Parties to Offences Flashcards
R v Paterson
1976, COA
INNOCENT AGENT
Paterson told Brown to go to a flat and collect TV. Brown thought it was Paterson’s TV (had no MR of crime), in fact it is not. Paterson is charged with burglary.
Although Paterson did not do any of the AR we can read s 66(1)(a) as any person who actually (or constructively) commits the offence. Therefore people who use an innocent agent as an instrument to perform the physical act necessary to commit a particular crime can still be charged as the principal party.
Leading case.
R v Cogan and Leak (UK) and R v Cooper (NZ)
INNOCENT AGENT
Leak organizes for Cogan to have sex with his wife and tell Cogan that she consents, but she does not. (At the time of offence it was not possible to be convicted of raping your wife and consent was a subjective assessment).
Court adopts a pragmatic approach and says that although a man cannot rape his own wife with his body he can by using another innocent mans body.
R v Cooper, HC 1988, NZ
Adopts the Cogan and Leak decision into NZ that a person may actually commit an offence through an innocent agent and be the principal party even if the AR requires specific physical contract between the perpetrator and the complainant.
You can be the principal party by using the body of another.
–> unsettled law due to R v Millward
Police v B
INNOCENT AGENT
Former police officer uses another officers active code to defraud computer operator and get access to database information.
Court held that although the operator actually used the fraudulent access code it was the same as the officer standing behind the computer helping operator push the keys. Therefore actually committed the offence.
Qui facit per alium facit per se = “he who acts through another acts himself”, the operator was an innocent agent.
Larkins
HC
AIDING
Larkins heard about a burglary that was happening nearby so went to check it out. When he got there he decided he would be a police lookout. Someone else spotted the police and Larkins ran and hid.
held cannot be convicted as secondary party to burglary because the burglary had already been complete (they were inside the building) by the time he decided to help, therefore his help was not at the same time or contemporaneous to the principal party act.
Larkins set out more rules for aiding: there must be proof of actual/real aid, any act of assistance is deemed aiding no matter how insignificant, causation is not required, the principal party does not need to have knowledge of the aid.
Ahsin v R
2015, Supreme Court
The aid does not need to remain operative at the time the principal offence is committed. The actus reus is complete once the aid/encouragement is given.
Made law uncertain when (2) can be applied because held it can be applied even when the originally intended offence is committed - but allows a run around (1).
R v Shriek
1997, Court of Appeal
ENCOURAGEMENT
Set out specific rules on encouragement: the principal party must be aware that the encouragement was given therefore there needs to be some connection between the encouragement and the offence (but still does not require causation) and in SOME situations the mere voluntary presence (by stander) of the secondary party can qualify as abetting.
Charnley v R
2013, COA (NZ)
PRESENCE PRINCIPAL
Accused was present in house when a sexual conduct with an underage women occurred and was convicted as a secondary party for encouraging it.
Held that mere presence is not enough for secondary liability, you must have deliberately (with intention) not intervened so that the offence would take place.
Discusses the presence principle and that a person who is non-accidently present at a crime will only be liable where the omission was backed by an intention and actual encouragement.
R v Brough
1997, COA (NZ)
Exception to intention - intention is not required when assessing omission of legal duty.
Johnson v Youden
1950, COA
KNOWLEDGE OF ESSENTIAL MATTERS
Builder gets 50k more than statutory limit for sale of property. 2 partners of firm did not know about additional payment, third partner does know. Third partner instructed that extra payment is lawful.
Court held that first 2 partner cannot be liable as secondary parties because they did not know the essential matters that constitute the offence - had no idea there was an extra payment.
Held that the third partner can be liable because he did know about the extra payment which was an essential matter. The fact the lawyer got the law wrong is no excuse due to s 25 ignorance of the law is no excuse.
= If your completely in the dark and helping someone with something you do not have the MR required.
= secondary party must know the essential matters of the offence but they do not need to know the facts amount to an offence.
R v Bainbridge
1960, COA
KNOWLEDGE OF ESSENTIAL MATTERS
Bank robbery by using oxygen cutting equipment - principle party brought this equipment from Bainbridge 6 weeks prior to the offence. Bainbridge convicted for aiding.
Bainbridge suspected the equipment was going to be used for something illegal but he completely denied any knowledge that the bank would be the target (did not know of the plan).
Held this was an essential matter - It is not required that you know the exact details offence that is being committed but required to at least know what the type of offence intended is.
R v Baker
1909, COA (NZ)
KNOWLEDGE OF TYPE OF OFFENCE
Baker writes a letter to Scott instructing him how to open safes with explosives. Scotts breaks into the premises with explosives, find safe and then leaves out of fear. Leaves without entering safe but did use explosives to enter building.
Liable for secondary liability.
It was reasonable that someone would think explosives are used to break into something - it was irrelevant that the explosives were used to break into door rather than the lock which the advice was directed at because they are the same “type” of offence.
If you don’t know the essential matters, it is enough to know the type of offence (without knowing the details).
R v Kimura
1992 (COA)
KNOWLEDGE OF TYPE OF OFFENCE
Charged with aiding in aggravating robbery by driving get away car. Trial judges directed jury that it doesn’t matter whether Kimura knew there was a knife involved or not. Kimura appeals that knowledge of the knife is an essential matter and therefore offences are not of the same type.
Not liable because did not have knowledge of the knife - held that robbery and aggravated robbery are not the same type of offence.
R v Hartley
2007, COA (NZ)
KNOWLEDGE OF TYPE OF OFFENCE
Hartley and three other insulting people one participant stabs someone (person died). Hartley did not know the principle party had a knife.
Not guilty as secondary party to manslaughter.
Once you add a weapon to the situation that crime is converted into a different type - crimes with weapons are not the same type as similar crime without the weapon.
R v Maxwell
1978, (UK)
KNOWLEDGE OF RANGE OF OFFENCE
The defendant (a member of terrorist organization) drove military men to a destination knowing they were intending to carry out some form of violent act. He did not know the precise type of offence.
Was enough for MR because Maxwell knew that some form of violence was going to be committed and had knowledge of the situation that meant he knew the range of what the offence would be he is liable.
Has been confirmed in NZ.
Heta v Police
2003, HC (NZ)
Father and son kidnapped V. Son notified father when V untied himself. Son the was only 15 years old and was frightened by his father.
Held can be liable even if the secondary party gives assistance out of fear of the principle party.
All that should have been asked is: Is it vertically certain that help would aid/encourage? What we care about is if it is virtually certain that what you do would help commission of an offence. Here it is virtually certain that notifying would help in kidnapping.
