3. Parties

Question 1

What section is Parties?

Answer 1

Section 66(1) and (2)

Question 2

What are the ingredients for parties?

Answer 2

Subsection 1

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.

Subsection 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 of that offence was known to be a probable consequence of the prosecution of the common purpose.

Question 3

What does section 70 cover?

Answer 3

It covers the following:

(1) Every one who incites, counsels, or procures another
to be a party to an offence of which that other is
afterwards guilty is a party to that offence, although it
may be committed in a way different from that which
was incited, counselled, or suggested.

(2) Every one who incites, counsels, or procures
another to be a party to an offence is a party to
every offence which that other commits in
consequence of such inciting, counselling or
procuring and which the first-mentioned person
knew to be likely to be committed in consequence
thereof.

Question 4

What must your prove for the offence PARTIES?

Answer 4

• The IDENTITY of the defendant AND
• an OFFENCE has been successfully committed AND
• the elements of the OFFENCE (section 66(1)) have
  been satisfied.

Question 5

When must participation occur for PARTIES?

Answer 5

It must occur before or during the offence, not after because it falls into Accessory After the Fact.

Question 6

Explain the existence of intention during PARTIES?

Answer 6

Intention must exist to encourage or help the principal offender.

Question 7

What was found in R v Pene in relation to intention?

Answer 7

R v Pene

A party must intentionally help or encourage - it is insufficient if they were reckless as to whether the principal was assisted or encouraged.

Question 8

What is the difference between the principal and secondary party?

Answer 8

The difference is the principal is the person who actually commits the offence and other is secondary.

Question 9

Explain principal offender?

Answer 9

A person is liable under 66(1)(a) who actually commits the offence who will be guilty of meas rea and actus reus. There may be more than one principal offender.

Question 10

Explain secondary?

Answer 10

A person whose assistance, abetment, incitement, counselling or procurement is sufficient under section 66(1)(b) to (e).

Question 11

Multiple Offenders, what are the two methods that may consider offenders to be principal?

Answer 11

First Method - Each offender satisfies all elements of the offence committed. And each offender is guilty of the offence.

Second Method - Each offender separately satisfies part of actus reus but when combined it satisfies the actus reus.

The mens rea has to be satisfied for each offender.

Question 12

R v Renata what was found there?

Answer 12

It was held where the principal offender cannot be identified, it is sufficient to prove that each individual accused must have been either the principal or a party in one of the ways contemplated by 66(1)

Question 13

What is AIDS?

Answer 13

Means to assist in the commission of the offence either physically or by giving advice and information. In order to aid, the presence of the person offering the aid is not required at the scene, before or at the time of the offence being committed.

Question 14

Does a secondary have to be present at the scene of the offence?

Answer 14

It is not necessary for the secondary to be present before during or after the offence.

Question 15

Is there a requirement that the principal agree to the said assistance for a conviction to be recorded?

Answer 15

No, an agreement does not have to be made and it is not necessary that the awareness of assistance by the principal.

Question 16

In Police v Larkins, what was found?

Answer 16

It was found that although it is not necessary to have an awareness there was an assistance from a party, but there needs to be proof of the assistance.

Question 17

What are three examples of ASSISTANCE?

Answer 17

K - keeping lookout for someone committing a burglary

P - providing a screwdriver to a someone interfering with a vehicle

T - Telling an associate when a neighbor is away from their home so as to allow the opportunity to commit a burglary.

Question 18

Aiding by omission, explain this?

Answer 18

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 duty by exercising that control to prevent B committing an offence.

Question 19

Explain abets and give an example?

Answer 19

Abets means to INSTIGATE or ENCOURAGE; that is to urge another to commit the offence. As with aiding, the presence of the abettor at the scene of the offence at the time of its commission is not required.

R v Loper and R v Makita looked at offender’s culpability by way of PRESENCE and ENCOURAGEMENT.

Both found that mere presence by itself, which does not encourage, is insufficient. However deliberate presence at the scene INTENDED to signify approval of the acts of the principal will support an INFERENCE of encouragement in fact.

Question 20

Can passive acquiescence may be considered abetting?

Answer 20

Similar to aiding by omission, ABETTING or ENCOURAGEMENT may take the form of passive acquiescence where there is a duty to act.

Merely being presence and witnessing the offence while doing nothing to prevent it does not create liability on the part of that person UNLESS, in the circumstances, there was a special relationship between the principal and person OR where they owe a legal duty to the victim or to the general public.

Question 21

Explain Legal Duty and give an example by case law?

Answer 21

The special relationship is also dependant on the person who would be a secondary party having a legal duty to act and right or power of control over the principal offender.

Ashton v Police

An example of a secondary party owing a legal duty to a third party or general public is teaching another person to drive. That person is in New Zealand, under a legal duty to take reasonable precautions because under s 156 of the Crimes Act 1961 he is deemed to be in charge of a dangerous thing.

Another example of this would an Army Sergeant observes a subordinate assaults another person and does nothing to prevent it he would be liable as a secondary party because he has a power of control over the subordinate and a lawful duty to prevent such incidents and intervene.

Question 22

Explain Special Relationship?

Answer 22

Where there is a SPECIAL RELATIONSHIP and no intervention on the part of the person who would be a party, then this might amount to approval and encouragement of the principal’s actions.

Question 23

Give a case law that points out liability as a person in a special relationship that amounts offending?

Answer 23

R v Russell

It was held that the accused was morally bound to take active steps to save his children but his deliberate abstentions from so doing, and by giving the encouragement and authority of his presence and approval to his wife’s act he became an aider and abettor and thus a secondary offender.

Question 24

What is incites?

Answer 24

Means to:

R - Rouse 
S - stir up 
A - animate 
U - Urge 
S - Spur

Question 25

What is counsels?

Answer 25

Intentionally INSTIGATE the offence by advising a person on how best to commit an offence or planning the offence for another person. Couselling may also mean urging someone to offend meaning there is an overlap with INCITEMENT.

Question 26

In relation to a person who counsels, is it necessary for them to know the complete details of the offending? Give an example of this?

Answer 26

No it is not necessary they know the exact details, all they need to know there is an offence going to be committed. There is no need for them to be completely familiar with the details of the offence intended. In R v Baker, the accused was found guilty of being a party after authoring a letter to the principal about blowing up a safe.

Question 27

What is procure?

Answer 27

Procurement is SETTING out to see that something happens and taking the appropriate steps to ensure that it does. Procurement may be carried out by FRAUD, PERSUASION, WORDS or CONDUCT such as offer of payment. example - womans obtains a hit man to kill her husband and offers money or sexual services to him as payment.

Question 28

Party to secondary offence, what are the elements in subsection (2)

Answer 28

- Where 2 or more - FORM common intention - 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 if the commission of that offence was known to be a PROBABLE CONSEQUENCE of the prosecution of the common purpose.

Question 29

What was found in R v Betts and Ridley?

Answer 29

An offence where no violence is contemplated and the principal offender in carrying out the common aim uses violence. a secondary offender talking no physical part in it would not be held liable for the violence used.

Question 30

Is it a question of fact for the jury to decide on, 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?

Answer 30

Yes it is up to the Jury to decide upon that, in other words it is a question of fact for the Jury.

Question 31

What is probable consequence?

Answer 31

It is a subjective appreciation on the part of the offender where they must FORESEE the likelihood what their co-offender will commit another offence. This does not require them to think that the commission of the offence is more likely than NOT. It will be sufficient where it can be demonstrated that they knew there was a substantial or real risk or that the offence could well happen.

Question 32

What are the two qualifications to be satisfied under the general rule in relation to probable consequence?

Answer 32

1. There is no requirement for offender A to KNOW or FORESEE the precise manner in offence B is to be committed by OFFENDER B. OFFENDER A only needs to realize that it is probable. 2. There is no requirement that person A 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.

Question 33

Joint enterprise, what will have parties guilty of Murder? Or guilty of Manslaughter?

Answer 33

Murder - Intentionally helped or encouraged it OR - foresaw murder by a confederate, as a real risk in the situation that arose. xxxxxxxxxxxxxxxxxxx Manslaughter - knew that at some stage there was a real risk of killing short of murder, OR - foresaw a real risk murder, but the killing occurred in circumstances different from those contemplated OR - can be expected to have known there was an ever- present risk of killing.

Question 34

Innocent agents, explain this?

Answer 34

A person that is used who is innocent will not be liable if they were used without any knowledge of the act.

Question 35

Investigation procedures, how should the investigation be carried out against parties?

Answer 35

It should be conducted the same way as you would investigate principal offenders.

Question 36

What should be established when investigating involvements of parties?

Answer 36

1. a RECONSTRUCTION of the offence committed. This would indicate that more than one person was involved, or that the principal offender had received advice or assistance. 2. The principal offender acknowledging or admitting that others were involved in the offence. 3. A suspect or witness admitting to providing aid or assistance when interviewed. 4. A witness providing you with evidence of another person's involvement based on their observations. 5. Receiving information indicating that others were involved in the offence.

Question 37

Some general points around prosecutions: 1. Can a person be convicted of secondary party if the principal is not located? 2. Can a secondary person be convicted if the principal offender is not convicted due to infancy, insanity, or death? 3. Situation where two or more parties are accomplices of the other and as such, can they be convicted on uncorroborated evidence? 4. Can a person who commits an offence, which involves a designated class, for example a motor vehicle driver, is not convicted of the offence and acquitted, can a secondary party be convicted? 5. Can a person who is limitation by sex, age, or some other qualification or status and thus they are held to be incapable of actually committing the offence under section 66(1)(a), be convicted as a party? 6. Can a person who would have been a party to a completed offence, considered a party to an offence which is classed as an attempt where the substantive offence is unsuccessful? 7. Can a party to an offence, who is not the principal offender, be proceeded or convicted before or after the principal offender is convicted of the offence 8. Can an accomplice be convicted of a lesser charge than the one the the principal offender is convicted or? 9. What case law found a secondary party may escaped liability of a crime? 10. Does secondary party (66(1)(b)-(d) have liability for an aggravated robbery under section 235(b)?

Answer 37

1. Yes a person can be 2. Yes a person can still be convicted if the principal is not convicted due to infancy, insanity or death. 3. Yes they can be convicted, however it is not wise to do so. 4. No they cannot be convicted under these situations. 5. Yes they can be under the other sections of 66 for example a quadriplegic giving advice and information that enables the principal to offend. 6. Yes a person is considered a party in situations where an attempt to commit a crime is unsuccessful. 7. Yes they can be proceeded or convicted before the principal offender is dealt with. 8. Yes they can, in the case of R v Hartley it was ruled that in a gang shooting an accomplice be convicted of manslaughter and principal of murder. 9. In R v Pink it was found that a secondary party may escape liability through a timely and effective withdrawal before the commission or attempt of the offence. 10. No it doesn't because there is a collective element of being together with under section 235(b).

Question 38

How is the penalty applied in situations where the offence is not in fact committed but was incited, counselled, attempted to procure any person to commit any offence?

Answer 38

Under section 311(2) it outlines that if there is a situation as such, the person shall be treated the same penalty as attempted to committed an offence, unless in any such case it is expressly provided by this act or any other enactment.

Question 39

What should you do where charges arise under section 66(2), ie person is party to secondary offence OR it is unclear which subsection applies?

Answer 39

You would formulate the charge as for a principal offender.

Question 40

What was found in R v Betts and Ridley?

Answer 40

It was found 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.

Question 41

Who is it a question for in relation to the defendant knew that furthering their common aim in a certain way would probably result in another of the parties committing a particular offence is a question of fact?

Answer 41

It is up to the Jury to decide that.

Question 42

To what degree does a secondary party become liable to an offence committed by his principal?

Answer 42

Will only become liable if the party knows it is probable consequence, NOT knows it will likely to occur. Just needs to know there was a risk that it could happen from what was initially agreed on.