Parties - Module Flashcards
Parties - Module
Introduction
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.
Parties to offences
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.
Offence committed other than offence intended
Section 70, Crimes Act 1961
(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.
ELEMENTS
Introduction Being a party to an offence is found in s66(1)(a) to (d) of the Crimes Act 1961.
What you need to prove
In each case of charging a person with being a party to an offence, you must
prove:
- The identity of the defendant, and
- an offence has been successfully committed; and
- the elements of the offence (s66(1)) have been satisfied.
Where there is more than one offence committed, the elements must be
applied to each offence separately.
When participation must have occurred
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.
Someone who provides assistance to either the principal or secondary
offender following the commission of an offence becomes an accessory after
the fact. They have not actively participated in the offence committed and
their liability is not for the original offence committed, but instead comes
about as an offence under s71 and s312 of the Crimes Act 1961. (Accessory
after the fact is discussed within this module).
Intention to help or encourage must exist
R v Pene (1/7/80, CA63/80).
A party must intentionally help or encourage - it is insufficient if they were
reckless as to whether the principal was assisted or encouraged.
Distinction between principal and secondary party
Generally, a distinction is made between the principal party (the person who
actually commits the offence) and the secondary party.
Principal party
A person will be a principal offender, and liable under s66(1)(a), where he or
she personally satisfies the actus reus and mens rea requirements of the
offence. (There may be more than one principal offender in relation to the
offence committed.)
Secondary party
Secondary parties are those people whose assistance, abetment, incitement,
counselling or procurement is sufficient under s66(1)(b),(c) or (d) of the
Crimes Act 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.
Actually commits the offence
Section 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, eg where two people actively
assault a third person, each of the offenders is a principal offender to the
assault.
Multiple offenders
There are two methods by which multiple offenders may be considered to be
principals.
Method 1: Each offender satisfies elements of offence committed
Each of the principal offenders may, separately, satisfy the necessary
elements of the relevant offence committed, as portrayed in the example
above where each of the offenders are independently guilty of an assault. 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).
Method 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. These
situations are true representations of joint principals working together, in that
it is sufficient that each party carries out part of the actus reus and as such
can be held liable.
Example:
An offender prepares a poison before handing it to the other offender to
administer the poison. In this example both offenders share the same intent.
In Renata15 three offenders beat a person to death in the car park of a tavern.
The prosecution was unable to establish which blow was the fatal one or
which of the three offenders administered it. The Court held that in matters
such as these, the prosecution should look to proving culpability through
mens rea and actus reus highlighted in s66(1).
R v Renata [1992] 2 NZLR 346 (CA)
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).
Secondary offenders
Those who assist the principal offender(s) either before or during the
commission of an offence are considered secondary offenders and thus their
liability generally lies within the scope of s66(1)(b), (c) or (d).
To be a 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 the acts are contemporaneous is dependant on the circumstances of
each case.
Where the act was part of the original planning, eg providing a means of
escape, then the person who committed this act would be deemed to be a
principal party.
However, a person cannot be convicted as a party for an offence that is
already complete. In such a case they would be liable as an accessory.
Does or omits an act
See the earlier discussion on acts and omissions in addition to the following
discussion.
The secondary party does not necessarily have to be present when the
offence is committed. For example, 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.
Aids
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.
The decision in R v Turanga 16 affirmed that presence at the scene is not a
requirement for any form of secondary participation. The central question in
any case is whether the accused did in fact help the principal party.
Although ideal, it is not always necessary that the principal(s) should be
aware they are in fact being assisted by a secondary party, provided the
principal is in fact assisted in some way by the actions of the secondary
party.
There is also no requirement that the principal(s) agree to said assistance for
a conviction to be recorded. A cautionary approach should however be taken
in such circumstances.
Actual proof of assistance is required:
Larkins v Police [1987] 2 NZLR 282; (1987) 3 CRNZ 49, 290; 57
While it is unnecessary that the principal should be aware that he or she is being
assisted, there must be proof of actual assistance.
In the majority of cases there has been a meeting between the principal
offender and the party prior to an offence being committed. However this
isn’t always necessary for a person to be liable as a party to an offence. It is
essential however that there is proof that actual assistance was provided for a
person to be seen as a party to an offence.
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
allow the opportunity to commit a burglary.
Aiding by omission
Note that 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.
Abets
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.
Example: 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.
Both R v Loper 17and R v Makita 18murder and robbery matters respectively,
looked at offender’s culpability by way of presence and encouragement. In
both cases it was held that 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.
Passive acquiescence may be considered abetting
Similar to “aiding by omission”, discussed above, 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.
Legal duty
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.
Ashton v Police [1964] NZLR 429
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.
Example:
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.
This is because the sergeant has a power of control over the subordinate and
a lawful duty to prevent such incidents and intervene.
Special relationship
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.
This concept is highlighted in Russell19where following an argument
between the accused and his wife, the wife, in the presence of the accused,
allegedly jumped into a swimming pool with both children, drowning them
all. The accused was charged with the murder of his wife and two sons after
he failed to render assistance to his wife or their children.
R v Russell (1933) VR 59
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.
‘Incites’, ‘counsels’ or ‘procures’
The following three categories that enable someone to be convicted as a
party (incites, counsels or procures) take place before the offence is in fact
carried out, and generally does not warrant the attendance of the inciter,
counsellor or procurer at the scene, at the time of the incident. However such
a person’s involvement may continue on to a point where they are in fact
present at the scene of the incident.
Incites
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.
Counsels
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.
An example of counselling can be found in Baker20where a letter, authored
by another party and instructing on how to blow a safe, was found in the
possession of two offenders, at the scene of a commercial burglary. The
letter writer was charged as a party, despite the fact he was not aware of the
time, manner or place to be burgled.
Procures
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.
Example:
A woman obtains the services of a ‘hit man’ to kill her husband and offers
money or sexual services to him as payment.
Any person
Any person carries its natural meaning and in relation to parties means any
other person.
Elements: Party to a secondary offence
Introduction Party to a secondary offence is found in s66(2) of the Crimes Act 1961.
Elements Section 66, Crimes Act 1961
(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.
Common intention
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).
They can also be charged as parties to any other offence (offence B) that any
one of them commits in order to assist in the commission of the offence
originally agreed to (offence A), provided that the other offence (offence B)
is known to be a probable consequence of the prosecution of their common
purpose (offence A).
This extends to include any unusual consequences that arise from pursuing
the jointly intended offence (offence A). 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 (offence B).
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.
In R v Betts and Ridley21 , Victor Betts and Herbert Ridley agreed to rob a
man, William Andrews, as he was on his way to the bank. Their plan was that
Betts would push the individual to the ground and snatch his bag. Meanwhile
Ridley would be waiting around the corner in a getaway car. However, Betts
struck Andrews with such force that he died as a result of the blow.
Both were subsequently convicted of murder and sentenced to death. An
appeal against the murder conviction by both men was dismissed. However,
the Home Secretary advised the King to commute the death sentence in the
case of Ridley to life imprisonment. Betts was subsequently hanged.
R v Betts and Ridley (1930) 22 Cr App R 148.
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.
A question of fact
Whether a defendant knew that furthering their common aim in a particular
way would probably result in another of the parties committing a particular
offence is a question of fact, on which the jury must decide.
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.
There are two qualifications to be satisfied under the general rule in relation
to probable consequence:
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
Joint enterprise – murder or manslaughter
A person charged as a party to murder will be guilty of:
Murder, where they:
* intentionally helped or encouraged 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.
Innocent agents
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.
In Paterson22 an innocent person was asked to uplift a TV set from a flat
which the accused, Paterson, pretended to own. Where an innocent agent is
used, the act is regarded as the act of the person who incites or employs the
innocent agent, and that person is regarded as the principal offender. The
innocence of the agent may arise from their youth, a mental deficiency, or an
ignorance of the facts or some other cause.
Investigative procedure
Introduction The same procedures should be adopted when investigating parties as would be employed in respect of the principal offender. It is usual that parties will be discovered during the course of a thorough investigation.
Establishing involvement of parties
The involvement of parties may be established by:
* 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.
Prosecution
Time limits Any time limits associated with charging a person as a secondary party is the same as that for the principal offender(s).
General points
- 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, 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. The limitation may be by reason of
sex, age, or some other qualification or status and thus they are held to be
incapable of actually committing the offence in terms of s66(1)(a).
However such a person can be guilty of such an offence as a secondary
party, such as a quadriplegic offering advice and information on how to
commit a robbery being physically incapable 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 (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. The Court of Appeal, in R v Hartley23
ruled that in a gang shooting, an accomplice could be convicted of
manslaughter and the principal offender could be convicted of murder. - In R v Pink 24it was found that 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 aggravated robbery
under s235(b). This is because the collective element of being together
with any other person or persons displaces s66(1)(a)-(d).
Formulating charges under s66(1)
Where s66(1) applies and it can be clearly shown how the suspect became a
party to the offence, you must use the same wording as for the principal
offender, prefacing the charge with the words ‘was a party to’.
You must also add at the end of the charge “…in that you did:
* aid
* abet
* incite
* counsel, or
* procure … (use one or a combination of these words, eg ‘aid and abet’ or
‘counsel and procure’)…the commission of the said offence.”
Although it is not legally necessary to refer to s66 in the charge, it is better
to include the relevant option from s66(1) if it is known. This ensures the
defendant is aware of the basis of the charge filed. If this is not done, the
prosecutor must advise the court that the defendant is charged as a party,
before:
* the summary of facts is read out on a guilty plea
* evidence is heard in a judge alone trial.
Penalties
Where no punishment is expressly provided, the penalty section to be
applied is s311(2) of the Crimes Act 1961.
Section 311(2), Crimes Act 1961
Attempt to procure commission of offence
(2) 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.
Charges under s66(2)
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.
Specific party offences
Where there is a specific offence of aiding, abetting, inciting, counselling or
procuring, choose a charge under that section
An example of this would be Inciting a person to resist a Constable – s23(a)
Summary Offences Act 1981).
Note: In offence provisions such as s23(a), which specifically refer to the
actions of the secondary party (ie “inciting”) you do not cite s66 on the
charge. This is because the secondary element of “inciting” is an element of
the substantive offence under s23(a), namely inciting a person to resist
arrest.
Examples of specific parties-related offences
Some examples of association offences are:
* s98A Crimes Act 1961 Participation in an organised criminal group
* s6A Summary Offences Act 1981 Associating with violent offenders
* s6B Summary Offences Act 1981 Associating with serious drug
offenders.
