Short Answer Parties Flashcards
What you need to prove for parties to
· The identity of the defendant, and
· an offence has been successfully committed; and
· the elements of the offence (s66(1)) have been satisfied.
When must participation have occurred for someone to be a party to an offence?
To be considered a party to the offence, participation must have occurred before or during (contemporaneous with) the commission of the offence and before the completion of the offence. Someone who provides assistance to either the principal or secondary offender following the commission of an offence becomes an accessory after the fact. They have not actively participated in the offence committed and their liability is not for the original offence committed, but instead comes about as an offence under s71 and s312 of the Crimes Act 1961. (Accessory
after the fact is discussed within this module).
What is a principal party?
A person will be a principal offender, and liable under s66(1)(a), where he or she personally satisfies the actus reus and mens rea requirements of the offence. (There may be more than one principal offender in relation to the offence committed.)
What is a secondary party?
Secondary parties are those people whose assistance, abetment, incitement, counselling or procurement is sufficient under s66(1)(b),(c) or (d) of the Crimes Act 1961 to make them also liable due to their participation in the offence committed by the principal(s). This is despite the fact that the secondary party does not themselves commit that offence.
Discussion around secondary parties/offenders
Those who assist the principal offender(s) either before or during the commission of an offence are considered secondary offenders and thus their liability generally lies within the scope of s66(1)(b), (c) or (d).
To be a party to an offence, the acts of the secondary offender must be earlier in time or contemporaneous with the acts of the principal offender(s).
Whether the acts are contemporaneous is dependant on the circumstances of each case.
Where the act was part of the original planning, eg providing a means of escape, then the person who committed this act would be deemed to be a principal party.
However, a person cannot be convicted as a party for an offence that is already complete. In such a case they would be liable as an accessory.
Examples of secondary providing principal with assistance
Examples of assistance
· Keeping lookout for someone committing a burglary.
· Providing a screwdriver to someone interfering with a motor vehicle.
· Telling an associate when a neighbour is away from their home so as to allow the opportunity to commit a burglary.
Aiding by omission
Note that it is possible to aid or abet by omission. Liability for aiding by omission will arise where A, who has a legal duty to act and a right or power of control over B, fails to observe or discharge the duty by exercising that control to prevent B committing an offence.
Discussion around common intention 66(2)
In situations where two or more offenders form a common intention (an
agreement) and embark on a joint enterprise (commit an offence) together, for
example a robbery (offence A), all who entered into the agreement can be
charged as parties to that offence (offence A).
They can also be charged as parties to any other offence (offence B) that any
one of them commits in order to assist in the commission of the offence
originally agreed to (offence A), provided that the other offence (offence B) is
known to be a probable consequence of the prosecution of their common
purpose (offence A).
This extends to include any unusual consequences that arise from pursuing the
jointly intended offence (offence A). However, where one of the offenders
goes beyond what was agreed then the other(s) is not liable for the
consequences of the unauthorised act (offence B).
Who decides parties knowledge? 66(2)
Whether a defendant knew that furthering their common aim in a particular way would probably result in another of the parties committing a particular
offence is a question of fact, on which the jury must decide.
There are two qualifications to be satisfied under the general rule in relation to probable consequence:
Qualification 1
There is no requirement that person A knows or foresees the precise manner in which offence B is to be committed by person B. Person A need only realise that an offence of that type is probable.
Qualification 2
There is no requirement that person A’s foresight of offence B include any appreciation of the consequences of the physical elements of the offence
committed (offence B), but for which no mens rea element is required
Joint enterprise for murder or manslaughter. When can someone be charged as a party
A person charged as a party to murder will be guilty of:
Murder, where they:
· intentionally helped or encouraged it, or
· foresaw murder by a confederate, as a real risk in the situation that arose.
Manslaughter, where they:
· knew that at some stage there was a real risk of killing short of murder, or
· foresaw a real risk of murder, but the killing occurred in circumstances
different from those contemplated, or
· can be expected to have known there was an ever-present real risk of
killing.
