Association Offences.pdf

Association offences

Table of Contents
Table of Contents
2
Policy statement and principles
4
What
4
Why
4
How
4
Overview
5
Purpose
5
Health and safety duties
5
Related information
5
Offences reported and recorded
6
Offences reported to, or discovered by Police must be recorded
6
Code book ‐ charge wording, penalties and more
6
Accessory after the fact
7
What is an accessory after the fact?
7
Examp es
7
Who are not accessories after the fact?
7
Rece v ng
7
Establishing offence
7
Attempting to be an accessory
8
Table of offences
8
Penalty
8
Who may be charged
9
f the offender  s acqu tted
9
Evidence of offending
9
Further information
9
Conspiracy
10
What is conspiracy?
10
When the cr me has not been comm tted
10
Table of offences
10
Proving the offence
10
Participating in a conspiracy
11
Mens rea
11
Offences outside New Zealand
11
P ace of comm ss on of offence
11
Charges
11
Consp racy between spouses or c v  un on pa tners
11
Consp r ng w th unknown persons
12
Substantive charges
12
Procedures when obtaining evidence
12
Notes about ev dence
12
Further information
13
Parties to offences
14
What is a party to the offence?
14
L ab ty for probab e consequences
14
D fference between part es and accessor es after the fact
14
L ab ty for offences comm tted  n a d fferent way
14
Definitions
14
A d ng
15
Abets
15
nc tes
15
Counse s
15
Procures
15
Probab e consequence
15
Any person
15
Offence
15
Further examples
15
Establishing offences
16

Attempts
16
Mens rea
17
Negligence
17
Bystanders
17
Spec a  re at onsh p w th offender  s requ red
17
Investigating parties
17
Further information
17
Secondary offences by parties
19
Liability for secondary offences
19
Examp e
19
Question of fact
19
Further information
19
Prosecution and conviction of parties to offences
20
Proceedings against principal and secondary offenders
20
me  m t
20
Convictions
20
Conv ct on of pr nc pa  offender not necessary
20
Uncorroborated ev dence of accomp ces
20
Innocent agents
20
Formulating charges
20
Charges under sect on 66
21
Spec f c party offences
21
Examp es of spec f c pa t es re ated offences
21
Further information
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Association oﬀences
Policy statement and principles
What
This chapter outlines secondary offences associated to a principal offence. An association offence is one where there are two or more
participants involved in the offence.
Association offences cover situations of:
‑ a person being a party to an offence at any or all stages of aiding, abetting, or actually committing an offence and includes
inciting, counselling, or procuring, another person to commit the offence
‑ more than one offender being involved, then there is generally a conspiracy relating to that offence
‑ when the principal offence has been committed and other people may become involved later as accessories after the fact.
Why
Association offences are central to the provisions of the Crimes Act 1961. They specify the various ways in which persons can become
liable for participating in the commission of offences. Police have a responsibility to keep people safe from victimisation by:
‑ preventing harm
‑ investigating parties to offences, conspirators and accessories after the fact
‑ apprehending offenders.
How
Police will ensure:
‑ they continue to work pro‐actively with partnerships, prevention first and victim focused strategies, and
‑ association offences are investigated as thoroughly as principal offences and resolution action taken as deemed appropriate.
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Association oﬀences
Overview
Purpose
This chapter explains the law, gives examples, and provides basic procedures and guidelines for investigating each of these association
offences:
‑ accessory after the fact
‑ conspiracy
‑ parties to an offence.
If a planned offence does not take place, or if there is insufficient evidence to prosecute for the principal offence, do not forget that one
of these association offences may have been committed.
Health and safety duties
The expectation of the Commissioner and the Health and Safety at Work Act 2015 is that employees investigating association offences
will take reasonable care to ensure that their acts or omissions do not adversely affect the health and safety of themselves or others,
comply as far as they are reasonably able to with any reasonable instruction that is given to adhere with the Act and its regulations.
A key enabler is the application of the TENR‐Operational threat assessment in the workplace. See also ‘Health, safety and wellbeing’
for keeping our communities safe, and ensuring our people are safe and feel safe.
Related information
Refer also to the Police Manual chapter 'Attempts' for related information.
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Association oﬀences
Offences reported and recorded
Offences reported to, or discovered by Police must be recorded
The National Recording Standard (NRS Section 1.3) contains rules and principles governing recording of offences.
Recording offences intranet page provides an overview of these rules and contains links to training and resources.
Code book ‐ charge wording, penalties and more
The Legislative Reference Table (LRT ‐ Code Book) is a search tool that links to information about all offence, incident and task codes.
The code book provides information for each offence code.
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Association oﬀences
Accessory after the fact
What is an accessory after the fact?
An accessory after the fact is someone who, knowing a person was a party to an offence receives, comforts, or assists that person or
tampers with or actively suppresses any evidence against them, in order to enable them to escape after arrest or to avoid arrest or
conviction.
s71(1) Crimes Act 1961
Examples
Examples of accessories after the fact include people who, with the requisite knowledge:
‑ provide accommodation for an offender until they can escape from Police
‑ provide transport so the offender can escape
‑ destroy or dispose of documents or evidence (e.g. clothes or weapons used in an offence).
Who are not accessories after the fact?
Accessories after the fact are not people who are:
‑ a party to the offence (they are involved before or during the offence, whereas an accessory is involved after the offence is
completed (see R v Mane (1989) 5 CRNZ 375 and Larkins v Police [1987] 2 NZLR 282)
‑ a person whose spouse (not including a de facto spouse) or civil union partner was a party to an offence and who does an act to
enable that spouse or any other party to the offending to evade justice.
Receiving
A person does not become an accessory after the fact simply by receiving property that is dishonestly obtained. You must be able to
prove that they received the goods in order to help the offender.
Establishing offence
This table outlines the essential elements of liability which must be proved under section 71(1): see R v Thomson (1992) 9 CRNZ 108
(HC).
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You must prove:
Comment
(a) that an offence was committed by a
It must be proved that the person whom the accessory assisted was guilty of an offence,
person
although they do not need to have been convicted.
The alleged accessory is entitled to insist on proof that the offence was actually
committed, and to challenge that proof.
(b) that the suspect received, comforted, or Receiving, comforting, assisting or tampering with or actively suppressing evidence are
assisted that person or actively suppressed
not mutually exclusive categories of conduct and may overlap ‐ for example tampering
evidence against that person
with evidence may also amount to assisting.
There must be deliberate action and more than a mere omission to act, although in
some circumstances passive acquiescence may be culpable, for example, if a person
allows a known offender to take refuge in their house.
The accessory’s actions do not need to be entirely successful in helping the offender
escape from justice, but must help them in some way.
(c) that at the time of the above action, the
There must be proof of either actual knowledge or wilful blindness that the person
suspect knew that the person was a party to being assisted was party to the relevant offence.
the offence
This knowledge must exist at the time of the assistance.
(d) that the purpose of the suspect’s action
All acts must be done with the express intention of helping the person to evade justice,
was to help the person evade justice
but this does not need to be the accessory’s only or dominant motivation.
Attempting to be an accessory
A person can be charged for attempting to be an accessory where they do an act for the purpose of helping an offender evade justice,
but that act does not actually help the offender. For example, in Nicolls v R [2016] NZCA 201, the defendant was convicted of
attempting to assist the offender to avoid arrest despite the fact that her texts warning him of the presence of the Police near his hiding
place were sent after he had in fact been taken into custody.
Table of offences
While section 71 provides a definition of accessory after the fact, it does not create a substantive offence. There is provision for the
punishment of accessories in a small number of offences, and in other cases, section 312 applies.
Offence
Crimes Act 1961 section Category
Accessory after the fact to treason
76
Category 4 ‐ see note below table
Accessory after the fact to piracy
97
Category 3
Accessory after the fact to murder
176
Category 4 ‐ see note below table
Accessory after the fact to a crime other than those specified 312
To determine category ‐ see note below table.
Note: Accessory after the fact offences are usually the same category of offence as the principal offence, by virtue of section 6(2)(c) of
the Criminal Procedure Act 2011. For example, murder is a Category 4 offence, thus the offence of accessory after the fact to murder
also features as Category 4. There may be exceptions for specific offences that are listed in the Court of Trial Protocol for Category 2
and 3 offences, for example the offence of being accessory after the fact to piracy (section 97).
Penalty
Unless a different penalty is specified in the Crimes Act or another enactment, an accessory after the fact to any imprisonable offence is
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liable to these penalties (s312).
If the imprisonable offence is
punishable by...
an accessory after the fact is liable to a term of imprisonment...
imprisonment for life
not exceeding 7 years
imprisonment for 10 or more years not exceeding 5 years
other penalties
not more than half the maximum punishment to which they would have been liable if they had
committed the principal offence.
Who may be charged
A person charged with being an accessory after the fact may be proceeded against:
‑ whether or not the principal offender or any other party to the offence or the person by whom the property was obtained has
been proceeded against or convicted
‑ alone, as for a substantive offence, or jointly with the principal or other offender or person by whom the property was stolen or
dishonestly obtained.
(s137 Criminal Procedure Act 2011)
If the offender is acquitted
A person may be convicted as an accessory after the fact even if the original offender has been or may be acquitted (whether in a joint
or separate trial) unless in all the circumstances the accessory's conviction is inconsistent with that acquittal.
Inconsistency depends on the state of the evidence. For example, where the same evidence is relied upon to prove elements of the
accessory charge and to prove the principal offence, the quashing of the principal offender’s conviction due to a material misdirection
on the elements of the offence will mean that the accessory’s conviction cannot stand: Tere v R [2011] NZCA 549; Lemanu v R [2011]
NZCA 613.
Evidence of offending
The evidence for a charge of accessory after the fact is usually discovered when you are investigating the principal offence or after the
principal offender's arrest. For example:
‑ a search of the crime scene or principal offender's address may indicate someone has tampered with evidence, or
‑ a delay in locating the offender could mean they are being hidden.
Evidence of the suspect's involvement may come from:
‑ their admission of helping the offender
‑ their behaviour revealing guilty knowledge
‑ the principal offender's admission of receiving help after the crime
‑ independent witnesses
‑ circumstantial evidence
‑ your own observations (e.g. seeing the person hinder Police in their investigation or helping the offender in some other way)
‑ forensic evidence (e.g. DNA located on murder weapon of an accessory).
Further information
See the commentary in Westlaw NZ for further explanation of the terms applied to section 71 (accessory after the fact) of the Crimes
Act 1961.
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Conspiracy
What is conspiracy?
Conspiracy is not defined in statute but left to common law to establish the ingredients of the offence.
In essence, a conspiracy is an agreement between two or more people to commit an offence (an act or omission punishable by
statute).
When the crime has not been committed
Conspiracy obviously occurs before the principal offence is committed or attempted. Therefore, in cases where the crime has not
actually been committed, and where there is insufficient evidence to prove attempt, a charge of conspiracy may be appropriate.
Table of offences
This table lists conspiracy offences and their jurisdiction.
Conspiracy to...
Crimes Act section
Category
commit an offence other than those specified in Crimes Act 1961
310
See below*
(see note below)
commit treason
73(f)
See below*
commit piracy
96
See below*
make a false accusation
115
See below*
defeat justice
116
See below*
murder
175
See below*
prevent collection of rates and taxes
309
See below*
*Conspiracy offences are the same category of offence as the principal offence, by virtue of section 6(2)(c) of the Criminal Procedure
Act 2011.
Note: Section 310 applies to any conspiracy to commit any offence, in other words any act or omission definable and punishable under
the provisions of section 6 of the Criminal Procedure Act 2011. Conspiracy is not in itself an offence ‐ the offence is conspiring to
commit a specified offence.
Proving the offence
A conspiracy exists as soon as two or more people agree to commit an offence, or in other words to do an unlawful act by unlawful
means (Director of Public Prosecutions v Doot [1973] AC 807). It continues until they have carried out their plan or ended their
agreement.
The ‘agreement’ is the crucial factor. The agreement need not be expressed clearly in words. It is sufficient that the conspirators act
together with the same or common aim. People can create a conspiracy in a moment, and it may last only for a minute.
Mere intention to commit an offence is not enough to create a conspiracy ‐ a conspiracy exists when the plan moves beyond intention
and there is an agreement to carry it into effect (R v Dil on [1956] NZLR 110 (CA)). However the exact details of the planned offending do
not need to be finalised, and no actual steps need to be taken toward offending. For example, there may be a conspiracy to rob a bank,
even though the question of which bank is still left open.
If ‘A’ plans to commit an offence and ‘B’ simply knows that ‘A’ has a plan, or was present when A discussed the plan, this is not enough
for the charge of conspiracy. Each party to the conspiracy must agree to the plan and intend that it be carried out.
The courts may deduce that a conspiracy has occurred merely because of the actions of the people involved.
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Participating in a conspiracy
The agreement need not be secret. However, people who know of the agreement are not guilty of conspiracy unless they are actually
part of the agreement.
As conspiracy is complete upon agreement and continue until the plan is carried out, a person withdrawing from the agreement is still
guilty of conspiracy, as is any person who becomes party to the agreement after it has been made. However, a person can effectively
withdraw before the actual agreement is made.
A person withdrawing from the agreement is still guilty of conspiracy, as is any person who becomes party to the agreement after it
has been made. However, a person can effectively withdraw before the actual agreement is made.
Because the conspiracy continues until the offenders commit the offence or end the agreement, people can withdraw from the
conspiracy and fresh conspirators join, but there is still only one conspiracy as long as the people involved are acting together to
achieve the same criminal aim. In such a situation it would be practical to charge all of the alleged co‐conspirators jointly.
A person can be tried and convicted of conspiracy alone, e.g. when the other party is not able to be located to be charged. (R v Shaw)
Mens rea
Members of a conspiracy need to have both an intent to agree, and an intention that the plan actually be carried out. Passive
acquiescence in a course of conduct over which the defendant would have had no influence is not enough.
In Churchil v Walton [1967] 2 AC 224 the judge held that the accused must have an intention to commit an act which, on the facts
known to them, is unlawful. They don’t need to know it is a crime, but they do need to know the facts that make it unlawful. An
ignorance of the law is no excuse (s25 Crimes Act 1961).
While there must be an intention that the agreement be carried out, a participant in a conspiracy need not be capable of committing
the substantive offence (e.g. a quadriplegic can conspire to commit murder even if they are incapable of carrying it out).
Offences outside New Zealand
Under section 310 of the Crimes Act, it is an offence to conspire to commit an offence or to do or omit to do anything, in any part of the
world that would be an offence in New Zealand. The person has a defence if they can prove that the act is not an offence under the law
of the place where it was to be committed.
Place of commission of offence
Under section 7 of the Crimes Act, an offence is deemed to have been committed in New Zealand (and therefore within the jurisdiction
of New Zealand's courts) if:
‑ any act or omission forming part of the offence occurs in New Zealand, or
‑ any event necessary to the completion of the offence occurs in New Zealand.
The person charged with the offence, does not need to have been in New Zealand at the time of the act or omission or event.
It is sufficient that one act or omission forming part of the offence, necessary for its completion occurs in New Zealand. (R v Sanders
[1984] 1 NZLR 636)
Charges
If the conspirators are charged:
‑ jointly, and any are acquitted, the others will be acquitted only if the evidence against them all is the same
‑ separately, some may be acquitted while others are convicted.
Conspiracy between spouses or civil union partners
A person is capable of conspiring with their spouse or civil union partner, or with their spouse or civil union partner and any other
person (s67 Crimes Act 1961).
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Conspiring with unknown persons
A person who conspired with other unknown people may be indicted, tried alone and convicted, as long as there is proof that an
agreement was made with the unknown person, e.g. a phone conference call where an agreement is reached but the ID of one is
unknown. (R v White (1945) GLR 109 and Shaw v DPP [1962] AC 220)
Substantive charges
If you can prove a substantive charge of a specific offence, you should charge the suspect with that offence, not with conspiracy. For
example, if you can prove two people murdered another, charge them with murder, not conspiracy to murder.
You should not normally charge a suspect with an offence and conspiracy to commit that offence because:
‑ the judge may disallow evidence admissible only on the conspiracy charge because it might prove to be prejudicial to the other
charge (e.g. the jury may assume the accused’s guilty knowledge or intent regarding the substantive charge on the basis of the
evidence presented to support the conspiracy charge)
‑ an added conspiracy charge can unnecessarily complicate and prolong a trial
‑ if the conspiracy charge is not founded on evidence or is an abuse of process, it may be quashed
‑ the court may order severance in the interests of justice (i.e. each charge or in some circumstances series of charges may be
heard at separate trials).
Do not omit a conspiracy charge if the substantive offence does not represent the total criminality. For example, if two people
succeeded in burning down a warehouse and then conspired to murder a witness, they should be charged with arson and conspiracy
to murder.
Procedures when obtaining evidence
Follow these steps when obtaining evidence of conspiracy.
StepAction
1
Obtain statements from witnesses about:
‑ who made the agreement
‑ who else was present at the time
‑ the planned offence
‑ whether the conspirators acted to further their aim.
2
Interview everyone involved. People are usually unfamiliar with the offence of conspiracy and, while they may be reluctant to
admit committing any substantive offence, they will often discuss planning a crime, which may constitute conspiracy.
3
Establish:
‑ that there was an agreement to commit an offence
‑ the identity of the parties
‑ whether any of the parties said, wrote, or did anything to further the common aim.
4
Consider:
‑ obtaining a search warrant to seize evidence to support charge(s)
‑ electronic interception if circumstances justify this.
5
Evaluate the evidence and consider whether a charge of conspiracy is appropriate.
Notes about evidence
‑ Evidence given by an accomplice against their co‐conspirator does not need to be corroborated for the accused to be convicted.
Neither does a judge have to warn a jury about the absence of corroboration (s121 Evidence Act 2006).
‑ Conspirators should be jointly charged. Anything one of them said or did to further the common intention is admissible against
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the other.
Further information
See the commentary in Westlaw NZ for further explanation of the terms applied to section 310 (conspiring to commit an offence) of the
Crimes Act 1961.
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Parties to offences
What is a party to the offence?
A party to the offence is a person who either:
‑ actually commits the offence
‑ does or omits an act for the purpose of aiding a person to commit the offence
‑ abets a person in the commission of the offence
‑ incites, counsels or procures any person to commit the offence.
All parties are equally liable for the substantive offence.
s66(1) Crimes Act 1961
Liability for probable consequences
Where offenders agree to commit an offence together, all who entered the agreement can be charged as parties to that offence. They
can also be charged as parties to any secondary offence any one of them commits in order to assist the commission of the offence
originally agreed to (provided that the commission of the secondary offence was a probable consequence of pursuing the unlawful
agreement).
s66(2)
Difference between parties and accessories after the fact
Parties include those who actually commit the offence (principal offenders) and those who assist before and during its commission
(secondary offenders). A person involved after the offence is completed is not a party, but an accessory after the fact.
Larkins v Police [1987] 2 NZLR 282
Liability for offences committed in a different way
A person who incites, counsels or procures another to commit an offence is still liable as a secondary party under section 66(1) even if
that offence is committed in a different way than incited, counselled or suggested. The offence must be in the same type as the
secondary party originally intended, or one of a range of offences that they knew the principal offender was likely to commit.
s70(1)
Definitions
This table gives meanings and examples of key terms.
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Term
Means
Example
Aiding
To assist or help a person commit the offence or give
‑ Keeping lookout for someone breaking and entering.
them support, advice or information.
‑ Supplying jumper leads or tools for someone unlawfully
taking a motor vehicle.
(There must be proof of actual assistance).
‑ Telling a burglar when their victims are out of the house.
Abets
To instigate or encourage another person to commit
A woman encourages her lover to murder her husband.
the offence.
Note: “Abets’, “incites” and “counsels” overlap on their
ordinary meanings.
Incites
To rouse, stir up, stimulate, or urge a person to commit A sports fan spurs on another to assault a protester and yells
the offence.
approval while the offence is taking place.
Note: “Abets’, “incites” and “counsels” overlap on their
ordinary meanings.
Counsels
To intentionally instigate the offence by advising a
Teaching someone how to open a safe.
person on how to commit an offence, or planning its
commission for another person.
Note: It is not necessary for the person counselling the offender
to know about the particular offence the offender plans to
Note: “Abets’, “incites” and “counsels” overlap on their commit.
ordinary meanings.
Procures
To cause an offence or ensure its commission by
Hiring someone to undertake a contract killing.
knowingly and intentionally obtaining another person
to carry it out.
Note: It is possible to procure by fraud, persuasion, words or
conduct, e.g. by offering money to someone.
You procure by setting out to see that something
happens and taking steps to ensure that it does.
Probable
Something that the person knows could well happen ‐
consequence a real or substantial risk.
R v Gush [1980] 2 NZLR 92 (CA)
Any person Includes an innocent agent
Innocent “agent” may be procured to commit offence.
R v Paterson: used an innocent agent to uplift TV from a flat he
wrongfully had a key to. Act of innocent agent was regarded as
act of person who procured them.
Offence
As categorised by section 6 of the Criminal Procedure
Act 2011.
Further examples
This table gives further examples of when people are parties to offences.
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Association oﬀences
A person who...
is a party to...
supplies equipment or lends a motor vehicle to be used in a burglary
burglary
brings a woman to a party with the intention that she is subjected to gang rape
rape
as an employee, gives the office key to a burglar, or who intentionally leaves a factory door unlocked for a burglar
burglary
unlawfully takes a car so that an accomplice can use it as a getaway vehicle for a robbery
robbery.
Establishing offences
This table outlines the key ingredients of 'party' offences and what must be proved.
Offence
You must prove the suspect’s identity and
Comment
ingredient that...
& Crimes
Act section
Party to the
‑ they actually committed the offence
This may include the use of an innocent agent to carry out the act.
offence
s66(1)(a)
Party to the
‑ the offence was committed by a
You do not need to prove which of the subsections (b)‐(d) applied to the
offence
principal offender; and
suspect, just that the suspect participated in the offending. The
‑ the secondary party aided, abetted,
secondary party must have rendered actual assistance to the principal
s66(1)(b) ‐
incited, counselled or procured the
offender (Ahsin v R 2014] NZSC 153).
(d)
principal party in the commission of the
offence by words or conduct or both; and
‑ the secondary party intended to aid etc.
the principal party to commit the offence;
and
‑ the secondary party knew the essential
physical and mental elements of the
offence to be committed.
Party to a
‑ the suspect was party to an agreement This implies a forming of common intention. Subsection (2) deals with
secondary
to prosecute an unlawful purpose; and
offences that were not planned by the conspirators, but are committed
offence
‑ knew that the secondary offence was a in furtherance of the planned offence. They must be reasonably
probable consequence of the prosecution foreseeable.
s66(2)
of the common purpose.
Party who
‑ the offence was committed by a
The word “likely” carries the same meaning as “probable” in section 66
incites,
principal offender; and
(2) ‐ something that is a real or substantial risk, and that could well
counsels or
‑ the secondary party incited, counselled, happen.
procures
or procured the principal offender to
commit an offence; and
s70(1) and
‑ that offence was committed in a way
(2)
different from that which was incited,
counselled, or suggested; or
‑ the offence committed was a likely
consequence of that inciting, counselling
or procuring.
Attempts
Inciting, counselling and procuring take place before the offence is committed. This means it is still possible to be guilty of being a
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party to an attempted offence if the principal offence was not committed. Liability for this situation is covered by section 311(2).
Except where punishment is specifically provided, everyone who incites, counsels, or attempts to procure any person to commit any
offence, when that offence is not in fact committed, is liable to the same punishment as if he had attempted to commit that offence.
Mens rea
In general, a secondary offender cannot be found guilty if the principal offender does not have the necessary mens rea (intent).
For exceptions, refer to sections 21(1) and 22(2) (relating to children and young people), 23(4) (insanity), 178(8) (infanticide) and 180
(5) (suicide) of the Crimes Act 1961.
Negligence
A secondary offender does not need to know that the law was being broken, but they must know the essential facts of the offence.
Secondary offenders cannot be held liable for mere negligence or failing to investigate, but may be liable if they deliberately “turn a
blind eye” to the principal offender's actions.
Bystanders
A witness to an offence is not a secondary party merely because they did nothing to prevent it. But if a bystander actively encourages
someone to commit an offence (e.g. urging another to assault a Police officer) the act of encouragement would make that person a
secondary party. An inference of intention to encourage can be inferred if a person is deliberately present, offering no opposition to the
offending where they might have been expected to do so (Charnley v R [2013] NZCA 226).
Special relationship with offender is required
A person who merely stands by at the scene of a crime and does nothing is not liable as a secondary party unless they have a special
relationship with the offender, or owe a legal duty to the victim or general public. If a person is under a legal duty, (e.g. those duties
identified under sections 150, 150A ‐ 157 of the Crimes Act) they can be liable under section 150A(2) for omitting to perform that legal
duty.
This table shows examples of situations where someone with a duty of care to an offender may be liable as secondary parties for aiding
and abetting an offence, if they fail to intervene in its commission.
Situation
Relationship and duty to offender
An army sergeant who watches one of his soldiers The army sergeant has a special relationship with the offender, since he has a
assault a civilian.
right or power of control over the actions of his soldiers.
A parent who looks on while his child is assaulted The parent has a legal duty to protect and assist the child.
by an acquaintance.
A person who does not take reasonable
The driving teacher has a legal duty to take reasonable precautions to protect the
precautions when teaching another to drive.
general public.
Investigating parties
Use the same procedures when investigating parties as you would for the principal offender. You will usually discover parties during
the course of your enquiries. For example:
‑ it may be apparent from the crime's reconstruction that another person must have been involved, or that the offender received
advice or assistance
‑ the principal offender may admit when giving a statement that others were involved
‑ a suspect or witness may admit providing aid
‑ a witness may give evidence of another person's involvement
‑ you may receive information indicating someone else was involved.
Further information
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Association oﬀences
For further explanation of the terms, see the commentary in Westlaw NZ:
‑ section 66 (parties to offences)
‑ section 70 (offence committed other than offence intended).
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Association oﬀences
Secondary offences by parties
Liability for secondary offences
A secondary offence is an offence that is committed during the process of committing the principal, intended offence, or the
prosecution of a common unlawful purpose.
Party liability for secondary offences is covered by section 66(2), which provides that where two or more people form a common intent
to help each other do something unlawful, each is a party to every offence committed by any one of them if the commission of that
offence was known to be a probable consequence of pursuing the common purpose. Therefore a person may be liable for an offence
that they did not intend or actively participate in, as long as it was something that they knew could well result from the prosecution of
their agreed purpose.
Conversely, if one party to the agreement commits a secondary offence that goes beyond what could have been seen as a probable
consequence of the planned offending, other parties will not be liable for that offence. This may involve the commission of a different
type of offence, or the use of a more serious level of violence than was planned or anticipated.
Liability for secondary offences is also available under section 70(2). Where someone incites, counsels or procures another person to
commit an offence, they are liable for every offence that the person commits, if they knew that offence was a likely consequence of
their inciting, counselling or procuring.
Note: Sections 66(2) and 70(2) can also cover party liability for the intended offence, although in such cases liability will usually be
available under sections 66(1) and 70(1).
Example
If the parties agree to an offence that involves the use of a weapon or other serious violence, and the principal offender kills someone
while carrying out their joint intention, then the secondary offender is equally responsible in law for the killing. As it was a probable
consequence of their plan. So, if ‘A’ acts as a lookout for ‘B’ who is committing an armed robbery, and ‘B’ happens to kill their victim,
‘A’ is also liable for culpable homicide. (R v Betts and Ridley (1930) 22 Cr App R 148).
If the parties agree to an offence which they do not expect to involve violence and, while carrying out that common intention, the
principal offender uses violence, then a secondary offender who took no physical part would not be liable for the consequences. For
example, if during the course of a burglary where violence was not anticipated, the principal offender assaults a bystander, a lookout
would not be liable for the assault.
Question of fact
It is a question of fact, for the jury to decide, whether suspects knew that furthering the common aim was likely to result in the offence
in question.
Further information
See the commentary in Westlaw NZ for further explanation of the terms applied to section 66 (parties to offences) of the Crimes Act
1961.
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Association oﬀences
Prosecution and conviction of parties to offences
Proceedings against principal and secondary offenders
You may take proceedings and obtain a conviction against every secondary offender, either with (jointly) or separately from the
principal offender. Liability of secondary parties depends generally on their knowledge, intention and actions ‐ not the knowledge,
intentions and actions of the principal offender.
Time limit
The time limit for filing a charging document against a secondary offender is the same as that for the principal offender.
Convictions
An accomplice secondary party can be convicted of a lesser crime than the one that the principal offender is convicted of, particularly
in cases of culpable homicide (which comprises both murder and manslaughter). For example, in R v Hartley [1978] 2 NZLR 199 the
Court of Appeal ruled that in a gang shotgun killing, accomplice secondary party could be convicted of manslaughter and the principal
offender of murder. Whether a secondary party is liable for murder or manslaughter will depend on their level of intention or foresight.
A person charged as a party to murder will be guilty of:
‑ murder, if they:
‑ intentionally helped or encouraged the primary offender to kill someone, or
‑ foresaw it as a real risk in the situation that arose that one of the parties to a common unlawful purpose would kill with
murderous intent
‑ manslaughter, if they:
‑ knew that at some stage there was a real risk of killing short of murder, or
‑ foresaw a real risk of murder, but the killing occurred in circumstances different from those contemplated, or
‑ can be expected to have known there was an ever‐present real risk of a killing e.g. due to the presence of lethal weapons.
R v Tomkins [1985] 2 NZLR 253 (CA)
Conviction of principal offender not necessary
Secondary liability needs to derive from the liability of a principal offender, so it must be proved that a principal offender committed
the offence to which the defendant is a secondary party. However a person can still be convicted as a secondary party if the principal
offender has not been prosecuted or convicted. This may be because the principal offender cannot be located or identified, or is
acquitted due to infancy, insanity, death, or the availability of a defence.
So long as it can still be proved that the principal offender actually committed the offence, even if they have been acquitted, the
secondary party can be liable. However, the conviction of a secondary party where the principal offender has been acquitted will be
unsafe if the verdicts are truly inconsistent ‐ for example, if there are different findings as to the principal’s liability based on the same
evidence.
If the offence can be committed only by a particular class of person, such as the driver in a hit and run incident, and that person is
acquitted, no one can be convicted as a secondary party.
Uncorroborated evidence of accomplices
A court can convict on the uncorroborated evidence of an accomplice.
Innocent agents
An innocent agent is someone who actually commits the offence within the meaning of section 66(1), but does so without the required
mental state. This innocence may be due, for example, to youth, mental disability or ignorance of the facts. An innocent agent cannot
be convicted as a secondary party (R v Paterson [1976] 2 NZLR 394 (CA)). The person who directs an innocent agent to commit a crime
can be treated as the principal offender, liable under section 66(1)(a), rather than a secondary party, as they have the required mental
state and have committed the physical elements of the offence through the agent.
Formulating charges
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Association oﬀences
Charges under section 66
Where section 66(1) applies and it can be clearly shown how the suspect became a party to the offence, you must use the same
wording as for the principal offender, prefacing the charge with the words 'was a party to'.
You must also add at the end of the charge ". .in that you did:
‑ aid
‑ abet
‑ incite
‑ counsel, or
‑ procure .. (use one or a combination of these words, e.g. 'aid and abet' or 'counsel and procure')
. .the commission of the said offence."
If a person is being charged as a party to an offence, the relevant option from section 66(1) should be referred to in the charging
document. This ensures the defendant knows the charge being laid. If this is not done, the prosecutor must advise the court that the
defendant is charged as a party, before:
‑ the summary of facts is read out on a guilty plea
‑ evidence is heard in a judge‐alone trial or jury trial as the case may be.
If section 66(2) applies (i.e. the person is a party to a secondary offence) or it is unclear which subsection applies, formulate the charge
as for a principal offender.
Specific party offences
Where there is a specific offence of aiding, abetting, inciting, counselling or procuring, choose a charge under that section (e.g. inciting
a person to resist a constable ‐ s23(a) Summary Offences Act 1981).
Note: In offence provisions such as s23(a) which specifically refer to the actions of the secondary party (i.e. 'inciting') you do not cite
s66 on the charge. This is because the secondary element of "inciting" is an ingredient of the substantive offence under s23(a), namely
inciting a person to resist arrest.
Examples of specific parties related offences
Some examples of association offences are:
Section
Offence
s98A Crimes Act 1961
Participation in an organised criminal group
s6A Summary Offences Act 1981
Associating with violent offenders
s6B Summary Offences Act 1981
Associating with serious drug offenders
Further information
See the commentary in Westlaw NZ for further explanation of the terms applied to section 66 (parties to offences) of the Crimes Act
1961.
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