Criminal law Party Liability

Why do we have party liability?

To hold individuals equally accountable for collaborative efforts, group accountability.

Helping somebody with an offence, signing up to do something unlawful, taking responsibility for actions of friends…

If you agree to do something bad, and something much worse occurs as a result of agreeing to do something bad, that was predictable yet possibly unintended, you can be liable.

Principal offenders and secondary parties

Principal party: the person that commits the offence others may be liable for:

Secondary parties: people who aid, abet, procure, counsel or incite or be an accessory after the fact.

• convincing somebody to do an offence, aiding them in doing an offence, providing them the means/opportunity to offend, encourage etc.

• attempt to tamper with evidence, hide the offender etc = accessory.

Leading case: Ahsin facts

Facts: four defendants, two patched gang members. The two women were either in relationships/associated with gangs. They: shouted insults threats at rival members, Police found a weapon in the car. At a party, another altercation leads to one defendant threatening to stab somebody in the face whilst holding a large knife.

Somebody wearing rival colours was walking on street, woman driving pulled alongside the person. Person tried to get into the car, they got out of the car, jumped him. One woman said ‘that’s enough, let’s go’. Somebody got an axe, hit the victim over head and killed him.

The other people who weren’t the ax-hitters — the man who punched the victim, the woman who drove the car, and the woman who told them to stop — should they be liable?

Everybody was liable for murder in the end. This seems too strict. SC overturned it.

• getaway driver, lack of seeking medical care, driving off, intimidation purpose, potentially encouraging/assisting/facilitating assault.

Ahsin 66(1), 66(2) elements:

1. The offence to which defendant is alleged to be a Secondary party must be committed by a Principal party.

2. The Secondary party aided, abetted, counselled or procured the Principal party in the commission of the offence by words or conduct, or both.

3. The Secondary party intended to aid or encourage the Principal party to commit the particular offence.

4. The Secondary party knew both the physical and mental elements of the essential facts of the offence to be committed by the Principal party.

Secondary party liability vs accessory:

One who intends to and aids, abets, counsels or incites prior to or at the time the offence was committed is jointly liable.

An accessory after the fact is somebody who aids/abets/helps after the offence has been committed with the knowledge that it has been committed.

Turanga v R: using 1 getaway car to drive away, followed by getting out into another car encompasses the ‘time period’ or ‘continuous transaction’ in which the offence occurs.

• the getaway process was planned during the offence.

Element 1: Offence must be committed by a principal party: what does this mean?

Individual vs joint principal vs acting thru an innocent agent:

Individual principal is somebody that satisfies MR and AR elements together.

• Multiple individual principals if people commit the same offence (ppl jumping someone on the ground = GBH).

Joint principal: people who jointly satisfy elements of one offence: somebody pointing gun at attendant, other emptying till = aggravated assault + robbery = aggravated robbery for both of them. Common unlawful purpose…

• Ngamu v R: chequebook robbery: working in a chain of command, playing different roles to realise a common purpose of stealing and forging cheques.

Innocent agent: R v Paterson: hired somebody to ‘pick up his TV’, but instead robbed it by giving him the key. Contractor was not aware of it.

• the person who hired+instructed contractor would be a principal offender.

• can be liable for injuring a baby by knocking the mother down (mother is innocent agent as support)

Element 2: The secondary party aids, abets, counsels, incites or procures the principal party in the commission of the offence, by words or conduct. What do these terms mean?

Overlap between the terms. Each has definition in case law.

These must be provided at the same time or before the offence is committed. if not, then the accused is an accessory.

AR Element 2.1: aiding, abetting, helping/giving support.

AIDING: Must be the effect of giving assistance. Larkins says that this can be extremely minimal:

• The PP does not need to be aware of this assistance, someone acted as lookout for a bottle store robbery, offenders didn’t know he was there, he wasn’t even at the right bottle store, and the offence had been completed when he got there.

• The aid does not need to be causative of the commission of offence by PP.

ABETTING: encouragement by words or action. Mere presence is not enough. PP has to be aware of the abetting effort. causation is also not necessary.

Mere presence: cannot be criminalised for being there, but if presence may act as encouragement, with cheering and laughing, or mass presence for reinforcement inhibiting resistance, then can satisfy.

AR Element 2.2: inciting

Persuasion, coercing, inducement. This overlaps with abetting, but works as a ‘you should join in with us, or you should do this’ rather than a ‘come on, that’s a great idea’

• spurring, provoking.

• Burnard: man in police custody (in van) says that ‘you better let me go or our boys will fuck you up’ in earshot of his gang members etc…

AR Element 2.3: Counselling

Providing advice or information e.g. how to rob a store, build explosive, do something.

OR

instigating an offence by urging someone to commit it.

AR Element 2.4: Procuring:

To produce by endeavour: causal link between procurement and offence required.

• Need not be decisive, but influential.

• e.g. spiking somebody’s drink in order for them to drive drunk.

• getting somebody to submit false papers in order to gain a pecuniary advantage.

Can you aid/abet by omission?

If you have a duty to do something e.g. stop a child from being beaten by your other partner… you can be liable.

MR Element 3: conduct must be intended (to assist/encourage offending).

You need to intend that your assistance is for the offence, but you do not need a desire that the offence be committed.

• Pharmacist assisting coerced/vulnerable individual in enabling purchase of heroin ingredients as he knew she was under threat, and what she used it for.

Accidental/unintended assistance does not satisfy this element.

MR Element 4: accused must know of the ‘essential matters’ of the offending.

Intention and Knowledge is required, recklessness is not enough. Wilful blindness however may be enough if facts show that knowledge can be inferred.

• Knowledge that something illegal (without knowing specifics) will happen is also not enough.

• Drunk driver’s partner who did not know how much she had drank exactly was negligent in failing to inquire, but still did not possess knowledge of offence.

This is essential. must not have any doubt that the relevant facts are true.

What are essential matters?

• Cooper v MOT: drunk driving case: the actus reus or basic offence is an essential matter: e.g. shoplifting, not what is stolen.

• key factors e.g. knowledge of possessing a weapon in aggravated burglary.

Mens rea essential matters:

• you need to know that the offender commits the act with the relevant mens rea.

66(2): what is this offence actually for?

For when people join an enterprise (joint enterprise) or unlawful common purpose, and one of the members commits the offence agreed upon. All members of the enterprise are liable for offences committed through the purpose, provided they the offence was a probable result of the purpose.

e.g. two people agree to rob a house. one goes in, one stands outside as lookout. the owner is home, the entrant violently assaults the owner. if the lookout is aware that entrant is violent and that may occur, then liable.

by joining this purpose, you accept that you cannot control the actions of others if you thought that it may happen.

s66(2) elements:

The principal and secondary parties form a common intention to prosecute any unlawful purpose and to assist each other from therein.

The secondary party knows that the offence was a ‘probable consequence’ of the common purpose.

Ahsin elements for 66(2) + Burke distillation

1. The offence to which the defendant is accused to be a party is committed by a principal offender

2. there was a shared understanding or agreement to carry out something unlawful.

3. the persons accused as being parties to that agreement had all agreed to help each other in realising the common unlawful purpose.

4. the offence committed by the principal offender was committed in pursuit of the common purpose.

5. the defendant intended that the offence that eventuated be committed or knew that the offence was a probable consequence of carrying out the unlawful purpose

Burke: common unlawful purpose definition, whether the offence was committed in pursuit of the CUP, plus element 5 are the contentious ones.

66(2) Elements 1+2: Principal offender+common purpose.

Must be a principal offender that commits the offence:

For 66(2) to apply, there must be a agreement that forms a common intention between parties to implement the CUP. This MUST be a criminal offence. ITI is the case for this.

This can be affirmed by words and actions before and even after the offence, however, the purpose must arise before or at the time of the offending.

e.g. getting out the car together with the intention to beat somebody up. If somebody robs them as well, just because they’ve exceeded the common purpose doesn’t mean THEY can’t still be held liable. (maybe the others as they didn’t agree to that).

Who defines the common unlawful purpose (Edmonds)?

This is the prosecution’s job (if you’re acting for a defendant, then you would state how they may define it).

Young J in Edmonds states that the lower that the CUP is pitched, establishing party liability is easier, but establishing following/resulting offences becomes more difficult.

• CUP of assault=parties are easier.

• Serious violence as an ultimate offence is trickier to prove, for example, if the CUP criminality is low.

The CUP can be quite vague.

66(2) element 3: Must be an agreement between parties to join the CUP

Must be an agreement to help each other achieve the CUP. This doesn’t have to be verbal, can be a reciprocal intention.

66(2) element 4: the offence must be committed in the course of pursuing the common purpose

Hubbard: where the CUP stops and starts, and what is included.

• PP and SP collaborated for the CUP of burglary. PP had an arsonist habit, parties agreed that no arson would take place. At the time of arson, CUP of burglary had already been completed.

• However, any acts to destroy evidence or facilitate escape/flight would form part of the CUP.

Te Moni: anything related to an offence:

• Anything ordinarily contemplated as inherent or apt to occur, plan for complications for robbery e.g. bystander resistance, hostage situations etc. Anything in the ambit of robbery.

• Supplying with a weapon opens up possibility of aggravated robbery, GBH etc.

(if an offence was not committed in the common purpose, then hard to conceptualise).

66(2) Element 5: intends for the offence to be committed, or knew that the offence was a probable consequence whilst pursuing the CUP. Weapon?

Standard of intention/knowledge: this is a subjective test as the offender must ‘know’ that to be smth that could well occur.

• Bank robbery e.g. if somebody knows that upon joining common purpose could be shot with gun or mentality of robbery, this satisfies test.

Does not need to know ‘everything’ or exact type of offence, but a general possibility.

If a weapon is used (or different type of weapon) unbeknownst to the SP, then this may form an ‘essential element’ for specific offences.

• If the weapon unbeknownst to the offender significantly elevates the offence beyond the CUP, then likely not to hold knowledge.

Depends on the facts of the case (edmonds baking flour). ‘essential elements’ of offence.

Element 5: what does ‘probable’ mean?

Gush: an event that ‘could well happen’, does not require a balance of probabilities.

• real or substantial risk, approved in SC.

• essential elements of offence also matters.

Withdrawal: main defence to 66(1) and (2): Ahsin elements

Factual inquiry and a matter for the jury…

You need to withdraw by undoing your participation before the offence is committed.

There must be conduct, through words or actions, that demonstrate clearly to the others withdrawal from the offending.

Withdrawing party must take reasonable steps to undo the effect of their participation before the crime is committed.

• this takes into account the timing, the proportionality of steps taken to amend/prevent offending (e.g. getting help, discouraging, sufficient clarity in discouragement, warning the victim, contacting police).

Assistance cannot be undone if already occurred e.g. driving somebody in Ahsin.