Common Purpose and Conspiracy Liability in New Zealand: Criminality by Association?

Julia Tolmie   | Bio
Associate Professor at the University of Auckland Faculty of Law
Kris Gledhill | Bio
Associate Professor and Director of Clinical Legal Education at Auckland University of Technology Law School
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Abstract

Case law interpreting the common purpose aspect of party liability and the law on conspiracy in New Zealand (as set out in ss 66(2) and 310 of the Crimes Act 1961 (NZ)) has created a situation of over-reach. Individuals who have a limited relationship to criminality carried out by another or in a group context are potentially caught by extended liability rules that can lead to a poor association between the moral culpability of a defendant and serious criminal liability. Indeed, it is suggested that these forms of liability risk guilt by association rather than on the basis of individual positive fault: we suggest that New Zealand’s judges, following and sometimes expanding upon interpretations from other common law jurisdictions, have lost sight of the core concept of individual fault.

References

1 The UK Supreme Court in R v Jogee [2016] UKSC 8, [77] said, ‘It is important to emphasise that guilt of crime by mere association has no proper part in the common law’. Statutory exceptions to this principle include s 6 of the Summary Offences Act 1981 (NZ), which makes it an offence to associate with convicted thieves but only if the circumstances are such that another crime of dishonesty is likely to result and only if the person has been given three warnings about the risk of a charge. These are restrictive circumstances. Sections 6A and 6B have similar provisions relating to violent offenders and serious drug offenders.
2 Crimes Act 1961 (NZ) s 66(1)(a).
3 Crimes Act 1961 (NZ) s 66(1)(b)-(d).
4 There is a maximum penalty of seven years’ imprisonment if the substantive offence carries seven years or more, and otherwise the same as the substantive offence. There are also various specific conspiracies, which may have a different sentence regime or may not involve a specific offence and so be outside s 310: see s 116 (conspiracy to defeat justice); there is also conspiracy to do a treasonable act contrary to s 73(f), which, by reason of s 74, carries 14 years rather than the life sentence for acts amounting to treason.
5 (1868) LR 3 HL 306. A summary of the earlier development of the law, with relevant citations, can be found in R v LK; R v RK (2010) 241 CLR 177, [59]-[61] (French CJ).
6 (1868) LR 3 HL 306, 317.
7 [1985] 2 NZLR 740.
8 This would exclude anything that amounted only to a tort, for example, or more importantly the common law conspiracies to carry out acts that were not necessarily criminal but viewed as illegal, such as the conspiracy to corrupt public morals.
9 [1985] 2 NZLR 740, 743. Hardie Boys J in R v Sew Hoy [1994] 1 NZLR 257, 267 said that ‘the essence of conspiracy is an intention to agree coupled with a common design to commit an offence, that is, to put the design into effect’.
10 R v Mulcahy (1868) LR 3 HL 306, 317. See also Lord Salmon in Director of Public Prosecutions v Doot [1973] AC 807, 832 and Lord Wilberforce at 817-818. This has also led to the conclusion that a conspiracy to commit an offence by impossible means is nevertheless a crime: see R v Sew Hoy [1994] 1 NZLR 257, 267.
11 R v Wentworth [1993] 2 NZLR 450; R v Shaw and Snelleksz [2009] NZHC 2314; R v Pene CA, 1 July 1980.
12 R v Singh and Singh [2003] NZCA 289.
13 Waho v The Queen [2005] NZCA 68, [6].
14 [2014] 3 NZCA 484.
15 Note that the older authority of Cooper v Ministry of Transport [1991] 2 NZLR 693 suggests a watering down of the requirement of intention and knowledge, at least in respect of ‘unknowable facts,’ but this does not sit with the recent Supreme Court decision in Edmonds v The Queen [2012] 2 NZLR 445, [25].
16 R v Hamilton [1985] 2 NZLR 245; R v Renata [1992] 2 NZLR 346, 349.
17 Andrew Simester, ‘The Mental Element in Complicity’ (2006) 122 Law Quarterly Review 578, 580-600.
18 Whilst the person must foresee the incidental offending, as a matter of human nature belief in the best outcome is natural even when the worst is foreseen.
19 In relation to s 66(1) see also s 70(2): if the secondary party liability arises from prompting another to do something as a principal rather than helping them to do what they have decided to do, there can be liability if the principal takes a different but predictable course.
20 See Director of Public Prosecutions v Doot [1973] AC 807; R v Johnston (1986) 2 CRNZ 289; R v Sanders [1984] 1 NZLR 636; R v Darwish [2006] 1 NZLR 688.
21 [1984] 1 NZLR 636.
22 It may also be that a person becomes involved in an arrangement which is not known by them to be problematic, but then discovers that it is aimed at something criminal and at that point forms the necessary criminal intent. There will be no problem of a lack of concurrence of actus reus and mens rea because of the continuing nature of the offence. For example, in R v Harris [2006] NZCA 273, [66], Williams J for the Court of Appeal endorsed the direction of the trial judge that ‘people can join or leave a conspiracy at various stages of its overall existence’ and that an accused could ‘become a party to an already existing [conspiracy] if he co-operates knowingly to further its objective’.
23 In R v Meyrick and Ribuffi (1929) 21 Cr App R 94, 101, Lord Hewart CJ noted that in order that people may conspire together it is not necessary that there should be direct communication between each and all, and so it was a matter of evidence on the facts as to whether there was one large conspiracy or a series.
24 Note also the existence of the statutory offence of being involved in a criminal group, set out in s 98A of the Crimes Act 1961 (NZ).
25 [1972] AC 60, 79. Note also Willes J in Mulcahy (1868) LR 3 HL 306, 317, citing Grose J in R v Brisac and Scott (1803) 4 East 164, 171, indicating that it ‘is generally a matter of inference, deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them’.
26 [1986] AC 27.
27 Ibid, 38.
28 [1982] 1 NZLR 353.
29 Ibid, 356. There might be instances in which too many assumptions have to be made: for example, in R v White [1945] GLR 108, it was determined that the passing of a wallet into the pocket of another, which wallet contained what looked like folded cards of coupons, was an insufficient basis to find there was a conspiracy to utter forged coupons because too many assumptions had to be made as to existence of agreement to commit crime.
30 [1985] 2 NZLR 740, 745.
31 R v Greenfield [2002] NZCA 12: posting letters to two addresses to validate them for a future import of drugs sufficient to join the conspiracy.
32 R v Richards (1992) 9 CRNZ 403. This seems to go even further than playing a part in some of the conduct required by the conspiracy, noted above. Here it is possible to become a conspirator by providing the opportunity for another offence that will be carried out without any input from the facilitator. Note the contrasting approach in the context of causation: a person is not responsible for the autonomous choice of another adult merely because they have set up the circumstances in which that person has chosen to act: R v Kennedy [2007] 3 WLR 612 (overturning a manslaughter conviction in the case of the man who supplied the drug to another who died by injecting himself with the drug).
33 [2001] 3 NZLR 759.
34 Ibid, [26].
35 This provision preserves the rules of the common law relating to the admissibility of statements of co-conspirators or persons involved in joint criminal enterprises.
36 [2008] 1 NZLR 1, overturning R v Buckton [1985] 2 NZLR 257. See also R v Messenger [2008] NZCA 13; [2011] 3 NZLR 779 and Wu v The Queen [2011] 3 NZLR 764.
37 In R v Humphries [1982] 1 NZLR 353, 356, it was explained that ‘agreement between the parties implies authority in each to act or speak to attain the agreed object of all’ (and so the comments as to hearsay statements apply also to acts done that reveal what the conspiracy is). This was endorsed by the Supreme Court in Qui Jiang [2008] 1 NZLR 1, [24].
38 Beatrice Krebs, ‘Joint Criminal Enterprise’ (2010) 73(4) Modern Law Review 578, 580.
39 Ibid. See also John Smith, ‘Criminal Liability of Accessories: Law and Law Reform’ (1997) 113 Law Quarterly Review 453, 462-463.
40 There is limited case law on this: hence, the Justice Select Committee, UK House Of Commons, Joint Enterprise: Eleventh Report of Sessions 2010-12 (HC 1597, 17 January 2012) Vol 1, [33] has called for ‘guidance on the proper threshold at which association potentially becomes evidence of involvement in crime’.
41 This was the position recently taken by the New Zealand Court of Appeal in Bouavong v The Queen [2014] 2 NZLR 23, [74], [98]-[99]. After Ahsin v The Queen [2014] NZSC 153, [89], [101], Bouavong can no longer be taken as good law on this point.
42 [2014] NZSC 153.
43 Ahsin v The Queen [2014] NZSC 153, [102]. The words used in s 66(2) are ‘where two or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein’. See also Waho v The Queen [2005] NZCA 68, [6].
44 [2014] NZSC 153, [221]. See also [249], [295]. This was also acknowledged by the UK Supreme Court in R v Jogee [2016] UKSC 8, [78].
45 Note that William Young J saw the issue in terms of the overlap between the provisions but it could equally be characterised as an issue of the dovetailing interface between the provisions.
46 [2014] 2 NZLR 23.
47 Ibid, [105].
48 [2014] NZSC 153, [28], [38] (Elias CJ); [90], [97] (McGrath, Glazebrook and Tipping JJ); [239] (William Young J).
49 Ibid, [94]. Note that Elias CJ and William Young J employed different reasoning. Elias CJ appears to suggest at [28] that in circumstances of opportunistic offending the common purpose crime and the incidental offending might be the same under s 66(2), but it is not clear that that is an argument for the application of s 66(2) over s 66(1) when there is only one offence, as opposed to a description of how s 66(2) might operate if it was applied to such a set of facts. William Young J reasoned that s 66(1)(b)-(d) is a subset of s 66(2) at [237] and therefore in cases involving uncertain evidence – for example, where it is not clear what the scope of the common purpose is – it is simpler to direct the jury in terms of s 66(2) than framing the alternative factual possibilities in terms of multiple provisions at [240]. This rests on the decision that s 66(2) absorbs rather than dovetails with s 66(1) and it requires reading an alternative mens rea possibility (similar to that required under s 66(1)) into s 66(2). His position is different from the majority who appear to read s 66(2) not as absorbing s 66(1) but providing an alternative and broader form of liability.
50 Andrew Ashworth, Principal and Secondary Party Liability (Oxford University Press, 5th ed, 2006) 428, also stresses the importance of being ‘able to state clearly what the element of agreement necessary to qualify as a joint venture is’.
51 [2008] 1 NZLR 1.
52 The common law doctrine of common purpose is abolished by s 324C of the Crimes Act 1958 (Vic) enacted in the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 (Vic).
53 Inserted by the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 (Vic).
54 Crimes Act 1958 (Vic) s 323(1)(b).
55 Crimes Act 1958 (Vic) s 323(1)(d).
56 Similarly, a conspiracy has to involve a specific offence; the existence of the conspiracy to defeat justice in a separate section, s 116, is explicable because it does not require an agreement to commit an offence.
57 [2012] 2 NZLR 445, [9].
58 Ibid. This statutory offence – set by s 98A of the Crimes Act 1961 (NZ) – is an example of an ongoing criminal enterprise, which is what conspiracy liability has become: see the discussion above. See also Waho v The Queen [2005] NZCA 68, [6], where the common purpose was defined as being to ‘deal out retribution’ and ‘to deliver violence in retaliation’.
59 See, for example, R v Te Moni [1998] 1 NZLR 641.
60 Edmonds v The Queen [2012] 2 NZLR 445, [50].
61 Ibid.
62 Ibid, [51].
63 See, for example, Reddy v The Queen [2011] 3 NZLR 22, [39]. On this approach the accused would avoid liability only if what took place amounted to a different kind of generic offence from that foreseen. See Andrew Simester and Warren Brookbanks, Principles of Criminal Law (Thomson Reuters, 4th ed, 2012) 196.
64 Or the predicted weapon is used but in a different way to that which was predicted (for example, not to frighten but to kill); Attorney General’s Reference Under Section 36 of the Criminal Justice Act 1972, No 3 of 2004 v The Queen [2006] Crim LR 63; R v Uddin [1999] QB 431.
65 The UK Supreme Court in R v Jogee [2016] UKSC 8, [77] held that common purpose party liability was not part of the law in England. It was influenced in part by the concern that it invited guilt by association.
66 R v Powell; R v English [1999] 1 AC 1; R v Rahman [2009] 1 AC 129; R v Mendez [2011] QB 876; R v Uddin [1999] QB 431. In England it was considered that if the principal’s specific conduct which comprised the actual offending was of a ‘fundamentally different’ nature from the act which was predicted by the party, then the party cannot be held accountable for the offending on the basis that it is either a departure from the common purpose or that they lack the necessary mens rea because the incidental crime was not foreseen: see R v Mitchell [2009] 1 Cr App R 31. The English Court of Appeal in R v Mendez, above, determined that the specific actions of the principal will be ‘fundamentally different’ if they are actions which are more violent or involve a different level of dangerousness than acts of the nature which the alleged party foresaw. Amy Hill has characterised the English approach as a ‘process-focused approach’, which places ‘emphasis on the way the crime is inflicted and the defendant’s knowledge of the likelihood of that conduct’. She characterises the more recent New Zealand approach as an ‘outcome-focused approach’ which focuses on ‘the more general harmful outcome that the defendant knowingly risked through participation in the unlawful enterprise’. See Amy Hill, ‘Knowledge of the Weapon in Party Liability Cases: An Analysis of Edmonds v R’ (2013) 44 Victoria University of Wellington Law Review 167, 172. It could be more accurate to see the contrast between characterising offences in terms of how they manifest in particular factual events, as opposed to characterising offences in terms of the generic set of legal requirements that establish criminal liability (which could be satisfied by any number of particular factual incidents). For example, a defendant may commit three robberies – these incidents all meet the generic legal requirements for robbery set out in s 234(1) of the Crimes Act 1961 (NZ) – yet they are also three separate distinct robberies in that they are individual factual manifestations of these legal requirements.
67 Edmonds v The Queen [2012] 2 NZLR 445. See also Waho v The Queen [2005] NZCA 68; R v Vaihu [2009] NZCA 111.
68 Edmonds v The Queen [2012] 2 NZLR 445, [54].
69 Ibid, [47].
70 Simester and Brookbanks, above n 63, 199.
71 See Hill, above n 66, for a sustained defence which makes many of the points repeated here.
72 The words of the section require that the party foresaw ‘the commission of [the incidental] offence’ not the specific details of its execution. Note that it is possible to argue that the word ‘offence’ as it is used in s 66(2) could mean the specific incident of offending that was agreed to and/or contemplated by the party – rather than the generic offence. The fundamental difference rule as developed in England could be seen as an attempt to give expression to this alternative interpretation.
73 Edmonds v The Queen [2012] 2 NZLR 445, [46]. The court thought that tests as to whether the weapon that was foreseen was fundamentally different in lethality are indeterminate both legally and factually. Even if there was stability in the judicial approach to the factors that are material to the application of the test, each case is, in the end, a value judgment for the jury.
74 Ibid, [45]. The court thought that knowledge of the specific weapon or its equivalent does not bear a precise correlation to the accuracy of the party’s foresight of the risk of death or serious injury. The likelihood of serious injury or death predominantly depends not on the type of weapon used in an assault but the personalities and intention of those engaged, their states of emotional arousal and whether they have consumed alcohol or drugs etc. Note that it could be argued that the English ‘fundamental difference’ rule discussed in Edmonds is not confined to an examination of the type of weapon that was used, but is a more general normative inquiry encompassing the manner in which the weapon was used. Thus potentially increasing the range of other specific factual issues traversed in Edmonds as being relevant in elevating the degree of risk that was foreseen by the party. See Andrew Simester, John Spencer, Bob Sullivan and Graham Virgo, Simester and Sullivan’s Criminal Law: Theory and Doctrine (Hart, 4th ed, 2010) 238.
75 See also Reddy v The Queen [2011] 3 NZLR 22, [46], where the clear intention was to cause enough bodily harm to the victim in order to hospitalise them.
76 Contrary to the example provided by Simester and Brookbanks, above n 63, 197.
77 R v Keenan [2009] HCA 1, [64].
78 Ibid, [68].
79 R v Rapira [2003] 3 NZLR 794 (CA); R v Hartley [2007] 3 NZLR 299; Edmonds v The Queen [2012] 2 NZLR 445, [27].
80 R v Keenan [2009] HCA 1, [66].
81 R v Vaihu [2009] NZCA 111. See also R v Ma’u; Redman [2008] NZCA 117, [26]; R v Hirawani; Wilson and Henry (unreported, NZCA, 20 November 1990).
82 Ibid, [88]. See also R v Leuluaialii (unreported, NZCA, 22 November 2006). In R v McNaughton [2012] NZHC 815, [28] it was accepted that on the facts this was a case in which the Crown had to prove that the parties knew of the gun to have foresight of the incidental crime.
83 Hill, above n 66, 185-186.
84 R v Gush [1980] 2 NZLR 92 (CA), [94]; Reddy v The Queen [2011] 3 NZLR 22, [49].
85 In R v Ma’u; Redman [2008] NZCA 117, [69] it was said that ‘an inference of foresight will quite readily be drawn; voluntary participation in a criminal enterprise ordinarily permits just such an inference’.
86 [2007] 1 AC 18, [123].
87 Morris v The Queen [2001] 3 NZLR 759.
88 This risk is compounded by a judicial watering down of the statutory standard of risk for foresight of the ancillary offences set out in s 66(2). The statute requires foresight of the offending as a probable consequence – which the courts have interpreted to require foresight that the offending ‘could well happen’: R v Ma’u; Redman [2008] NZCA 117, [69]-[74].
89 See the facts of Ahsin [2014] NZSC 153 as they pertain to Ms Rameka for an illustration of these possibilities.
90 But see Nicola Lacey, ‘Space, Time and Function: Intersecting Principles of Responsibility Across the Terrain of Criminal Justice’ (2007) 1 Criminal Law and Philosophy 233.
91 R v Witika [1993] 2 NZLR 424. This possibility is specifically permitted by legislation in Victoria: Section 324B of the Crimes Act 1958 (Vic) makes it clear that the offenders role in the offending need not be determined.
92 In the first scenario, there may have been a precursor offence – for example, possession of articles designed for improper purposes, importation of precursor substances for drug manufacturing and the like.
93 [1997] 1 NZLR 150.
94 [1956] NZLR 110. The Court of Appeal noted in relation to Mr Dillon, who was acquitted of various substantive counts, that a conviction for conspiracy to defraud was proper. Indeed, it was suggested that it was proper to include the conspiracy provision in case the evidence did not allow a conviction on the specific offences alleged to have been part of the conspiracy at [113]. Conspiracy to defraud – no longer part of New Zealand law – did not require that the conspirators had a specific offence in mind; however, a specific offence has to be in mind in most conspiracy cases and so it would be unusual for the agreement not to amount to encouragement or participation of the sort that would found secondary liability.
95 [2007] 1 AC 18, [41]. Further, at [84] he noted that this was not something that was necessary in Scotland because it was possible for a single charge to be brought to reflect a series of identical transactions. Lord Brown noted at [123] that the English practice of requiring each substantive offence to be pleaded separately could lead to ‘absurdly overloading the indictment’. In short, this is a pleading point.
96 New Zealand criminal procedure allows representative charges, as in Scotland: see Criminal Procedure Act 2011 (NZ) s 20.
97 (1992) 9 CRNZ 403.
98 Ibid, [409].
99 For example, Speight J noted in R v Willoughby [1980] 1 NZLR 66, [67] that ‘charges of conspiracy should be used with discretion’. He suggested that it was improper to charge conspiracy when the essence of the allegation was that a substantive offence had been completed or attempted. Conspiracy should be used for scenarios of agreement without attempt or completion of the offence, though in cases where the evidence was unclear use of conspiracy in the alternative might be proper: R v Dillon and Cowie [1956] NZLR 110. See also R v Hampton [1968] NZLR 948, relying on R v Boulton 12 Cox CC 87, as applied in R v Dawson (1960) 44 Cr App R 87; R v Griffiths (1965) 49 Cr App R 279 and Verrier v DPP [1967] 2 AC 195. Endorsing this, the Court of Appeal in R v Humphries [1982] 1 NZLR 353 indicated that the Court ‘looks with disfavour upon the joinder of a count of conspiracy to specific counts which relate to the subject-matter of the conspiracy’. Nonetheless, on the specific facts, the Court allowed joinder of numerous substantive drugs offences and a conspiracy charge because the allegation was like the situation in Henry, namely a wider conspiracy and some mere incidents of it.
100 Indeed, this may require positive steps to undo what is developing if the rules applicable to withdrawal from secondary liability under s 66(1) are applicable: Ahsin and Rameka v The Queen [2014] NZSC 153, [124].
How to Cite
1.
Tolmie J, Gledhill K. Common Purpose and Conspiracy Liability in New Zealand: Criminality by Association?. LiC [Internet]. 2018Dec.19 [cited 2024Feb.21];34(2). Available from: https://journals.latrobe.edu.au/index.php/law-in-context/article/view/40

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