S66 2 Notes

Parties - s 66(2) Steps: 1. Identify whether the offence was committed in the prosecution of a common intention to do an unlawful purpose 1. Te Moni, Hubbard 2. Identify whether D knew (Hagen) the commissioned offence was a probable consequence (Gush) of the prosecution of the common purpose. 1. 2* liable for homicide: was death foreseeable as a consequence the unlawful purpose? (Hartley, Hirawina, English) 2. 2* liable for murder: if the 1* killing with the requisite mental element was foreseeable (Tomkins, Rapira) 3. Identify whether D had withdrawn from the common purpose before the offence was committed 1. Pink, Mitchell, Rook, Becerra, Gemmet S 66(2) All who participate are guilty of the offence if: There was a common intention to prosecute any unlawful purpose; and The offence was committed in the prosecution of the unlawful purpose; and The offence was known to be a probable consequence of prosecuting the unlawful purpose. Scope of s 66(2) R v Curtis [1988] CA Three homosexuals living together, V was tied up, murdered. S 66(1) is concerned with intention acts of aiding/abetting/encouraging in the commission of the 1*. S 66(2) is not concerned with the act which the 2* encourages, but with any act done by the 1* which, while not the result aimed at, was a probable consequence of the prosecution of the unlawful common purpose. A known serious risk is a probable consequence for this purpose. * 's66(1) requires knowledge plus an intention to assist or encourage' * For s 66(2) 'a knowledge of probability suffices', plus the common intention. R v O'Dell (1986) * A farmer's wife decided to have her husband murdered for insurance money. * Hitman got friend, O'Dell, to drive him close to the farm. * O'Dell had extensive knowledge about Tomlin's supposed plans, but also claimed to think he was joking and shooting a dog instead. 'this was not a case where one man, with another's understanding, set out to commit one crime but in fact committed another of a much worse or different variety.' Case shouldn't have been conducted in terms of s 66(2), but s 66(1) only - otherwise might confuse juries. R v Nathan [1981] CA Gang attack on V in a bar, multiple blows, impossible to tell who had struck fatal blow. 's 66(1) is not an appropriate provision under which to consider the case where the identity of the principal offender is not established.' S 66(2) can be used to convict parties to a common purpose of doing the object of Criminal Page 25 of the principal offender is not established.' S 66(2) can be used to convict parties to a common purpose of doing the object of that purpose, so long as all parties shared the same mens rea. But if the crime was ancillary to the common purpose, the mens rea of the individual who did the act would need to be proved before the derivative 2* crimes had been proven. Although its application is to the case where one of a party commits a crime not actually intended by the others but which they knew to be a probable consequence of the unlawful purpose ('collateral offences'), the subsection is not in terms limited to offences strictly collateral to the main purpose. i.e. Note just 'collateral offences', also the immediate object of the common purpose. R v Renata [1992] CA We can see no sustainable reason for that general proposition. If 1* not identifiable, enough for s 66(1) to prove that each individual accused must have been either 1* or a party in one of the ways covered by (1). 'Known' R v Hagen (2002) CA "Known" to be a probable consequence = a subjective test. 'The accused was not only a party to the common plan but also actually knew, not ought to have known, one of the parties to the plan would deliberately penetrate the victim's anus with the broom handle.' Intoxication is relevant to mens rea: 'the effect of alcohol on the accused's actual knowledge of what could well happen should be examined; ... If they were left with a reasonable doubt, whether by reason of alcohol or for any other reason ... Must acquit." R v Curtis 2* parties tied up victim, 1* stabbed The defence might have claimed that Curtis had no reason to take 1*'s intentions seriously. As Curtis had said in his first statement he had "heard it all before", suggesting that he had dismissed any supposed threats as no more than idle talk of a kind that Colin Jerry engaged in." Evidentiary domain. R v O'Dell "If, as O'Dell was later to say in the witness box, he regarded Tomlin's utterances and conduct as just another joke which T, said to be a prankster, often committed, then O could not be guilty of murder and he would have been entitled to an acquittal." But O'Dell said, 'that said, he was serious and was offering half the money just to drive you there, I was in." - stuffed him over. Enhanced knowledge of your collaborator could be an evidential basis for knowledge of probable consequences. R v Hubbard More than just a 'passing thought'. But wilful blindness may be evidence of actual knowledge. R v Emery No requirement to know particular offence that would be committed, just the type of offence. Proof of an 'offence' committed 'in prosecution Criminal Page 26

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