Secondaries and Complicity Liability

Statutory Provisions

• s 66 Crimes Act

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.

(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.

*s 70 Crimes Act

70 Offence committed other than offence intended

(1) Every one who incites, counsels, or procures another to be a party to an offence of which that other is afterwards guilty is a party to that offence, although it may be committed in a way different from that which was incited, counselled, or suggested.

(2) Every one who incites, counsels, or procures another to be a party to an offence is a party to every offence which that other commits in consequence of such inciting, counselling, or procuring, and which the first-mentioned person knew to be likely to be committed in consequence thereof.

• s 311(2) Crimes Act

311 Attempt to commit or procure commission of offence

...

(2) Every one 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, unless in respect of any such case a punishment is otherwise expressly provided by this Act or by some other enactment.

Commentary

Definitions

aids – assists
abets – encourages
counsels – provides advice, information
incites – instigates
procures – produces by endeavour

Cases

R v Paterson

• Facts

Principal asked D to collect TV from ‘principal's flat’.

However, the flat wasn't the principal's and collecting the TV amounted to theft.

• Held

Section 66(1)(a) covers innocent agents, however, some offences cannot be committed by innocent agent e.g. bigamy, perjury.

R v Renata

• Facts

Secondary charged with manslaughter.

Judge told jury that to be guilty, defendant had to advert to the material circumstances – i.e. the defendant must foresee that death could happen.

• Held

For section 66(2) liability for a crime committed pursuant to an unlawful purpose, the defendant need not foresee death for involuntary manslaughter (ie unlawful act causing death) because death was a strict liability element.

R v Te Moni

• Facts

P and S robbed bank.

During the robbery, P seemed to abandon the intent to rob. A teller dived for P's gun and was shot and killed.

S argued that since P abandoned the robbery, the common purpose ended.

• Held

The common purpose includes everything contemplated as reasonable to the core enterprise including someone fighting back and being injured.

Larkins v Police

• Facts

S overheard people planning liquor store burglary. Decided to act as lookout unknown to principals.

• Held

To be a secondary, a person must actually assist.

Lookouts usually provide comfort, however, a lookout can also provide an extra pair of eyes.

Therefore, a person may assist even though the principal is not aware of the assistance

R v A

• Held

A woman can be charged as a principal of unlawful sexual connection with a man when that connection involves penetration of the woman without (i) the man’s consent or (ii) a belief on reasonable grounds in his consent.

R v Pink

• Held

A secondary can withdraw as long as his or her influence is abrogated.

Withdrawal may be effected by words or actions, must be equivocal and must be communicated to principal offenders. In addition, the person withdrawing must take reasonable steps to undo their previous actions.

R v Hartley

• Facts

Motorcycle gang raided rivals. P killed victim. Others charged as secondaries under s 66(2).

• Held

Where a secondary didn’t contemplate killing with murderous intent, it is possible for P to be guilty of murder and S of manslaughter.