Modes of Participation

PARTICIPATION

There are two ways of being liable for an offence. First, the person who actually commits the offence is liable as a principal. Secondly, those who assist the principal in some way or join with the principal with the purpose of committing an offence may be liable as secondary parties.

s.167 CA1961 states MR for murder will be satisfied if the offender:
*Aramakutu

a) intends to cause death

b) intends to cause bodily injury know likely to cause death and is reckless whether or not death ensues
*Warren

c) Intends to cause death, or by being reckless intends to cause bodily injury and by accident or mistake kills another person (transferred malice)

d) For any unlawful object does an act the offender knows to be likely to cause death.
*Mckeown

66. Parties to offences
(1) Every one 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.

The principal is the individual that actually commits the offence.

There may be more than one principal in respect of any given offence provided each offender contributes in some way to the AR.

(nurse participated in beating of patient)

Richardson J said:
It was not that she herself caused actual injury to Matthews by those acts, but that in concert with the other assailants she participated in the attack on Matthews. As to that the Judge directed the jury that several people can commit a crime together and each be principal offenders.

Woman gave husband sedative & present when her son killed him by hitting him. The court was prepared to convict her as a principal to the murder since she aided the killer but the court held her to be a principal in these circumstances. s66(2) refers to common purpose or the joint enterprise doctrine.Not sure if when can go that far in NZ.

Sometimes the AR is not perpetuated personally by the D, but is instead brought about by another who is unaware of the significance of his actions. The innocent agent is not regarded as a participant in the crime, and the law treats the D as the principal.

Court held the words, "actually commits the offence" were able to cover the situation where the person uses another innocent person as a instrument to perform the act of burglary.

i) Crimes that require that the P belong to a particular class of individuals.
ii) Crimes that specify that the P must perform a criminal behaviour rather than cause a criminal consequence.

Case relates to Part ii - A bus conductor told a bus driver it was okay to reverse when it wasn’t and pedestrian was killed.
Held: The conductor couldn’t be held liable for the crime of unreliable driving because he wasn’t driving and crime specifies a particular form of behavior. The perpetrator has to perform the conduct of the offence.

(C raped L's wife upon L's suggestion) Court suggested that L could be convicted as the principal in the crime of rape because he had acted through C in raping his wife.

Courts suggests you could rape someone through the agency of someone else.

s.66(1)
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.

ACTUS REUS of Secondary Parties

s66(1)(b) - does or omits an act for the purpose of aiding any person to commit the offence;

- Assistance must be actual

- Eichelbaum J said aiding means assisting, helping or giving support

- But the level of assistance may be minimal

- Driver may be to remote in proximity to help

- In this case, they were present in

- In this case, he held they were present in a “constructive sense” and provided aid by being near enough to afford it.

- The principal does not need to be aware of the assistance, provided some actual assistance was given.

D prevented a 3rd party from warning the V of the danger thereby making it possible for the principal to kill the victim but the principal never became aware prior to the killing.

- Secondary party without the principal's knowledge decided to intervene on their behalf and keep a lookout while robbed bottle store.

- Eichelbaum J appellant provided "an extra pair of eyes" was evidence of actual assistance regardless whether those offenders were aware of its availability.

To abet means to incited by aid, to instigate, or to encourage and overlaps with other forms of participation in s66(1).

- Is used in the sense of encouragement of the crime.

- Mere presence is not enough
- Hawkins J held 'active steps must be taken, by word, or action, with the intent to instigate the principal or principals'

A couple of soldiers watched a rape taking place in the barracks (only watched). On the facts the intention to encourage couldn’t be established and were acquitted.

Lord Goddard said that intentional presence at a scene of an act was only evidence of abetting but in this case evidence was so strong - went to airport when Hawkins arrived, went to concert and wrote review that he was a party to Hawkin's breach.

The encouragement may be by words or conduct: nodding one’s head in endorsement of a plan may be just as effective as a verbal indication of agreement. Indeed, mere presence as part of a group can constitute abetment where the group as a whole encourages the principal to go ahead.

- Per Eichelbaum CJ: The encouragement must occur and be communicated to the principal

- In situations where he is not aware of the precise individual’s encouragement there still might be encouragement.

- says no reason to think that liability for abetting is contingent on proof the encouragement had some demonstrable effect or influence on the principal party.
- Shriek - encouragement must be communicated but will not construct an "all embracing or exhaustive definition to suit all circumstances"

(s66(d))
Incitement requires an instigation or urging, something that seeks to induce or encourage P to commit the offence.

Inciting means persuasion, inducement, coercion or urging. It comprises a greater pressure than encouragement.

provision of advice or information which may also amount to aiding or abetting. May also mean “to urge someone to commit an offence” which overlaps with incitement.

Procurement of an offence involves persuading, inducing or threatening someone else to commit a crime but unlike the other forms the secondary party must deliberately cause the principal to commit the offence.

Procuring means to procure by endeavor, or deliberately cause the principal to commit the offence.

The offence must actually occur. To procure means to procure by endeavour. You procure a thing by setting out to see that it happens and taking the appropriate steps to produce that happening.

Secondary liability is derived from S’s involvement in the principal offence, and not merely his attempt to become involved. It follows that S’s conduct must somehow be connected to the commission of the offence by P.

P must be aware not only of S’s encouragement (for example), but also that he is acting in accordance with, or within the scope of, the endorsement provided by S’s encouragement. So, the case suggests awareness is always required.

Awareness is not always required.

Although, causation need not be shown, it must be established by the prosecution that the principal received encouragement, incitement, or advice, before S’s conduct may count as participation falling within s66.

S may aid or abet an offence by omission.

- Where there is a duty
- CA held where parent permits another person to inflict fatal injuries on her child when she can prevent them, then they will be a secondary party to the culpable homicide (if by their failure they encouraged or intended to encourage).

- Non intervention in this situation by itself was not enough to constitute abetting b/c must encourage.

- Property valuer in the room when his secretary and another person fraudulently altered the value of the property.

- He was convicted as a secondary party and on appeal argued no intention to encourage.

- Court held an intention to encourage is not always required.

- Example: fight takes place on private premises then the occupier has the 'legal and factual power of control' intervene and evict participants;

- In this case, owner of car has control of its use and if owner of car allows person to sit in car and commit driving offences they may be liable as a party for aiding and abetting.

In NZ, applied Du Cros in an unqualified approval.

Larkins
R v Schriek

MR is summarized as follows:
i) S must intend his own contribution (ie to aid, abet, incite, counsel or procure P) and;
ii) S must know of the nature of P’s actions. That is, S must know of the “essential matters” relating to P’s actions which make those actions an offence.
iii) S’s own contribution; the intention to aid, abet, incite or counsel.

- The secondary party must desire or be virtually certain that they will assist the principal and nothing more.

- In this case, the principal’s motive in purchasing tablets from a pharmacist was to turn them into illicit drugs. The secondary party said didn’t have that same motive (profit). Court held this didn’t change his intention which flowed from the fact he knew the tablets would be transformed and he intended to help the principal from supplying tablets. It is that help, not the ultimate offence that must be intended, whether that aid is itself rendered for the further purpose of bringing about the offence is besides the point.

In Richards it was held that it didn’t only require a direct (purposive) intention but could also rely on an oblique intention.

“SP must at least know of the essential matters which make the principal's action an offence.”

It is authority for the proposition that knowledge of the probable but currently unknowable future conduct of the principal is sufficient. D was convicted as secondary party to the principal’s driving with an excess alcohol level under the Road Transport Act. The principal was the D’s partner who owed the car. CA recognized the alcohol breath level was an essential matter but no one would know what it is. The court insisted the secondary party be aware of the circumstances was drinking and was probably over the limit.

In order to have knowledge, S must accept or assume, and have no substantial doubt that the relevant facts are true.

It is not sufficient if D suspects the facts may well be true even if accompanied by a failure to inquire into the facts. Although, in this case the CA held that in the special case of willful blindness, S will be treated as having knowledge

S must know that P intends or contemplates doing actions which constitute the AR of an offence although S need not recognize that those actions in fact constitute an offence (selling kids clothing contrary to FTA)

Incidental variations of detail such as time and place are immaterial since they do not alter the type of crime committed by P.

He had supplied a torch to thieves and was held to be a secondary party to the breaking into bank and he said that he thought it would be used to break up stolen goods. Court held he had to have knowledge of the particular type of offence but didn’t have to know the details (particular bank at a particular time and place).

Convicted as a secondary party to aggravated burglary under s240(b) Crimes Act and he appealed on the basis he didn’t know that the principal had a weapon. It is aggravated burglary because of the possession of the weapon. The CA held that aggravated burglary is of a different type than simple burglary and the Crown would have to prove he knew the principal was carrying a weapon.

The secondary party thought that the principal would manufacture morphine or heroin. The secondary party supplied codine. The CA held that that level of knowledge and detail was sufficient although he didn’t know which drug would be manufactured. Would have “any prohibited drug” been have sufficient? This is the one alternative and must have knowledge of the type of crime.

- D drove the principal to a public house knowing the principal would either blow the pub up or shoot someone in it.

The court held that if the secondary party knows the principal will commit crime x or y or z and the principal’s commits x then this would be sufficient knowledge (because within range of offences).

The exact knowledge of the exact commission of the offence is not required (Do not need knowledge of how it is actually committed/manner).

S must also know that P will do the AR with the level of MR required for it to amount to an offence.

Joint Enterprise or Common Purpose Liability

Road sit hit of gang leader; He didn’t know that the principal would shoot. The killing of the V in broad daylight in front of witnesses may have been totally unexpected and completely unforeseen. The court ordered a retrial.

Court held you couldn’t be a secondary party to the principal’s crime of possession with an intention to sell or supply unless you knew both of the 1) principal’s possession and 2) intention to sell and supply the drug.

See Orchard ‘Parties to an offence: The function of s 66(2) of the Crimes Act’ [1988] NZLJ 151
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 of that offence was known to be a probable consequence of the prosecution of the common purpose.

He doesn’t need to intend the killing occurred or assist in the killing but he need only know that that be one of the probable consequences. It is irrelevant under s66(2) that S did not intend or assist or encourage crime B

In NZ it was pointed out this wasn’t necessarily the case, the words in the section “is a party to every offence committed by any one of them” means you could use it without any collateral offence and could use s66(2) to charge for the main offence. You could use 66(1) or s66(2) and act interchangeable which causes confusion. s66(2) is frowned upon to be used as convictions for charging of one offence. Neil Boister thinks Canadian view is better.

Canada SC held that the doctrine can only be used for responsibility for the collateral offences. The unlawful common purpose must be in respect of a main offence.

EXAM: If incidental offence with common purpose and something unusual happens stick to s66(2). Reason you might rely on s66(2) because “probable consequence” instead of s66(1) because requires intention

Section 66(2) requires that there be a common intention between the parties “to prosecute any unlawful purpose, and to assist each other therein.” S and P must, therefore, share an intention to commit a crime. However, there is no need for the prosecution to prove a formal or explicit agreement, or any prearrangement at all: It is sufficient even if the mutual intention between S and P arises only at the time the offence is being committed.

There must be proof of:
1. The actual offence for which there was a common purpose.
2. The incidental offence

V was killed in a bar room brawl. There was a common purpose to engage in a series of assaults and then V was killed - couldn’t be proven who gave the fatal blow.all escaped liability for the murder but all guilty of assault. The point is you need to be able to identify the principal.

- prosecution of the common purpose encompasses everything that a secondary party contemplates as reasonable but not remote, adjunct to the core of the unlawful enterprise.

- but can't be a "complete departure"

(E and W attacked police office and W stabbed police officer) E was convicted in the CA on the basis that he had joined in realizing there was a substantial risk that W would either seriously injure or kill the accused. However, in the HL his appeal succeeded because in their view E couldn’t be a party as the principal and his actions were “fundamentally different” (Lord Hutton) from those he had contemplated. The stabbing with the knife was “a complete departure” (value judgment about what is in his mind). It must be within the contemplation of the secondary party and if outside boundaries then individual as secondary party will not be liable under s66(2).

NZ case where the common purpose was burglary; the principal set fire to the premises and the court held that the secondary party was not a party to arson and it was not attributable to the D.

The MR requirement is subjective: S must actually foresee the likelihood that P will commit the essential matters of the collateral offence (Crime B).

Common purpose was to commit burglary but the principal was carrying a knife so he was guilty of aggravated burglary. However, the others couldn’t be guilty of aggravated burglary because they weren’t aware he was carrying a knife (couldn’t prove knowledge).

S will lack MR under s66(2) if he thinks the risk is negligible or only remotely possible.

HL held that if the two individuals foreseen the murder as a “real possibility.” Then they will be held responsible for the collateral offence. They have to foresee they will do the AR with the requisite MR and it is a “real possibility”

mere foresight is not enough: the accessory, in order to be guilty, must have foreseen the relevant offence, which the principal may commit as a possible incident of the common unlawful enterprise.

… Nor could it be seriously contended that it was not in the contemplation of the conspirators, who had provided Matenga with a loaded gun, that he might not kill with one or other of the murderous intents which in the event were alleged against him. In particular the prospect that he might cause grievous bodily injury for the purpose of facilitating the robbery, or his flight, must have been very real. As the Privy Council said in Chan Wing-Siu v R at p 178 the jury were entitled to remember that disastrous violent action on the impulse of a moment of emergency is very apt to occur when an intruder has a weapon.

Thought present at kneecapping but shot in the head; The court couldn’t prove the principals were carrying a knife or that he would use the gun in that way.The two were acquitted and their appeal succeeded

If the secondary party knows the principal intends to kill then it doesn’t matter what weapon used, the secondary party will have the MR.

If the character of the weapon, e.g. its propensity to cause death is different from any weapon used or contemplated by the others … the others are not responsible for the death unless it is proved that they knew or foresaw the likelihood of the use of such a weapon.

If you intend to cause GBH during the commission of a list of offences; robbery being one of them; and you kill someone then you are held to commit murder. S was guilty by virtue of s66(2) that he was guilty of murder if he knew that there was a real risk P would cause GHB to facilitate the robbery. The CA affirmed the correctness so since there is no requirement P foresees the death then there is no requirement for S either.

Powell and Daniels: Lord Steyn said it would be difficult to convict S if you insisted they share an intention to commit the collateral offence.

If secondary parties cannot be proven they have the necessary knowledge they can be convicted of a lesser offence.

The S drove the gang leader up to coast and the principal shot the other gang leader in the eye. This came as a complete shock to S. First held guilty of murder but on retrial for manslaughter.

The principal and S agreed to threaten a taxi driver using knives. The P stabbed the taxi driver and the P was convicted of murder (main offence robbery and collateral is murder). The S is convicted of manslaughter although he had not contemplated it as a real probability on the rationale that if you join a common purpose with the knowledge that knives are going to be carried the sense of the community would suggest you bear a share of criminal responsibility.

Secondary liability is thought to depend on the existence of a principal offender.

S instructed P (employee) to drive defective tractor on highway and it caused an accident killing the passenger of a car. P was acquitted but S was convicted as a party to the offence on the basis he had procured P’s commission of the AR.

You can aid an attempt but can’t attempt to aid.

Leading case is Pink. In most cases, you cannot undo crime, once the elements of an offence are satisfied an offence cannot be undone.

Hammond J identified 4 conditions for effective withdrawal of participation
1. There must be a fact of notice of withdrawal, whether by words or actions.
2. The withdrawal must be unequivocal.
3. The withdrawal must be communicated to the principal offenders. There is some question, however, as to whether all principal offenders must be informed of withdrawal.
4. The withdrawal must be effected by taking all reasonable steps to undo the effect of the party's previous actions (Menniti)

Where practicable and reasonable there must be a timely communication of the intention to abandon the common purpose from those who wish to dissociate themselves from the contemplated crime to those who desire to continue in it. Merely leaving the scene will not be enough, probably too late and not a reasonable step of withdrawal.

There is a point when withdrawal is impossible.

Not turning up will not be enough, when you have already effectively given the aid you intended to give. Won’t let Rook off the hook.
Exam: give a getaway car when they don’t actually use it

Australia; You don’t have to have total neutralization of everything you have done up until that point. You must simply take all reasonable steps to undo what you have done.