Supreme Court gives guidance on party liability

In its recent decision of Ahsin v R, Rameka v R [2014] NZSC 153, the Supreme Court gives guidance on party liability, withdrawal, and jury unanimity under sections 66(1) and (2) of the Crimes Act 1961. This précis of what is a 308 paragraph decision can only briefly summarise principal points and focuses on the majority judgment. Practitioners are referred to all three judgments for detail and discussion of further points.

Dr Heather McKenzie

Factual background
Four accused were convicted of murder in the High Court at Whanganui in September 2008. The appellants were convicted as parties. The defendants had links to Black Power as either patched members or associates (in the appellants’ case). The offending involved a series of separate incidents directed against members or suspected members of the Mongrel Mob including:

• an altercation with a Mongrel Mob member at a supermarket;

• threatening people in parked cars while brandishing a knife and yelling Black Power slogans;

• throwing a spanner at a car in which a suspected Mongrel Mob member was sitting; and

• assaulting the deceased, who they thought was a Mongrel Mob member, by punching him and striking him twice with an axe (see, for example, [59]).

The Supreme Court allowed the appeals, quashed the appellants’ convictions for murder, and directed new trials.

Elements of party liability under sections 66(1) and 66(2)
The majority held that the legal elements of section 66(1)(b) that the Crown must prove beyond reasonable doubt are:

• the offence to which the defendant is alleged to be a party was committed by a principal offender;

• the person alleged to be a party assisted the principal offender in the commission of the crime by words or conduct or both;

• the person alleged to be a party intended to assist the principal offender to commit that particular offence; and

• the person alleged to be a party knew both the physical and mental elements of the essential facts of the offence to be committed by the principal offender (at [83]).

Sections 66(1)(c) and (d) have the same elements, but concern abetting and inciting, counselling or procuring (at [82]).

The majority considered that a “particular feature” of section 66(1) is that it concerns conduct providing assistance or encouragement that may be complete before commission of the crime for which it is provided (at [82]). The Chief Justice dissented on this point and was of the view that the assistance or encouragement must continue when the offence is committed (at [20]).

For party liability under section 66(2), the Crown must prove beyond reasonable doubt that:

• the offence to which the defendant is alleged to be a party was committed by a principal offender;

• there was a shared understanding or agreement to carry out something unlawful;

• the person(s) accused of being parties to the agreement had all agreed to help each other and participate to achieve their common unlawful goal;

• the offence was committed by the principal in the course of pursuing the common purpose; and

• the defendant intended that the offence that eventuated be committed, or knew that the offence was a probable consequence of carrying out the common purpose. This requires foresight of both the physical and mental elements of the essential facts of the offence (at [102]).

The majority was satisfied that section 66(2) liability can be engaged where:

• the offence that occurs is an intended offence (for example, the object of the common purpose); or

• the offence was not intended by the party, but was known to be a probable consequence of the joint enterprise (at [90]).

Common law defence of withdrawal
there are two requirements for the common law defence of withdrawal:

• there must be conduct, whether words or actions, that “demonstrates clearly” to others withdrawal from the offending; and

• the withdrawing party must take “reasonable and sufficient” steps to undo the effect of his or her previous participation or to prevent the crime (at [134]). This second limb requires a “careful factual inquiry” (at [135]).

The Supreme Court remarked at [140]:
“Although the way the trial judge frames the questions for the jury must always reflect the circumstances and issues in the particular case, it will often be helpful to direct the jury to consider whether it was reasonably possible that:

(a) the defendant demonstrated clearly, by words or actions, to the principal offender that he or she was withdrawing from the offending before the offence was committed?

(b) the defendant took steps to undo the effect of his or her previous involvement or to prevent the crime?

(c) the steps taken by the defendant for those purposes amounted to everything that was reasonable and proportionate, having regard to the nature and extent of the defendant’s previous involvement?

(d) the steps taken by the defendant were timely, in the sense that the defendant acted at a time when it was reasonably possible that he or she may be able either to undo the effect of his or her prior involvement or to prevent the crime?”

If each question above is answered “yes” on the basis that there is a reasonable possibility that it is so, the Crown will not have disproved the defence of withdrawal beyond reasonable doubt (at [141]). The common law defence must be put to the jury where there is evidence indicating the reasonable possibility of its availability and it is for the trial judge to decide if an evidential basis for both requirements exists. The defendant will be liable as a party only if it is proved beyond reasonable doubt that he or she had not withdrawn from involvement. If there is a reasonable possibility they did, the defendant has a defence to criminal liability under sections 66(1) or (2) (at [139]).

The judge must direct on the legal requirements in a manner that links them to the particular facts of the case, tailored to reflect the cases for and against a defendant (at [142]).

Juror unanimity
Where different provisions of section 66 are relied on in a single charge, it is sufficient for a unanimous verdict if each juror is satisfied that the legal elements of one form of liability under section 66(1) or (2) are established. It is not necessary for a jury to be unanimous regarding whether their verdicts are based on section 66(1) or (2) (at [178] and [195]).

Nor does a jury need to agree unanimously on the precise acts constituting the factual basis for the verdict. Where alternatives relate only to the form of involvement in a single transaction or event, there will be a sufficient factual basis for a guilty verdict if the jury is unanimously of the view that the defendant was involved in the transaction one way or the other (at [187] and [195]). There may be exceptions, as the majority discussed at [188].

Dr Heather McKenzie is a Crown prosecutor at Raymond Donnelly & Co in Christchurch. Her main areas of practice include regulatory prosecution and proceeds of crime.

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