Parties

Question 1

S66 CA61

Parties to offences

Answer 1

(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 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

Question 2

S70 CA61

Offence committed other than offence intended

Answer 2

(1) Every one 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) Every one 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

In each case of charging a person with being a party to an offence, 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

Question 5

(Intention to help or encourage must exist) R v Pene

Answer 5

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

Distinction is made between the principal party and the secondary party. Explain what these are

Answer 6

Principal party is the person who actually commits the offence. A principal offender, and liable under s66(1)(a), where he or she personally satisfies the actus reus and mens rea requirements for the offence.

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

Question 7

Explain the two methods by which multiple offenders may be considered to be principals

Answer 7

1. Each offender satisfies elements of offence committed : Each of the principal offenders may, separately, satisfy the necessary elements of the relevant offence committed. In such circumstances there is no requirement to refer to s66 of the act, despite the fact that it falls within the scope of s66(1).
2. Each offender separately satisfies part of the actus reus: Under s66(1)(a) each offender may separately satisfy some part of the actus reus of the offence where their actions, when combined with the actions of the other person, satisfy the complete actus reus requirement of the offence. Their actions must also be accompanied by the requisite mens rea.

Question 8

(Multiple offenders) R v Renata

Answer 8

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).

(3 offenders beat a person to death in carpark. The prosecution was unable to establish which blow was the fatal one or which of the 3 offenders administered it)

Question 9

Aiding by omission

Answer 9

The secondary party does not necessarily have to be present when the offence is committed. Eg, a person who supplies a key or deliberately leaves a door unlocked for a burglar is a party even when they are not present at the scene when the burglary is committed

Question 10

Define ‘Aids’

Answer 10

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.

Question 11

(Actual proof of assistance is required)

Larkins v Police

Answer 11

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 12

Three examples of assistance

Answer 12

• Keeping look out 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 13

Define ‘Abets’

Answer 13

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.

Question 14

Passive acquiescence may be considered abetting where there is a duty to act.

Answer 14

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 15

(Legal duty) Ashton v Police

Answer 15

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 CA61 he is deemed to be in charge of a dangerous thing.

Question 16

Provide an example of a secondary party having a legal duty to act and a right or power of control over the principal offender

Answer 16

An Army Sergeant who watches as a subordinate assaults another person and does nothing to prevented would be liable as a secondary party to the assault. This is because the sergeant has a power of control over the subordinate and a lawful duty to prevent such incidence and intervene

Question 17

(Special relationship) R v Russell

Answer 17

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.

(Following an argument, wife jumped into the pool with 2 sons, drowning them all. The accused charged with murder of all 3 after he failed to render assistance)

Question 18

Define ‘incites’, example

Answer 18

To incite means to rouse, stir up, stimulate, animate, urge or spur on the person to commit the offence. Eg a sports fan spurs on another fan to assault a protester and yells approval while the offence takes place

Question 19

Define ‘counsels’, example

Answer 19

Counsel means to intentionally instigate the events 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 that the counsellor knows the clear detail in respect of the offence to be committed. It is sufficient that they know that an offence of a kind was intended.

Eg a letter instructing on how to blow a safe found on offender at the scene of a commercial burglary.

Question 20

Define ‘procures’, example

Answer 20

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.

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

Eg. A woman obtains the services of a ‘hitman’ to kill her husband and offers money or sexual services to him as payment

Question 21

(Common intention) R v Betts and Ridley

Answer 21

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.

(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 22

A person charged as a party to murder will be guilty of murder, where they:

Answer 22

• Intentionally helped or encouraged it, or

- Foresaw murder by a confederate, as a real risk in the situation that arose

Question 23

A person charged as a party to murder will be guilty of manslaughter, where they:

Answer 23

• Knew the at some stage there was a real risk of killing short of murder, or
• Foresaw a real risk of murder, but the killing occurred and circumstances different from those contemplated, or
• Can be expected to have known there was an ever-present real risk of killing

Question 24

What is innocent agent. Examples

Answer 24

An innocent agent is someone who is unaware of the significance of their actions. An innocent agent cannot be convicted as a secondary party.

Eg. An offender prepares a poison and puts it in a wine glass before handing it to a waiter for it to be given to the intended victim.

Question 25

Establishing involvement of parties( 5 points)

Answer 25

• 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 26

Prosecution general points (8 points)

Answer 26

• A person is capable of conviction as a secondary party to an offence that has been committed, whether or not police at 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
• 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
• A person may be convicted as a secondary party to an offence for which he or she could not, themselves, commit. Eg. a quadriplegic offering advice and information on how to commit a robbery being physically and capable of committing the offence
• Any person who would have been a party to the completed offence is considered a party to any attempt carried out in circumstances where the substantive offence was unsuccessful
• Every party to an offence, maybe proceeded against and convicted of that offence, either together with the principal or before or after the principal is convicted of the offence
• Accomplice can be convicted of a lesser offence than the one that the principal offender is convicted of
• A secondary party to an offence may escape liability by a timely and effective withdrawal before the commission or attempt of the offence

Question 27

S311(2) CA61
Attempt to procure commission of offence

(Where no punishment is expressly provided, the penalty section to be applied)

Answer 27

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 28

Charges under s66(2)

Answer 28

Where s66(2) applies, ie the person is a party to a secondary offence or it is unclear which subsection applies, formulate the charge as for a principal offender