Parties to

Question 1

Parties to
S66(1)

Answer 1

Everyone 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
(a) Incites, counsels, or procures any person to commit the offence

Question 2

What must be proven?

Parties to

Answer 2

The following must be proven:
1. The identity of the defendant
2. An offence has been successfully committed
3. The elements of s66(1) have been satisfied

Question 3

When participation must have occurred

(Timing of participation as party)

Answer 3

To be considered a party to an offence, participation must have occurred before or during the commission of the offence and before completion of the offence.

Question 4

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

Party Encourage Not Enough

Answer 4

Per R v Pene, a party must intentionally help or encourage - it is insufficient if they were reckless as to whether the principal was assisted or encouraged.

Question 5

Multiple offenders (R v Renata)

Answer 5

In R v Renata, the court held that where the principal offender(s) 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 in s66(1).

Question 6

Secondary offenders

Timing and the distinction between principal and secondary offenders

Answer 6

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).

Where the act was part of the original planning, e.g. providing a means of escape, then the person who committed this act would be deemed to be a principal party.

Question 7

Define the terms act and omission

Answer 7

Act - to take action or do something, to bring about a particular result

Omission - The action of excluding or leaving out someone or something, a failure to fulfil a moral or legal obligation.

Question 8

Actual proof of assistance is required (Larkins v Police)

Provide examples of assistance.

Answer 8

While it is unnecessary that the principal should be aware that he or she is being assisted, there must be proof of actual assistance.

Examples of assistance:
1. Keeping lookout for someone committing a burglary.
2. Providing a screwdriver to someone interfering with a motor vehicle.
3. Telling an associate when a neighbour is away from their home so as to allow the opportunity to commit a burglary.

Question 9

Define the terms aid and abet

Answer 9

Aid - To aid means to assist in the commission of the offence, either physically or by giving advice or information
Abet - To abet means to instigate or encourage; that is, to urge another person to commit the offence.

Question 10

Define the following terms:
-Incite
-Counsel
-Procure

Answer 10

Incite - To incite means to rouse, stir up, stimulate, animate, urge or spur on a person to commit an offence

Counsel - To counsel means to intentionally instigate the offence by advising a person(s) on how best to commit an offence, or planning the commision 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.

Procure - To procure means 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.

Question 11

Legal duty (Ashton v Police)

Example of situation where legal duty exists - driving

Answer 11

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 section 156 of the Crimes Act 1961, he is deemed to be in charge of a dangerous thing.

Question 12

Legal duty

Example of situation where legal duty exists - military

Answer 12

An army Sergeant who watches a subordinate assault 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.

Question 13

Explain party to a secondary offence

Offences stemming from initial offence

Answer 13

Section 66(2) - Where two 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 of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosectuion of the common purpose.

Question 14

“Probable consequence”

Answer 14

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.

Question 15

R v Betts and Ridley

Answer 15

Regarding 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 liable for the violence used.

Question 16

“Innocent Agent”

Answer 16

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

E.g. poision is passed to a waiter who is unaware of the nature of the substance, but who in delivering the substance brings about the victim’s death. The waiter’s involvement was key to completion of the offence, but his lack of knowledge and intent makes him an innocent agent.

Question 17

Investigation procedure

Establishment of involvement of parties

Answer 17

The involvement of parties may be established by:

1. A reconstruction of the offence committed
2. The principal offender acknowledging or admitting that others were involved in the offence
3. A suspect or witness admitting 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 18

Define “special relationship” and provide an example where this would apply (R v Russell)

Answer 18

Where there is a special relationship and no intervention on the part of the person who would be party, then this might amount to approval and encouragement of the principal offender’s actions.

This concept is highlighted in Russell where 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 asssitance to his wife or their children.

The court in R v Russell held that the accused was morally bound to take active steps to save his children, but by his deliberate abstension 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.