Parties II

Question 1

Parties to Offences

Legislation 66(2)

Answer 1

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

Common intention

Answer 2

In situations where two or more offenders form a common intention (an agreement) and embark on a joint enterprise (commit an offence) together, for example a robbery (offence A), all who entered into the agreement can be charged as parties to that offence (offence A).

Question 3

Joint enterprise – murder

Answer 3

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

1. Intentionally helped or encouraged it, or
2. Foresaw murder by a confederate, as a real risk in the situation that arose.

Question 4

Joint enterprise – manslaughter

Answer 4

Everyone who is party to manslaughter where:

1. There was a real risk of killing short of murder, or
2. Foresaw a real risk of murder, but the killing occurred in circumstances different from those contemplated, or
3. Can be expected to have known there was an ever-present real risk of killing.

Question 5

Innocent agents

Answer 5

Innocent agents are sometimes used by the offenders. An innocent agent is someone who is unaware of the significance of their actions.

In cases where the offenders use an innocent agent to bring about the actus reus, the innocent agent is not regarded as a participant in the offence, they are simply the mechanism. The law treats the offender as the principal in such cases.

An innocent agent cannot be convicted as a secondary party.

Example:
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. Despite it being the waiter who gives the victim the poison, it is the offender who is responsible for the offence committed.

Question 6

Establishing involvement of parties

Answer 6

The involvement of parties may be established by:

1. 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.
2. The principal offender acknowledging or admitting that others were involved in the offence.
3. A suspect or witness admitting to providing aid or assistance when interviewed.
4. A witness providing you with evidence of another person’s involvement based on their observations.
5. Receiving information indicating that others were involved in the offence.

Question 7

Difference between sec 66(1) and 66(2)

Answer 7

S66(1)(a) to (d) Deals with situations where the people involved are a party to the intended offence.

S66(2) 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 8

Liability to an offence if you are party to it

Answer 8

Everyone who is a party to an offence is also liable for the actions taken by any one of the parties in furtherance of the common intention, including any unusual consequences, unless the action taken goes beyond what was tacitly agreed to.

Question 9

What is the distinction between ‘aiding and abetting’ and ‘inciting, counselling and procuring’?

Answer 9

In general terms, ‘aiding and abetting’ requires the aider or abettor to be present at the scene before or at the time of the offence being committed, whereas ‘inciting, counselling and procuring’ describe the actions taken before the offence is carried out.

Question 10

In what situations does a person become liable as a party to an offence under s66(1) of the Crimes Act 1961?

Answer 10

• 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.

Question 11

Example of sec 66(2) Party to an offence

Answer 11

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.