#8357 - Parties To Offences S66 - LAWS201 Criminal Law

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 Larkins - Lookout - Getaway driver Schriek - Encouragement ('inciting') - Counselling Timing Must occur prior to or contemporaneously; cut-off Same is earliest point of AR Turanga rejected Proof of actual required? Yes Yes Must be cause of 1* committing offence? No No, but must be some connection Agreement necessary No No Must 1* be aware of it? No Yes 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