Parties Flashcards
What is a party to an offence?
A party to an offence is any person involved at any or all stages of preparing for, attempting, or actually committing an offence. This includes a person who incites or counsels another to commit the offence.
Section and elements of parties
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 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 needs to be proved
In each case of charging a person with being a party to an offence, you must prove:
x The identity of the defendant, and
x an offence has been successfully committed; and
x the elements of the offence (s66(1)) have been satisfied.
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).
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
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
What does incite mean
To incite means to rouse, stir up, stimulate, animate, urge or spur on a person to commit the offence. For example, a sports fan spurs on another fan to assault a protester and yells approval while the offence takes place.
What does counsel mean
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.
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 that kind was intended. Thus, it is sufficient for the person to know that a robbery is to be committed; they need not know the actual target address nor the details of the intended victim.
There is no specific need for the person offering advice or assistance to be completely familiar with the offence intended.
What does procure mean
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.
Discuss party to a secondary offence
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.
Define probable consequence
Whether an outcome is ‘known to be a probable 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 them (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 they (person A) knew there was a substantial or real risk or that the offence (offence B) could well happen.
However, where the person (person A) thinks the risk of the offence
(offence B) being committed by their co-offender (person B) is negligible or only remotely possible then the mens rea required on the part of person A will be lacking.
