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Parties To Offences S66 Notes

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This is an extract of our Parties To Offences S66 document, which we sell as part of our LAWS201 Criminal Law Notes collection written by the top tier of Univerity Of Otago students.

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Parties to Offences s 66 Aiding (Category 1)

Abetting (Category 2)

Crimes Act Section

S 66(1)(b)

S 66(1)(c)-(d)

Leading case/examples

- Lookout
- Getaway driver

- Encouragement ('inciting')
- Counselling


Must occur prior to or contemporaneously; cut-off Same is earliest point of AR Turanga rejected

Proof of actual required?



Must be cause of 1* committing offence? No

No, but must be some connection

Agreement necessary



Must 1* be aware of it?



How much required

"Minimal", "psychological comfort" is sufficient

Any amount is enough

Principal parties S 66(1)(a) - those who actually commit the offence. Direct participation It is possible for two people to commit all the AR and MR elements of a murder and jointly commit the crime, both as 1*s. Otherwise, the AR requirements can be divided between two parties: e.g. Robbery, one person with knife, the other taking wallet. AR elements may be separate in time (e.g. A writes letter, B later sends it). Where no direct participation?
By definition, a principal party must directly participate in an offence. CA got this wrong in Harawira [1989] CA 1* offence was injuring with intent to injure. Harawira supervised beating of psychiatric patient, and eventually grabbed V's junk and pulled. CA: "the only sensible way to characterise it is as a continuing assault to which Mrs Harawira contributed directly in that w ay at the later stages"
* Reasons why the CA was incorrect:

1. Harawira actually committed an assault against the victim, but the charge was not assault - the charge was 'injuring with intent to injure' and the CA acknowledges that "it was not that she herself caused actual injury to Matthews by those acts"
- she did not "actually commit" the offence, which is required by s 66(1)(a)

2. Harawira's presence during the beating supports an inference of intentional help or encouragement in the injuring, which fits nicely into s 66(1) (b) or 66 (1)(d).
- This is precisely the kind of case 2* party liability is designed for.

3. An "acting in concert" test for 1* liability inappropriately collapses the distinctions between 1* and 2* that are set our cl early in s 66.
- It is also an inexact form of liability with poorly defined limits. If the prosecution wants to take this route, it should use s 66(2). Subsequent cases have not followed Harawira.

Innocent agency If A procures B to commit an offence, and B lacks MR, B is an 'innocent agent'. B is not a 1*, as he lacks the MR necessary for the offence. A is not a 2*, as there can be no 2*s without a 1* offence. Solution #1 - Treat A as the 1* party A actually has the MR, and constructively performs the AR. R v Paterson [1976] CA P gave the innocent agent a key pretending it to be to his flat, and asked him to pick up a tv for him. It was not his. P was charged with burglary. s66(1)(a) was given an interpretation to read everyone is a party to ... an offence who "actually [or constructively] commits the offence." Possible Limitations:

1. Offences that can only be committed by a person in a statutorily defined class i) (e.g. bigamy; or s 229 - criminal breach of trust)

2. Offences that seem to require personal or direct bodily contact by the accused (e.g. Driving offences; rape and other sexual violation crimes)

Cogan and Leak [1976] Eng CA When it was legally impossible for a man to rape his wife, Leak procured Cogan to have sex with his wife. Cogan thought she w as consenting, so no rape Cogan then was not a 1*, so Leak could not be 2*. The Court found that although legally he could not rape his wife with his own body, Leak could constructively rape her throug h Cogan's body. The presumption didn't exist when a man procures a drunken friend to do the physical act for him. NZ adopted Cogan in R v Cooper (1988) HC Police v B [1991] NZCA
? NZ courts have continued to accept solution #1 and therefore have been applying the 'innocent agency' exception quite broadly

Criminal Page 20

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