PARTY TO SECONDARY OFFENCE Flashcards
Liability: Party to a Secondary Offence
CA61 s66(2)
Where 2 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 that offence was known to be a probable consequence of the prosecution of the common purpose.
What is the case law for s66(2)?
Betts and Ridley
An offence where no violence is contemplated and the principal offender in carrying out the common aim uses violence, a secondary offender taking no physical part in it would not be held liable for the violence used.
Probable Consequence: what is required of the SECONDARY offender to be charged with a SECONDARY offence?
(1) That the saw the secondary offence as a PROBALE outcome.
(2) They need not apprehend the consequences of the Secondary offence
What criteria would a SECONDARY be guilty of MURDER:
Where they:
(1) Intentionally helped or encouraged it, or
(2) FORESAW murder by a confederate, as a REAL RISK in the situation that arose.
What criteria would a SECONDARY be guilty of MANSLAUGHTER:
Where they:
(1) Knew that at some stage there was a REAL RISK of killing (short of murder), or
(2) FORESAW a real risk of murder, BUT the killing occurred in circumstances different from those contemplated, or
(3) Can be EXPECTED to have KNOWN there was was an EVER-PRESENT real risk of KILLING.
Innocent Agent:
When an offender uses an innocent agent to carry out the act, who is the PRINCIPAL offender and who is the SECONDARY offender?
The innocent agent is not guilty. The person using the innocent agent is the PRINCIPAL offender. The acts carried out by the innocent agent are deemed to be the actions of the PRINCIPAL. (There is no SECONDARY offender).
When two or more offenders are accomplices to each other, can they be convicted on uncorroborated evidence of the other party?
Yes, but it would be unwise to do so.
If a principal offender (eg of a certain class of vehicle) is acquitted, can the secondary still be charged?
No.
Can someone still be convicted as a party to an ATTEMPTED offence that they would otherwise have been convicted of if the SUBSTANTIVE offence was successfully carried out?
Yes
Does the PARTY need to be convicted TOGETHER WITH the principal, or can they be convicted BEFORE or AFTER the principal?
They can be convicted before or after. It’s not mandatory that they be convicted together with.
Can a person be convicted as a PARTY to Agg Robbery who is one of the offenders present?
No. The offence of Agg Robbery displaces s66(1)(a)-(d) because the “party” is a principal in the offending.
Must the same CHARGE WORDING be used for the PARTY as the PRINCIPAL?
Yes
What are the 5 Actus reus that the PARTY can commit? And can there be more than one?
They can commit one or more of the following:
(1) Aid
(2) Abet
(3) Incite
(4) counsel
(5) Procure
Must the prosecutor advise the court that the defendant is being charged as a PARTY to the offence?
Yes, if s66 has not already been referred to in the filing.
In s311(2), is the defendant who procures someone to commit an offence liable to the same punishment as the PRINCIPAL? (If not, why not?)
Yes. Unless a different punishment is written into the enactment.
