Parties to Secondary Offence

Question 1

S 66 (2)

Answer 1

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 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 commission of the common purpose.

Question 2

R v Betts and Ridley - common intention

Answer 2

“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.”

Question 3

Question of Fact

Answer 3

Jury decides 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.

Question 4

Probable Consequence

Answer 4

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 Person A to think that the commission of Offence B is more likely than not. It will be sufficient where it can be demonstrated that Person A knew there was a substantial or real risk or that Offence B could well happen.

Question 5

Two qualifications to be satisfied under the general rule in relation to Probable Consequence?

Answer 5

Qual 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.

Qual 2: There is no requirement that Person A’s foresight of Offence B include any appreciation of the consequence of the physical elements of the offence committed (Offence B), but for which no mens rea element is required.

Question 6

When is a person party to murder or manslaughter?

Answer 6

A person will be a party to murder where they:

• intentionally helped or encouraged it, or
• foresaw murder by a confederate, as a real risk in the situation that arose.

Party to 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.

Question 7

Innocent Agents

Answer 7

Someone who is unaware of the significance of their actions.

Used by offenders to bring about the actus reus. Not regarded as a participant in the offence. They are simply a mechanism. The offender is the principal.

Cannot be convicted as a secondary party.

Question 8

Establishing involvement of parties by…(5)

Answer 8

• Reconstruction of the offence, indicating more than one person was involved or that the principal received advice or assistance.
• The principal acknowledging or admitting that other were involved.
• A suspect or witness admitting to providing aid or assistance when interviewed.
• A witness providing evidence of another person’s involvement based on their observations.
• Receiving information indicating that others were involved in the offence.

Question 9

Charges under S 66(2)

Answer 9

Where 66(2) applies (i.e. person is a party to a secondary offence) or it is unclear which subsection applies, formulate the charge as for a principal offender.