Party Liability S 66 (2) Flashcards

Question

R v Witika [1993] 2 NZLR 424 at 43, (1992) 9 CRNZ 272 (CA) at 279

Answer 1

Wilful Blindness to the risk of the commission of the offence is enough for liability S66 (1) → dont need to know the precise details → just need to know that the type was a real risk → R v Wikita → did not matter that she did not know the nature of the ill treatment of child → or knew it would be a blow, or way she would die → it was the ill treatment that was enough. Level of harm → more serious common purpose → will be more likely to see it as probable consequence → vice versa.

Answer 2

uDoes the Secondary party have to know that death of the victim was a probable consequence of the prosecution of the common purpose? u If the Secondary party must have foresight of the essential elements of the offence- does that include the essential element of a homicide given culpable homicide is a necessary element of both manslaughter and murder? Burke and Edmonds leads to death of victim. Common unlawful purpose carry out some level of assault and victim was killed sometimes with weapon and sometimes not. Definition of culpable of homicide → whether one human killed another → when you think about essential elements → has to be reckless to that occurring → did they see it as a probable consequence that someone would die → Majority in Burke → do not need to foresee the probable consequence of committing an assault that a death might occur Wilfull blindness will suffice for s66 (1) and ss66 (2).

Answer 3

Murder – secondary party must know that the Principal could well kill with murderous MR or intended to cause bodily injury which the Principal knew was likely to cause death- Edmonds v R , also see R v Tomkins [1985] 2 NZLR 253 Felony Murder – R v Rapira [2003] 3 NZLR 794, (2003) 20 CRNZ 396 (CA). Secondary party must know that victim could well kill → or that they intended to cause bodily injury → Edmonds → made clear that for murder the person must forsee the probability of death Felony murder → principal does not need to intend that death occur, or forsee → covers situations where defendant meant to cause GBH for someone facilitating commission of offence. And reinforced in Rapira → principal does not need to mean or intend death → and the secondary party does not need to know that either → secondary does not need to have a higher level of intention or foresee level of principal.

Answer 4

Rapira (2003) 20 CRNZ 396 distinguished the cases requiring foresight of death as dealing with murder under s 167, where it has always been accepted that it must be established that the secondary party had foresight that the principal would commit the act causing death whilst possessing the mens rea required for s 167 murder: intention or recklessness as to death. In Rapira the issue was s 66(2) liability in respect of a felony murder under s 168 and the court held that “[j]ust as intention to kill or knowledge that death is likely to ensue is not necessary for the liability of the principal under s 168, it is not necessary for a secondary party.” It went on to suggest that it is also “not necessary for the offence of manslaughter that death be intended or foreseen by a secondary party,” so long as they foresee the unlawful act performed by the principal that “attracts the operation of the law of manslaughter if death ensues.”

Answer 5

Burke was present when the victim was to be given a “hiding.” The Principal Party pulled out a knife and stabbed the victim 14 times- victim died. Trial judge said that Mr Burke was liable under s 66(2) if during a common unlawful purpose to commit a “physical beating or hiding”, he foresaw Mr Webber would “assault” Mr Heappey “in a more than trivial way”, and regardless whether he foresaw the real risk of either a stabbing or a killing. Burke was acquitted of murder at trial but found guilty of manslaughter. In sentencing Mr Burke, the Judge found the Crown had not proven that Mr Burke knew of Mr Webber’s knife, and that the jury therefore relied on s 66(2) to convict him. Appealed conviction to the Court of Appeal and then the Supreme Court. What is consciously risked by party? In this case → the person had disrespected the gang, and had to be disciplined, what was agreed to was they would commit a hiding → At trial the judge said Mr Burke would be liable under s 66 (2) to carry out hiding → he saw assault on victim in more than trivial way that was dangerous → so unlawful act of assault → but without any consideration or awareness that death might result Burke did not know he had a knife on him → and stabbed victim 14 times then victim died → trial judge said that all that had to be known was a probable consequence of a hiding and more than trivial harm could occur.

Answer 6

For these reasons, we conclude that a secondary party is liable for manslaughter under s 66(2) if: (a) an unlawful act likely to do more than trivial harm to the deceased was known by that secondary party to be a probable consequence of the prosecution of the common purpose; and (b) that unlawful act was a substantial and operative cause of death. They said secondary was liable for manslaughter → and principle was liable for murder.

Answer 7

Matter went to the Supreme Court and the appeal was advanced on two bases: Known probable consequence had to be a stabbing or similarly grave assault - That the Judge should have directed the jury that a conviction under s66(2) was open only if the jury was satisfied that Mr Burke knew that a stabbing (or an act of its type) was a probable consequence of the prosecution of the common purpose. or Known probable consequence had to be a killing – The Judge should have directed the jury that a conviction under s66(2) was open only if the jury was satisfied that Mr Burke knew that an unlawful killing was a probable consequence of the prosecution of the common purpose. For him to be liable for manslaughter → known probable consequence of stabbing → which required him to have awareness of knife → or know that killing might occur. The dissenting judge glazebrook, and winkelmenn → said they would have accepted second ground of appeal → which required awareness that a homicide was a probable consequence of common unlawful purpose. As a result → the appeal was allowed → decision had to be made clear to jury that common unlawful purpose should have been set at serious harm → and what had to be foreseen was that serious harm might occur → and because of nature of harm that was caused that caused the death (stabbing) → he had to be aware of the weapon . Held that awareness to weapon was important →

Answer 8

Majority of the Supreme Court (O’Regan, Williams and Kos JJ) allowed the appeal on the first ground, that is that for Mr Burke to be convicted of manslaughter, he needed to have foreseen a stabbing or similarly grave assault. This meant that the jury should have been directed that they had to be satisfied: Mr Burke knew Mr Webber had the knife before they could address whether the stabbing was in the prosecution of the common purpose of giving Mr Heappey a hiding. Mr Burke knew the assault that actually occurred was a probable consequence of the prosecution of the common purpose of giving Mr Heappey a hiding. To reach that conclusion, the jury needed to be satisfied that Mr Burke knew Mr Webber had a weapon.

Answer 9

Majority of the Supreme Court (O’Regan, Williams and Kos JJ) allowed the appeal on the first ground, that is that for Mr Burke to be convicted of manslaughter, he needed to have foreseen a stabbing or similarly grave assault. This meant that the jury should have been directed that they had to be satisfied: Mr Burke knew Mr Webber had the knife before they could address whether the stabbing was in the prosecution of the common purpose of giving Mr Heappey a hiding. Mr Burke knew the assault that actually occurred was a probable consequence of the prosecution of the common purpose of giving Mr Heappey a hiding. To reach that conclusion, the jury needed to be satisfied that Mr Burke knew Mr Webber had a weapon.

Answer 10

The majority did not approve the appeal on the second ground. The majority affirmed the view at [172] that while it “is true that a killing is an element of the offence of manslaughter, … foresight of death is not required of the principal offender and should not be required of the secondary party either”. On that basis, if the principal offender’s conduct has caused death, death is a result of the conduct, but not an ingredient that has to be foreseen by the secondary party. Winkelmann CJ and Glazebrook J each dissented on the basis that the majority view did not accord with the wording of the statute or with principle.

Answer 11

R v Hartley [2007] NZCA 31, [2007] 3 NZLR 299, (2006) 23 CRNZ 420 To found a conviction for manslaughter it was necessary for the Crown to prove that the appellant was aiding and abetting, in terms of s66(1), offending of the type which actually occurred. In the absence of a knife, a conviction for manslaughter was not open.

Answer 12

On some facts a member of a group might appreciate, for example, that the intentional infliction of grievous bodily harm was what was proposed without necessarily knowing that members of the group were armed, but: “Sometimes, however, it will not be possible for a rational jury to infer the required knowledge in relation to a particular defendant unless sure that the defendant was aware that members of his party were armed.” Agreement by brothers to carry out serious assault → two of them had a hammer → people assaulted had bats, but overrun by brothers → the fact that there was a number of them → Court said that was relevant to establish the level of harm.

Answer 13

On some facts a member of a group might appreciate, for example, that the intentional infliction of grievous bodily harm was what was proposed without necessarily knowing that members of the group were armed, but: “Sometimes, however, it will not be possible for a rational jury to infer the required knowledge in relation to a particular defendant unless sure that the defendant was aware that members of his party were armed.” Agreement by brothers to carry out serious assault → two of them had a hammer → people assaulted had bats, but overrun by brothers → the fact that there was a number of them → Court said that was relevant to establish the level of harm.

Answer 14

“We do not overlook the fact that Vaihu was a case involving a charge of causing grievous bodily harm with intent to do so, not manslaughter. There is a significant difference between manslaughter, where intent to inflict grievous bodily harm is not required, and the grievous bodily harm offences faced by the Vaihu brothers. Intent to cause grievous bodily harm is an element of the latter offence, meaning an assault with such intent would need to be part of the common purpose or, if not, a secondary party under s 66(2) would need to know an assault with such intent was a probable consequence of prosecuting the common purpose of carrying out a lesser assault.”

Answer 15

At [47]: “The approach of New Zealand courts to common purpose liability must be firmly based on the wording of s66(2). That section recognises only one relevant level of risk, which is the probability of the offence in issue being committed. If the level of risk recognized by the secondary party is at that standard, it cannot matter that the actual level of risk was greater than recognized. It follows that there can be no stand-alone requirement that common purpose liability depends on the party’s knowledge that one or more members of his group were armed or, if so, with what weapons. As well, given the wording of s 66(2), there is no scope for a liability test which rests on concepts of fundamental difference associated with the level of danger recognized by the party.” Will not always be applied or determinative that the secondary party is aware of weapon → turns on the nature and context of the offence that was commtted and that secondary party needs to be aware of as a probable consequence. If numerous people → stronger likelihood that more serious level of harm could be probable consequence of common unlawful purpose. Depends on offence that is committed → the way which is is committed and what secondary party had awareness of → and what might happen in pursuit of it → not determinative but depends on context of case.