Party Liability S 66 (2)

Question 1

Party liability under s66(1):

Answer 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.

Question 2

Party liability under s66(2):

Answer 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

Question 3

Section 66(2):

Answer 3

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.

Question 4

Section 66(2) broken down:

Answer 4

• 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.”

Question 5

Rationale for secondary liability under s66(2):

Answer 5

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.

Question 6

Party liability under s66(2)- every offence?:

Answer 6

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.

Question 7

Does liability under s 66(2) require 2 offences?:

Answer 7

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

Question 8

Majority of the SC in Ahsin v R [2014] NZSC 153, [2015] 1 NZLR 493:

Answer 8

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.

Question 9

Julia Tolmie: awkward wording if applied to one offence:

Answer 9

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”

Question 10

Elements for s66(2) - Ahsin at [102]:

Answer 10

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.

Question 11

Key Elements for s66(2) – Burke at [48]:

Answer 11

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

Question 12

Differences between s66(1) vs s66(2):

Answer 12

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.

Question 13

The looser requirements for s 66(2) liability:

Answer 13

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).

Question 14

1. Offence must have been committed by a Principal Party:

Answer 14

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.

Question 15

2. There must be a Common Unlawful Purpose- a shared understanding or agreement to carry out something that was unlawful:

Answer 15

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).

Question 16

2. Common Unlawful Purpose- cont’d:

Answer 16

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)

Question 17

Who defines the Common Purpose? Edmonds v R [2011] NZSC 159, , [2012] 2 NZLR 445 at [49]:

Answer 17

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.

Question 18

The majority of the Supreme Court in Burke v R said at [56]:

Answer 18

“… 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.

Question 19

General & vague statements of unlawful purpose:

Answer 19

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.

Question 20

3. 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:

Answer 20

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

Question 21

4. The offence was committed by the Principal in the course of pursuing the common purpose:

Answer 21

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.

Question 22

5. 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:

Answer 22

(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?

Question 23

Foresight of a probable consequence:

Answer 23

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

Question 24

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

Answer 24

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.

Question 25

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

Answer 25

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.

Question 26

What if the Principal Party kills the victim in pursuance of the Common Purpose?:

Answer 26

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).

Question 27

What if the Principal Party kills the victim in pursuance of the Common Purpose?:

Answer 27

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.

Question 28

Is foresight of death required for murder?:

Answer 28

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.”

Question 29

R v Burke [2024] NZSC 37, 1 NZLR 1:

Answer 29

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.

Question 30

Manslaughter- R v Burke [2022] NZCA 279 at [66]:

Answer 30

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.

Question 31

R v Burke [2024] NZSC 37, 1 NZLR 1:

Answer 31

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 →

Question 32

R v Burke [2024] NZSC 37, 1 NZLR 1 at [45]:

Answer 32

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.

Question 33

R v Burke [2024] NZSC 37, 1 NZLR 1 at [45]:

Answer 33

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.

Question 34

R v Burke [2024] NZSC 37, 1 NZLR 1:

Answer 34

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.

Question 35

Awareness of a Presence of a weapon?:

Answer 35

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.

Question 36

R v Vaihu [2009] NZCA 111:

Answer 36

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.

Question 37

R v Vaihu [2009] NZCA 111:

Answer 37

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.

Question 38

R v Vaihu- commented on by Supreme Court in Burke at [123]:

Answer 38

“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.”

Question 39

R v Edmonds [2011] NZSC 87,
[2012] 2 NZLR 445- current position in NZ:

Answer 39

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.