Party Liability 66 (1) Flashcards
Party Liability- Section 66 (1) & (2):
Party liability → two ways to make people liable → deliberately helps or coerces someone to do an offence → be a lookout for example → helped by being a pair of eyes by ensuring not caught for example
Or agree with one or more people → to carry out an unlawful act → and everyone there becomes caught in net of liability irrespective of which part they play
The offence carried out is agreed upon by everyone in group → and additional offences have serious offences that may occur → as a probable consequence → something that could have happened by someone in the group as well
Who is liable?
Andy, Bart, Cody and Dave all go to Eastern High School and are in year 13.
Since the beginning of the year, they have bullied Vern who is a year 9. One day after school they all catch Vern behind the bike sheds, and they steal his backpack. They throw it around a bit and Vern eventually gives up and gets on his bike to ride home.
Andy, Bart and Cody get into Andy’s car and start driving home. They have Vern’s backpack in the car with them. They plan to give it back to him at school the next day. On the way home they get a text from Dave saying he’s just passed Vern on his bike on the motorway - they should see if they can throw his backpack at him as they drive past. They all think this is a hilarious idea and Bart, who is in the front passenger seat says he’ll keep a lookout for him. Cody who is in the back puts down the window and holds up the backpack.
Bart finally spots Vern on his bike and yells at Andy to get closer. Andy pulls as far over as he can as they go past, and Cody throws the backpack at Vern out the window.
The backpack hits Vern off his bike and he lands in front of an oncoming car. He is instantly killed. Who is liable for his death?
Cody threw back pack → most likely liable
Andy driving → most likely liable
Bart keeping lookout → potentially liable?
Dave → potentially liable
Aiding assisting and encouraging → s61
Agreement between them → had you reached by words or conduct to agree or carry out by a joint enterprise or common purpose → and therefore everyone gets caught in that net.
Dave → still providing assistance → just passed Vern on his bike → so can stretch quite wide
Introduction: What is party liability and why do we have it?
- Party Liability is about making a number of individuals liable for an offence in circumstances where they have deliberately helped, encouraged or agreed with someone else to commit the offence even though they themselves did not commit the offence.
- Party liability treats all participants in the offending as guilty of the offence that is actually committed by one or more of them - derivative liability.
Concept → making number of individuals liable in offence where they all helped encouraged or played a part → don’t have to commit the offence yourself → not about capturing just person who committed the AR and MR → also people that helped →
Treats everyone caught on that net as the same → charged with same offence → all charged with same sentence potentially
Sometimes those that are most liable are not those that are doing the AR and MR of the offence → so party liability helps capture those people
But also captures people that may not be morally culpable → the provision is stretched
Example: Bank Robbery:
Four men decide to rob a bank. One of them sources guns for everyone and steals a car to use as the getaway car. They all get in the car, one of them acts as the getaway driver. When they get to the bank, one man gets out and acts as the lookout, the getaway driver stays in the car and the other two go into the bank.
Whilst in the bank, one of the men threatens the customers and staff in the bank with a gun while the other man goes into the vault and puts the money in a bag.
They all played a different role on the robbery but under party liability they are all equally liable for the aggravated robbery despite the fact only 2 of the men went into the bank and actually obtained the money.
Lookout, threatener, person taking money → all liable for ag rob → despite the fact that only two men in the bank carried out the AR of the offence →
Party liability
S66:
(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
d)Incites, counsels, or procures any person to commit the offence.
(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 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.
Stat provision → party liability (codified s66) →
Everyone is a party to and guilty…
Actually commits
Does or omits an act for the purpose of aiding any person to commit
Abets
Incites, counsels, or procures person to commit
Words have overlap → different criteria but sometimes dont have to mention → secondary party dependant and the role that they played
AB → principal offender
CD → secondary party/s who helped
Bank → principal → two guys in bank → secondary —> lookout and getaway driver
Net being cast over everyone who has a agreement to carry out common purpose or joint enterprise
Prosecute unlawful purpose → carry out unlawful purpose (2)
All agree → and one person goes and commits the offence → then in the course of that the person does something additional in carrying out this joint enterprise → if probable consequence of carrying out this joint enterprise then everyone is caught
Used to be → when there was an additional offence → joint enterprise → everyone agreed to do something → additional → and that is a probable consequence to make them liable for that additional offence that was carried out
Ways you can be liable:
- Principal Party - you actually do the crime: s 66 (1) (a)
- Secondary party - help or encourage someone to commit a crime (aid, abet, incite, counsel or procure), knowing the type of crime they are planning to commit and intending to help or encourage them:
S 66 (1) (b)-(d)
- Secondary party - join others in a criminal purpose, being reckless about the commission of incidental crimes (the common purpose doctrine): s 66 (2)
- Accessory after the fact. Not a party. THIS IS A SEPERATE OFFENCE UNDER s71.
S66 → three pathways to liability → principal party, and secondary party (b or d), and three → joined with others in criminal purpose → and that purpose or offence has occurred or something happened incidentally and you become liable for that as well.
Fourth way → not party liability → someone assists after offence carried out → someone killed then help burying → so become an accessory after the fact
Does it matter which section is used to establish party liability?
- Under s66 (1) must actually assist or encourage the offence; under s 66 (2) need not provide any assistance or encouragement.
- Under s 66 (1) must have knowledge and intention; under s 66 (2) recklessness is sufficient.
- Why are they different?
- Under s 66 (2) there are more relaxed requirements because the defendant is already a wrongdoer; they joined an unlawful purpose
S66 (1) → must actually assist, encourage or help → this must actually happen → knowledge about what will happen → and intend to assist
S66 (2) → dont have to actually assist or encourage or do anything → if join common purpose you don’t have do that to be liable →
S66 (2) p→ recklessness is enough → because requirements are more relaxed because already considered to be a wrongdoer, ie have joined an unlawful purpose →
If you are a reluctant wrongdoer in this party → this could still be stretched on to you.
Rationale for secondary liability:
Section 66(1) – deliberately helped or encouraged
u
Section 66(2) – signed up for the goals of the common purpose so accused must accept responsibility for any wrongs that flow from it; enhanced the risk of secondary offending by putting their weight behind the main offending; failed to prevent the secondary party from offending; is liable for a form of collective responsibility based on membership in an unlawful concert.
(1) → deliberately helped and encouraged
(2) → signed up for the goals of the common purpose → so liable for anything that follows as long as it is seen as being probable consequence of the common purpose
Party liability- liable for the same offence and penalty as the principal:
uS66 is a general provision-charged under the offence and s66 of the Crimes Act.
uYou are convicted of the same offence as the person who committed the AR and MR of the offence and subject to the same penalties.
uDerivative liability (liability dependent on principal having committed a crime)
uTwo types: 66(1) and (2)
If you look at how it works with regard to practicalities → can be attached to any offence → most offences
Charged with offence itself and under s66
66 (1) or (2) → prosecution will do both usually → subject to same penalties as offence
But in sentencing secondary party is usually given lower sentence due to lower role in the offending.
Section 71- Accessory after the fact
(1) An accessory after the fact to an offence is one who, knowing any person to have been a party to the offence, receives, comforts, or assists that person or tampers with or actively suppresses any evidence against him, in order to enable him to escape after arrest or to avoid arrest and conviction
(2) With knowledge the person committed an offence and an intention to help them escape liability.
If you assist person you can become liable under s71 → after.
Ahsin v R [2015] NZSC 153, 1 NZLR 493.
Four people are driving around one evening; two men and two women.
They belong to one gang with both men being patched members. The woman driving the car is in relationship with one of the men and the other is just “associated” with the gang.
The group were involved in a number of altercations, involving shouting insults and threats at supposed rival gang members, one one occasion one of the men threatened to stab a rival gang member in the face and he is holding a large knife at the time.
Later in the evening they came across a person walking along the street wearing rival gang colours. The woman driving did a U-turn and stopped the car next to the person. The person who is walking along the street is heavily intoxicated and he tried to get into the car.
The four people got out of the car and push and pull him out of the car. The two men then punched the person – one of the woman was screaming ‘that’s enough” “let’s go.”
One of the men went back to the car, grabbed a short handled axe and hit the victim repeatedly on the head- victim fell to the ground. One of the woman continued to scream to the men to get back in the car, they jumped back in the car and the woman then drove them away.
The victim, Paul Kumeroa, died from his injuries.
The man who hit the victim is guilty of murder.
Should the other man and the two women also be held guilty of murder or manslaughter or assault?
Should the women be convicted of nothing on the basis that they did nothing that was wrong other than drive around in a car yelling abuse at people, helping to pull a man from a car – the criminal wrong was committed by their friend?
Ms Rameka
and Ms Ahsin
For 66 (1) and (2) → Ramaka (CA), and Ahsin (SC)
Two people driving around, two members patched members, one girlfriend of patched member, and other friend was associated → threatening people earlier in the day, found a spanner in the car → went to river and threatened Mongrel mob members → and one of the guys threatened someone with a knife
Later in the evening → after they went to a party and a altercation with the woman and someone else → and driving and saw a guy wearing mongrel mob colours → did a u turn (woman driving) → went alongside the mongrel mob guy → who was drunk
They pulled him out of the car → and the two men started punching him → one woman was saying thats enough
Then one of the men grabbed axe and hit man repeatedly in head → then jumped in the car and drove off.
And he died of his injuries
The man who carried out the assault with axe was guilty of murder
Charges were brought against the other three of murder → Crown alleged that the women were secondary parties and other man → assisted and encouraged under 66 (1) by assisting → the women has provided encouragement as well
The driver of the car Ms Ahsin assistant by driving, and acting as getaway driver → and other woman yelled encouragement to man who committed assault → and also helping to pull victim from the car
And also charged with s66 (2) → enter in joint purpose by intimadating black power members (rivals) → Injury likely to cause death, or reckless → and that was found to be a probable consequence of intimidating black power members
One of them drove the car → and some evidence of them protesting against it to stop and get out → they had no part in it apart from pulling victim from the car
This went all the way to SC → the SC said the result was wrong → and sent it back for a retrial → and that process took many years → then in 2015 plead guilty to manslaughter
Miss Ramaka found not guilty in 2016 → shows how it stretches super far.
Can stretch into areas where people have done nothing wrong
Elements for s66(1) - Ahsin at [82-83]-
1)The offence to which the defendant is alleged to be a secondary party, was committed by a Principal party, and
(2)The secondary party aided, abetted, incited, counselled or procured the Principal party in the commission of the offence by words or conduct or both, and
(3)The secondary party intended to aid or encourage the Principal party to commit the particular offence
(4)The secondary party knew both the physical and mental elements of the essential facts of the offence to be committed by the Principal party
First must show that offence itself committed by a principal party → that person carried out AR and MR
For secondary party liability → must have a principal party
Tema → trying to show this person was a secondary party for assisting in consumption of drug and the death → on basis that there was a principal party → but principal party not guilty of anything → as suicide is not an offence →
Second element → aided abbetted, incited, counselled or procured principal party → by words or conduct or both →
MR requirements means must intend to aid or encourage →
then second MR → must know the physical and mental elements of the essential facts of the offence
Party liability under s 66(1):
- Actus reus - Aiding, abetting, inciting, counseling or procuring the Principal
• Prior to or
contemporaneous with the offence being committed
Mens rea - An intention to aid or encourage the Principal to commit that crime
•
Knowledge of the type of criminal offence which the Principal is planning to commit
Broadly → when you carry out AR for s66 (1) → that has to be prior, or contemporaneously (same time) →
MR → intention for the AR, and knowledge of the type of criminal offence
- Offence must have been committed by a Principal Party:
•
•Secondary party liability is derivative
•Individual Principals - a number of principals in respect of the same crime
•Joint principals in respect of one crime
•A principal acting through an innocent agent
Can find principal in number of ways → number of principals → each carrying AR and MR
Or if they carry out the AR and MR together →
Individual principals:
Each person commits the actus reus of the offence with the requisite mens rea.
Example: A number of people attack one person. They surround him - each punching him and kicking him until he is unconscious.
Individual principles → both carrying out the AR and MR of the offence → Each person is a principle party of the offence
Joint principals:
Each person separately satisfies part of the actus reus of the offence - both have the mens rea of the offence.
Two armed robbers go into a petrol station with the intention of robbing it. One points their firearm at the attendant, whilst the other empties the till.
One has therefore committed an aggravated assault, whilst the other has committed robbery – together comprising the actus reus of aggravated robbery.
Both have the mens rea for aggravated robbery and are liable as joint principals for that offence.
The law on joint principals is suitable for complex transactions involving fraud or forgery in which there is a division of labour in the performance of the actus reus for the offence and it is artificial to treat the last person in the chain as the principal:
For example, Ngamu v R [2010] NZCA 256
Each carrying out the AR and MR → Dont charge them separately → both carry the actus reus of agg rob → both have requisite mens rea so joint principals for that offence
Ngamu v R
A cheque theft ring - some members of the group were responsible for stealing the cheques, others for altering the payee information and banking them into the accounts of secondary participants and some with recruiting the participants who would allow their bank accounts to be used for this purpose. Joint principals of “dishonestly and without claim of right using a document to obtain a pecuniary advantage” under s 228(b). It was a “forced and unnatural” analysis to proceed as though only the person banking the cheque was using the check, helped by the others.
Theft ring → members were responsible for stealing checks → others banked them into accounts of secondary parties → and others recruited others
Without claim of right obtain a document
→ secondary parties all were involved in the actus reus of the offence
