Party Liability S 66 (2) Flashcards
Party liability under s66(1):
Section 66 (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.
Party liability under s66(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.
Very different to (1) → anyone who joins joint enterprise (forms with other to do unlawful act) → not only liable for that unlawful act → but also any other act → committed by principal party → and any other member of the group → provided the additional offence committed was done in the prosecution of the common purpose
Common purpose → carry out of or the implementation of
And secondary party knew that such an additional offence was a probable consequence of the common unlawful purpose.
Does not matter if secondary party → after having joined the common purpose → did not have intention ot help or encourage → or intend for offence to be committed
Or did nothing to help or encourage the principal party to carry out the offence
Section 66(2):
Alan and Joe form a plan to do a burglary. They think the house is empty but the property owner confronts Joe in the course of the burglary and Joe violently assaults him. Alan does nothing.
If Alan knew Joe was violent and that this could well happen, he would be liable under s 66(2) for aggravated burglary and the assault.
Joint enterprise → commit burglary.
Owner finds Joe in commission of offence → smashes owner of property in head → fractured skull and serious injury
Allan and Joe are both liable for agg rob → and injury to the home owner → even though Alan had nothing to do with the assault or intended for that to happen → if can be proven that a probable consequence of carrying out burglary that violence will be used.
Section 66(2) broken down:
- Principal and the Secondary party form a “common intention to prosecute any unlawful purpose and to assist each other therein”.
- If the principal commits and offence(s) “in the prosecution of the common purpose” the Secondary Party is liable for the offence(s)
- If the secondary party knows that the offence(s) committed by the principal was “a probable consequence of the prosecution of the common purpose.”
Rationale for secondary liability under s66(2):
Andrew Simester says:
“By forming a joint enterprise, D signs up to its goal. In doing so, she accepts responsibility for the wrongs perpetuated in realizing that goal, even though they be done by someone else.
Her joining with P in a common purpose means that she is no longer fully in command of how the purpose is achieved. Given that P is an autonomous agent, D cannot control the precise manner in which P acts. Yet her commitment to the common purpose implies an acceptance of the choices and actions that are taken by P in the course of realizing that purpose.”
By signing up to do something unlawful → everything that happens in consequence is something you are liable for → when sign up for common purpose you are no longer in control
Principal → autonomous agent
Secondary → cannot control what they do
But by signing up to joint enterprise → you impliedly accept choices and actions → in the course of bringing about that purpose
Ahsin → did nothing but drive the car and yell things out the window and pull the victim out → charged with murder due to the common purpose of carrying out violence against other gang members.
Party liability under s66(2)- every offence?:
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.
Does liability under s 66(2) require 2 offences?:
S66(2) used to cover offences not intended but foreseen as a probable consequence of the prosecution of the common unlawful purpose
Bouavong v R [2013] NZCA 484 where the court said there must be two separate offences to apply s 66(2).
But, Ahsin – changed that.
Previously read as additional cases only → then (2) was applied.
Everyone that has intention to actually assist, intend to encourage, abet, → and have knowledge of what the principal party intends on doing → (1) → but Wong said
There must be two separate offences for 66 (2) to apply → and said that (2) only applied to the additional residual offences after (1)
But Ahsin said no → they said 66 (2) applies not only the additional offence and also common purpose →
The requirements for (2) to apply → require something much less than 66 (1).
Ahsin → Court conceded that there may be awkwardness in language → but said that Palriament cant have intended anything other than the common purpose
Majority of the SC in Ahsin v R [2014] NZSC 153, [2015] 1 NZLR 493:
Section 66(2) can also apply where the offence which occurs is the intended offence, such as the one that was the very object of the common purpose.
Julia Tolmie: awkward wording if applied to one offence:
If it was intended that s66(2) applied to one offence only, you would expect it to read something like:
“Where two or more persons for a common intention to prosecute any unlawful purpose [an assault], and to assist each other therein, then if any one of the parties to the common agreement commits that offence [assault] each of them is guilty of that offence [assault].
Instead: applying s66(2) to this example we get:
“Where two or more persons form a common intention to prosecute an assault, and to assist each other therein, each of them is a party to every assault committed by any one of them in the prosecution of the common purpose of assault if the commission of the assault was known to be a probable consequence of the prosecution of the common purpose of assault”
Elements for s66(2) - Ahsin at [102]:
To establish party liability under s66(2), the Crown must prove BRD that:
The offence to which the defendant is alleged to be a party was committed by a principal offender;
There was a shared understanding or agreement to carry out something that was unlawful;
The person(s) accused of being parties to that agreement had all agreed to help each other and participate to achieve their common unlawful goal;
The offence was committed by the Principal in the course of pursuing the common purpose; and
The defendant intended that the offence that eventuated be committed, or knew that the offence was a probable consequence of carrying out the common purpose. This requires foresight of both the physical and mental elements of the essential facts of the offence.
Court in Ahsin set out elements for s 66(2):
As is the case for 66 (1) → must have principal carrying out the actual offence
Have to have shared understanding of carrying out something unlawful.
And persons accused being parties agree to help each other and participate to achieve common goal
Offence was committed.
Key Elements for s66(2) – Burke at [48]:
Definition of the common purpose- What was the shared understanding or agreement to carry out something that was unlawful;
Determining whether the actions/omission of the Principal party fell within the prosecution of the common unlawful purpose- that is, in the course of pursuing the common unlawful purpose; and
Determining whether the offence committed was a known probable consequence of carrying out the common purpose.
66 (2) in context of manslaughter in Burke → argued in SC →
Clear that three elements → are the way in which the common purpose is framed → or what was the shared agreement to carry out something unlawful.
Actions fell within the prosecution of the unlawful purpose
Offence committed was a known probable consequence of carrying out common purpose.
So the real test is these three elements
Differences between s66(1) vs s66(2):
Under s 66(1) must:
(1) assist in fact and/or encourage the Principal in the commission of the offence the offence and
(2) you must intend to assist or encourage and have knowledge of the essential elements of the offence which is committed;
Under s 66(2) need not provide any assistance or encouragement and recklessness will suffice- that is you only need to think that the offence which is committed is a real risk or something that might well happen.
66 (1) → have to assist in fact → encourage in a way material to the offender → must intend to assist or encourage, and have knowledge.
66 (2) → probable foresight of the probable consequence → dont have to assist materially in the commission of the offending → have to just sign up for the common unlawful purpose → as long as you agree to common purpose and come along.
The looser requirements for s 66(2) liability:
The common purpose doctrine is a common law doctrine in the UK which was abolished by the SC in R v Jogee [2016] UKSC 8
In UK this law is still covered in common law → Common unlawful purpose
Jogee → eliminated common purpose from common law → as mere association could hold individuals criminally liable →
In NZ we have s66 (2) → codified → look at common unlawful purpose liability based on s66 (2) irrespective of what happens overseas → and any substantive change would require repeal of s 66 (2).
- Offence must have been committed by a Principal Party:
Secondary party liability is derivative- there must have been a Principal offender who committed the offence which the other parties are said to be secondary parties to.
Individual Principals - a number of principals in respect of the same crime
Joint principals in respect of one crime
Offence had to be committed by principal party → can have joint principals → part of actus reus which carries out entire actus reus. → both have requisite mens rea.
MUST always establish that there is a principal.
- There must be a Common Unlawful Purpose- a shared understanding or agreement to carry out something that was unlawful:
Prosecution must prove an “agreement” between two or more people to commit a criminal offence. R v Curtis [1988] 1 NZLR 734 CA).
Evidence of a common intention can be inferred from words or actions prior to and during the offending and even after the offending
The common unlawful purpose need not be constant and it may arise at the very commission of the offence
Defining what a common unlawful purpose is?
Nature of shared understanding or agreement to carry out something unlawful → for prosecution to prove the common unlawful purpose → and it must be between two or more people → and must include principal
Can be inferred by words or actions
Can be established afer the offence is carried out → common purpose.
For example → intercept telephone calls → after the offence → and use that as the basis of common unlawful purpose agreed upon by parties.
Does not need to be constant → if someone does something outside
Lots of scope for evidence to establish common unlawful purpose → dont have to have written agreement → All running outside to attack person can be read to be common unlawful purpose.
Ahsin → driving around and threatening people → was seen as common unlawful purpose to threaten violence, carry out violence → and that met the common unlawful purpose threshold.
Withdrawals → hard to prove that you have withdrawn from common unlawful purpose.
Can easily be caught by s 66 (2).
- Common Unlawful Purpose- cont’d:
It is immaterial that the Principal offender cannot be linked with the Secondary party –
R v Ma’u [2008] NZCA 117
There is no requirement that the Secondary Party actually participated in the offence which was the object of the common purpose –
R v Fa’apusa CA 300/06 13 Dec 2006
Don’t have to show connection between parties → or even participated in the offence (secondary).
Can be more than one unlawful purpose → does not affect liability of party as long as they have signed up for one or another of those → and it is relevant only to the particular common purpose they signed up for (liable)
Who defines the Common Purpose? Edmonds v R [2011] NZSC 159, , [2012] 2 NZLR 445 at [49]:
It is up to the Prosecutor to define the common purpose.
If the offences involve group violence, the prosecutor must decide where to pitch the alleged common purpose in terms of criminality.
If the common purpose is pitched at a high level of criminality, close to the level of violence actually committed, such as an intention to inflict serious violence, the more difficult it may be to establish that particular defendants formed the intention to prosecute that common purpose, but the easier it will be to infer that such defendants (that is, those who did form that intention) knew that the ultimate offence was a probable consequence of its implementation…”
If the prosecutor pitches the common purpose at a lower level of criminality, for instance to assault the deceased and the other members of his group, the easier it will be to establish the common unlawful purpose, but it may then be harder to show that the ultimate offence that was committed, was recognised to be a probable consequence of the implementation of the common unlawful purpose.
Up to prosecutor to find common purpose → Edmonds → then judge instructs to jury based on way prosecution constructs common purpose
The level which prosecution sets common unlawful purpose is extremely important → if set common unlawful purpose at high level of criminality → parties agree to carry out serious violence → then anything that happens in the implementation → death for example → will be easier to show that it was a probable consequence of the common unlawful consequence
The more serious the easier it is to prove a probable consequence. → or link.
If set criminality of common unlawful purpose at a low level → it will be easier to prove → but harder to show that additional offences can be implementational → or are known to be a probable consequence of the conduct carried out → for example assault → and then something more serious is done to the victim → the gap is greater → and becomes harder to show that it was a probable consequence of assault → because it is more unreasonable/ unexpected for that to occur.
The majority of the Supreme Court in Burke v R said at [56]:
“… it is important that there is clarity about the nature of the common purpose alleged by the Crown and the offence said by the Crown to be a known probable consequence of the implementation of that common purpose.”
Picked up by SC in Burke → nature of the common purpose alleged by the crown → has to be clarity.
The way which common law purpose is explained is extremely important → as the level of harm is extremely important to seeing if there is a probable consequence.
General & vague statements of unlawful purpose:
Edmonds V R [2011] NZSC 159, [2012] 2 NZLR 445
The common purpose alleged by the Crown was to “pursue the group of scaffolders and to cause serious violence to somebody in the group of scaffolders and to assist each other with that purpose”
The common unlawful purpose was pitched at quite a high level of violence (cause serious violence) and very specific in time - from when the pursuit started.
Held: the common purpose meant that any interpersonal violent offending fell within the common purpose- including death.
Eg. Waho: “to deal out retribution” or “to deliver violence in retaliation for the assault.”
Edmonds → decided to pursue group of scaffolders → and assist each other to that purpose → key thing was to pursue the group and cause serious violence
So common unlawful purpose → was serious violence
Harm offences → can be hard to decipher harm agreed to and the harm that might be caused pursuant to it → high level → where more serious harm occurs → that will be easier for prosecution to show that there was a probable consequence that death might occur.
Probable → the meaning of which is identified in case law.
- The person(s) accused of being parties to that agreement had
all agreed to help each other and participate to achieve their common unlawful goal:
There must be an agreement to help each other in the pursuance of the common purpose.
Reciprocation is enough
Requirement that people will help each other → usually uncontentious.
Enough that everyone gets out car to chase someone etc. → im going to help you is not required → usually inferred very easily.
SC → not very sticky or difficult to prove
- The offence was committed by the Principal in the course of pursuing the common purpose:
Offence must be committed in pursuance of the common purpose.
R v Hubbard (1990) 6 CRNZ (HC).
R v Te Moni [1998] 1 NZLR 641, (1997) 15 CRNZ 439 (CA).
Elements 4 and 5 effectively conflated by the Courts- Burke at [33].
In course of carrying out common purpose → the offence must have happened → if it was an additional offence separate → have to show that it was in pursuance of the common purpose.
If not → for example commits burglary goes into house → then commits sexual offence that is not pursuant to the commission of burglary → as additional assault has nothing to do with the commission of the common purpose.
Courts have shown variance → R v Hubbard → agreement to carry out a burglary → and the unlawful purpose was to break into business premises → one of the parties left building → then another set fire to building → the party who had left was also charged as secondary party to Arson → as this was common unlawful purpose of burglary.
Well known by secondary party → that the primary liked to set fire to things → If setting fire to things to not be detected → would be common purpose.
But because he left → he was not apart of this → and found not guilty of Arson → and told him not to do it.
R v Te Moni → agreement to carry out bank robbery → four of them agreed to do it → one recently got out of prison → had mental health issues → and he was supplied with loaded sawn off in car by one of other parties → and things went wrong.
The car would not start → so by the time he got to the bank the customers were in the bank by the time car would start → bank manager was on break → so the access to certain areas were not possible → nobody else had keys.
And one of the tellers was on the phone and could call the police.
Had in his pocket a suicide note and note to his ex gf → and in the course of the robbery → the evidence was when he tried to hand over money → he wasnt interested in carrying through the robbery → he took hostages in bank
One of tellers went for gun and the gun went off and one of tellers was killed.
Was the killing of the tellers in common purpose of carrying out robbery or was it additional → Argued that signed up for common unlawful purpose of robbery → and killing had not been related to robbery.
As Te Moni had his own agenda → was taking hostages, was trying to get his gf there → off on his own tangent which had nothing to do with common unlawful purpose → but Court did not agree.
Said prosecution of common unlawful purpose includes any resistance encountered, from bystanders or police → and said the principal may be pursued —> that pursuit may involve other people → may it be police or members of the public → or anyone else that may have got in his way.
Common unlawful purpose was being carried out even with the accumulation of hostages and the homicide.
Te moni pursuing own plan → Did not interrupt the common unlawful purpose of carrying out the robbery → and was possible to be simultaneously pursued at the same time of the robbery.
So the secondary parties were liable for homicide.
Contrasting case compared to Hubbard.
What has happened more recently is conflated element 4 → being commission of unlawful purpose with probable consequence of unlawful purpose.
Collapsed those two requirements even though they should be dealt with seperately
Burke stated this → close connection between element 4 and probable consequence → that if the offence was not committed in prosecution of common purpose → would not be a consequence of common purpose.
If Crown prosecution can show any additional offence pursued pursuant to common unlawful purpose provided the level of harm → can easily prove it was a probable consequence.
- The defendant: (1) intended that the offence that
eventuated be committed or (2) knew that the offence was a probable consequence of the prosecution of the common purpose:
(1)Foresight requires “foresight of both the physical and mental elements of the offence (Ahsin at [102(e)].
(2)“In the prosecution of the common purpose?
(3)Knowledge of Probable Consequence”?
uSubjective test- Bouavong v R [2013] NZCA 484
uStandard is recklessness
When looking at mens rea element → you have intention → And requirement that party knew it was a probable consequence.
Fifth element → requires foresight of physical and mental elements of the offence → but in this case not knowledge → but recklessness that those elements exist.
Discussion as to what is meant by the prosecution of the common purpose →
SC in Burke said → what was meant by prosecution of common purpose → was in the course of implementing → much wider.
Some discussion that it may have been an objective test → but rejected in 1961 → in CA → clearly made it a purely subjective test → and that was confirmed by Bouvang → subjective standard of risk.
Conscious appreciation of risk → that offence may happen as a probable consequence .
Probable meaning?
Foresight of a probable consequence:
R v Gush [1980] 2 NZLR 92 (CA) at 94, - An event that “could well happen” rather than one that was more probable than not.
R v Piri [1987] 1 NZLR 66 (CA) – Cooke P at 79 said – the degree of foresight required to be proved may be referred to as “a real or substantial risk, … [or] something that “might well happen.”
Definitions approved in Ahsin and Burke by the Supreme Court.
In Burke the Supreme Court also said at [88] that “probable” is to be contrasted with “possible”
R v Gush → event that could well happen → said it was not more probable than not. → not how it should be interpreted
R v Piri → Cooke said → proven to be a real or substantial risk → or something that might well happen →
Ahsin refused to revitalise this → said there is no confusion →
Court asked in Burke → said no it is already clear.
They did consider it may be useful to say that probable could be contrasted as possible to assist the jury to find the appropriate level of probability.
Dissent in Burke → were prepared to revisit this → Winkelmann advocated to revisiting the test → too far removed from stat test → said likely was a better synonym that probable → and if jury seeked further guidance → she agreed with majority that it would be helpful that probable should be contrasted with merely possible.
Probable does not mean likely → it means could well happen, might well happen, real or substantial risk → these are the words you need to use.
Secondary party does not need to know precise details of the offence or it’s mode of commission- sufficient that they knew the type of offence committed was a real risk
R v Witika [1993] 2 NZLR 424 at 43, (1992) 9 CRNZ 272 (CA) at 279
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.