Let’s have a look at s 66(2) of the Crimes Act 1961 [NZ].
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.
In particular, focus on subsection (2), and, limiting our attention to the two-person minimum, call these two persons A and B. Person A is the one who commits an offence which B knows is a probable consequence of their acting in furtherance of their common purpose. This subsection makes B a party to that same offence. It is not necessary that B assisted in the commission of that offence or that B did anything else that would attract liability under subsection (1).
Extension of criminal liability for an offence that B has not committed or participated in is plainly a serious matter. So, what policy is at play here?
What B does is known by B to probably result in greater harm because of what A does, than the harm directly caused by B’s own acts. And it does result in that greater harm. Is this greater harm caused by B, or by A? And either way, is this a direct or an indirect result of B’s participation in the pursuit of the common purpose? The policy seems to be the discouragement of foreseeable harm.
Complex arguments in law are likely to be wrong. And, while the facts of criminal cases are usually simple, application of the law to them can be very difficult indeed.
In Burke v R [2024] NZSC 37 a year passed between the hearing of submissions and the delivery of the judgments, and the Court could not reach unanimity on its reasons for allowing B’s appeal. Person A murdered V and the issue was whether s 66(2) made B (the appellant) liable for manslaughter. The unlawful common purpose was to give V a serious beating. It was not proved that B knew that A had a weapon, a knife. A used the knife to murder V in the course of administering the serious beating. Manslaughter is, broadly, a culpable homicide that does not amount to murder: see s 160 of the Crimes Act 1961.
Did B have to know that the killing of V was a probable consequence of the serious beating? The majority (O’Regan, Williams and Kós JJ) held, no: [146], 170], [172]. It would have been sufficient for liability if B knew that A would probably use a weapon such as a knife: [45], [142], and he was not proven to have had that knowledge here.
The Court was unanimous in allowing B’s appeal. But Winkelmann CJ and, separately, Glazebrook J, differed from the majority’s reasoning. They both held that B would have had to have foreseen V’s death [180], [248], because to require something less would be to put a gloss on the statutory language. That is, it would be to read in a requirement of a foresight of harm that is more than trivial. The essence of subsection (2) is foresight of consequences, so it is logical to require foresight of death [225]-[229]; [291], [300], [304], [314]. But, the difficulty with this argument is that doing an unlawful act (here, assaulting V) knowing that death is a likely consequence, is murder: s 167(d) of the Crimes Act 1961, not manslaughter.
On whether the phrase “probable consequence” needs elaboration, only the Chief Justice dissented. The (new) majority held that no elaboration is needed beyond saying that it is a substantial or real risk, something that could well happen, and it could also be helpful to point out that probable is not the same as possible. [87]-[88]; [251]. The Chief Justice thought that the elaboration went too far beyond the statutory words and it would be unhelpful [235]-[236], but that if juries ask for assistance it could, in partial agreement with the other members of the Court, be helpful to contrast probable with “merely possible” [238].
There was agreement on the desirability of the alleged common purpose, which was for the prosecutor to define, to be aligned to the offence that was ultimately committed: [78]; [243]. This is because a close fit will make it easier to determine whether the offence was a probable consequence of the common purpose.
If we remember that in this case A pleaded guilty to the murder of V, see [21], and if we refer to s 66(2), it seems plain that this subsection could only make B a party to murder: “… is a party to every offence committed…”. Manslaughter should not be an option under this subsection in these circumstances. Yet this case has proceeded on the basis that the jury found B guilty of manslaughter under subsection (2).
It must have been wrong for the trial judge to sentence B on the basis that the jury had found him guilty under s 66(2). [25] The Crown case was that B committed murder, and the prosecutor did not mention manslaughter. [27] Defence counsel mentioned manslaughter while nevertheless arguing for a verdict of not guilty on murder and manslaughter. It is not stated under what provision defence counsel mentioned manslaughter, but it can only, it seems, have been subsection (1)(a). Here the theory would be that the unlawful act causing V’s death was B’s participation in a non-trivial assault on V. But the jury were not given this direction. [30]
The majority judgment appears to put this difficulty aside when it says that under subsection (2), “the issue becomes whether Mr Burke knew that a probable consequence of the prosecution of the common purpose was the commission of a culpable homicide different in nature from that actually committed by Mr Webber.” [34] However, under subsection (2) the possibility of B’s conviction for a different offence than that committed by A is excluded. The assumption upon which this appeal proceeded - that the conviction for manslaughter was under subsection (2), [37] - was false.
The Chief Justice, describing the state of the authorities as “unsatisfactory” [218], suggests that the offences were both culpable homicide [219]. The difficulty here is that culpable homicide is not itself an offence because no punishment is provided for it; it is a generic term, applicable to homicides that are not the result of blameless accident or self-defence, and distinguishing murder from manslaughter. "Culpable homicide" is a sub-category of homicides, which are murder, manslaughter, and what may be termed non-insane infanticide; those are the offences.
That aside, although the summary provided by the Court at [1]-[11] mentions the need to apply the judgment of the majority in future cases, it is difficult to resist the logic of the dissenting judges where they would require B to have foreseen death, and the observation by the Chief Justice that the answer may lie with the legislature [229]. The dissents do diminish the authoritative strength of this case (where they differ from the majority - there are significant areas of agreement).
Here, if at trial the Crown had wanted a verdict of manslaughter it would have included that specific charge, specifying that B’s liability was under s 66(1)(a). Perhaps the trial judge had been attempting to avoid the sense of injustice that could have followed a simple acquittal of murder. [1]
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[1] Update: The Crown and the appellant agreed that a conviction for a lesser offence should be substituted for the manslaughter conviction. This liability was plainly (although not stated) under s 66(1): Burke v R [2024] NZSC 59.
