Thursday, December 22, 2011

Extended secondary liability: assessing the risk

"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."

So says s 66(2) of the Crimes Act 1961 [NZ], defining extended secondary participation in offending. The contentious phrase has been "a probable consequence", giving rise to arguments about whether a common intention to use one form of violence, for example, made the use of another more serious form a probable consequence. In turn this led to arguments that use of a knife was not a probable consequence of the use of, say, a common intention to use a baseball bat, or that use of a gun was not a probable consequence of, say, a common intention to use of a knife.

In Edmonds v R [2011] NZSC 159 (20 December 2011) the Supreme Court rejected continued development of this line of case law and directed a return to the words of the statute. 

Of course the same issues will continue to arise: was the common intention one which had the probable consequence of the commission of the offence in question? In violent offences the sort of weapon actually used will usually be relevant, but in a way that is directed to the probability of its being used as assessed from the point of view of the defendant who had the original purpose in common with the principal offender.

"[47] The  approach  of  New  Zealand  courts  to  common  purpose  liability  must  be firmly  based  on  the  wording  of  s  66(2).   That  section  recognises  only  one  relevant level of risk, which is the probability of the offence in issue being committed.  If the level  of risk  recognised  by  the  secondary  party  is  at  that  standard,  it  cannot  matter that the actual level of risk was greater than was recognised.  It follows that there can be  no  stand alone  legal  requirement  that  common  purpose  liability  depends  on  the party’s knowledge that one or more members of  his or her  group were  armed or, if so, with what weapons.  As well, given the wording of s 66(2), there is no scope for a liability  test  which  rests  on  concepts  of  fundamental  difference  associated  with  the level  of  danger recognised  by  the  party.    All  that  is  necessary  is  that  the  level  of appreciated risk meets the s 66(2) standard."

From this it is clear, or at least so it seems to me, that (i) the risk recognised by the secondary party is the risk he actually perceived, not the risk he ought to have perceived, (ii) if the secondary party perceives the risk as a "probable consequence" that is sufficient for his liability, (iii) the secondary party may recognise that risk without knowing that the principal party has a weapon, (iv) there are no gradations of the culpable risk - either the preceived risk is of a "probable consequence" or it isn't.

It follows that evidence of the alleged secondary party's knowledge of the possession of a weapon of a different kind from that actually used is relevant not as itself a criterion for liability but rather as material to whether those criteria are met.

This approach to extended secondary liability will apply by analogy to all offences, not just those involving violence. The central issue is whether the alleged secondary party had what amounted to a belief that commission of the actual offence was a probable consequence of the common intention to commit the originally intended offence. It will not be necessary to prove that the alleged secondary party knew that the principal had the means to commit the actual offence, but if he did know that the means existed that would be relevant to assessing whether he had the necessary perception of probable consequence.

As the Court points out (49), it is for the prosecutor to say what the alleged common intention was. The closer the commonly intended offence was to the commission of the offence that was actually committed, the easier it should be to prove that the latter was a probable consequence of commission of the former.

This decision puts extended secondary liability back on the statutory track, away from which the case law had allowed it to drift. However the role of the phrase "in the prosecution of the common purpose" in s 66(2) could still give rise to debate. In committing the offence for which extended secondary liability is contended, did the principal offender go outside - and bring to an end - the prosecution of the common purpose? Had commission of the commonly intended offence been abandoned? This sort of issue is not likely to arise in cases of violence, where the use of force can be seen as a continuum with the commonly intended offence merging with the one for which extended liability is in question. While Edmonds deals with an aspect of extended secondary liability, other problems in applying s 66(2) will need to be addressed.