aiding and abetting requires person to be present at the scene, inciting, counselling and procuring are actions taken before the offence is carried out
