Parties to the Offence Flashcards
S 66 (1) a, b, c and d
Every one is a party to and guilty of an offence who -
(a) actually commits the offence
(b) does or omits an act for the purpose of aiding any person to commit the offence
(c) abets any person in the commission of the offence
(d) incites, counsels or procures any person to commit the offence
Elements - Must prove? (3)
When must participation occur?
R v Pene: “A party must…”
Must prove:
- The identity of the defendant
- An offence has successfully been committed
- The elements of 66 (1) a, b, c and/or d have been satisfied
Participation must occur before or during the commission of the offence and before completion. Someone who assists after completion is an accessory
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.”
Principal vs secondary parties
R v Renata
Person will be principal offender and liable under 66(1)(a) where he/she satisfies mens rea and actus reus of the offence. May be more then one principal.
Secondary parties are those whose assistance, abetment, incitement, counselling or procurement is sufficient under 66(1)(b), (c) or (d). Liable due to their participation in an offence committed by the principal offender.
R v Renata:
“The court held 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).”
Aids
To assist in the commission of the offence, either physically or by giving advice or information. Presence at the scene is not required.
Not always necessary that the principal was AWARE they were being assisted by a secondary party.
No requirement that the principal(s) AGREE to be assisted by the secondary.
Larkins v Police - Proof of assistance required
Examples of assistance (3)
“While it is unnecessary that the principal should be aware that he or she is being assisted, there must be proof of actual 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
Person A has a legal duty to act and a right or power of control over Person B.
Person A fails to observe or discharge the duty by exercising that control to prevent B committing an offence.
Abets
Abets by omission?
To instigate or encourage. To urge another person to commit an offence. Presence at the scene is not required.
Mere presence is insufficient. Deliberate presence intended to signify approval of the acts of the principal will support an inference of encouragement.
Mere presence at the scene and witnessing the offence while doing nothing does not create liability UNLESS there is a special relationship between that person and the offender or where they owe a legal duty to the victim or general public.
Ashton v Police - legal duty
“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 S 156 of the Crimes Act 1961 he is deemed to be in charge of a dangerous thing.”
Also, army Sgt not stopping a subordinate from assaulting another person. Sgt has a power of control over the subordinate. Lawful duty to prevent such incidents and intervene.
R v Russell
“The court held that the accused was MORALLY BOUND to take active steps to save his children, but by his deliberate abstention from doing so, and by giving 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
Procures
Take place before the offence is carried out. Generally does not warrant presence at the scene at the time pf the incident.
Incites: to rouse, stir up, animate, urge or spur on a person to commit an offence, e.g. a sports fan spurs on another fan to assault a protestor and yells approval.
Counsels: to intentionally instigate the offence by advising a person on how best to commit an offence, or by planning the commission of an offence by another person. Don’t need to know the details, but do need to know the type of offence to be committed.
Procures: setting out to see that something happens and taking the appropriate steps to see that it does. Requires that the secondary party CAUSES the principal to commit the offence. Stronger connection. May be carried out by fraud, persuasion, words or conduct, e.g. offer of payment.
Charges under S 66(1)
Where 66(1) applies and it can clearly be shown how the suspect became a party, use the same wording as for the principal, prefacing the charge with: “was a party to…”
At the end of the charge, add: “…in that you did:
- aid
- abet
- incite
- counsel
- procure
- combination
…the commission of the said offence.”
Include the relevant option from 66(1) if known. 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:
- SoF is read on a guilty plea
- Evidence is heard in a JAT
Punishment
Where no punishment is expressly provided, the penalty section to be applied is S 311(2), Crimes Act 1961 - Attempt to Procure Commission of Offence:
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.
Specific party offences
Examples (4)
Where there is a specific charge of aiding, abetting, inciting, counselling or procuring, choose a charge under that section.
Inciting a person to resist a Constable - S 23(a), Summary Offences Act 1981
Participation in an organised criminal group - S 98A, Crimes Act
Associating with violent offenders - S 6A, Summary Offences Act
Associating with serious drug offenders - S 6B, Summary Offences Act
