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University of Otago Law Theses and Dissertations |
Last Updated: 11 April 2024
Do the Time but not the Crime?
The Conundrums Presented by Parasitic Accessorial Liability
Rory Bevins
A dissertation submitted in partial fulfilment of the requirements of the degree of Bachelor of Laws (Honours) at the University of Otago
October 2023
Acknowledgements.
Thank you to Stephen Smith for your guidance and support.
Thank you to Margaret Briggs for your useful advice at my seminar.
Thank you to Adam Simperingham for the inspiration for this dissertation.
Thank you to Molly for your invaluable help and proof reading. Thank you to everyone who has supported me on my journey. Thank you to my friends for the banter and the memories.
Most importantly, thank you to my family for your unwavering support, belief, counsel, and love.
Table of Contents
Introduction.
Mahana Edmonds was convicted of a killing,1 someone else committed.2 New Zealand’s Supreme Court upheld this conviction.3 Mahana and his associates had armed up and confronted members rival gang associates.4 During this confrontation, one of Mahana’s associates killed a man.5 Mahana’s conviction is a typical example of parasitical accessorial liability (PAL).
PAL is one of three types of joint enterprise liability.6 The Crimes Act 1961 s 66(2) (the section) implements PAL into New Zealand law,7 governs New Zealand's law on PAL and stipulates where PAL arises in New Zealand.8 The wording of the section stipulates that where two 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.9 The section contemplates PAL situations involving two offences, the first offence is one that all parties jointly agree to commit (the unlawful common purpose), and the second further offence (the incidental offence) that is committed by only one of the parties to the unlawful common purpose in the prosecution of the unlawful common purpose.10 PAL under the section means the parties who agree to commit the unlawful common purpose become liable as secondary parties for any incidental offence committed by another party to the unlawful common purpose if they had the required mens rea for PAL of foreseeing that the commission of the incidental offence was a probable consequence of prosecuting the unlawful common purpose.11 These secondary parties
1 Deena Coster “Man responsible for 2008 killing of Taranaki man gets parole for second time” (8 October 2018) Stuff <https://www.stuff.co.nz/national/crime/107674972/man-responsible-for-2008-killing-of-taranaki- man-gets-parole-for-second-time>.
2 Amy Hill “Knowledge of the Weapon in Party Liability Cases: An Analysis of Edmonds v R” (2013) 44 VUWLR 167 at 170.
3 Edmonds v R [2011] NZSC 159 at [56].
4 Hill, above n 2, at 170.
5 Hill, above n 2, at 170.
6 Joanne Cecil and James Mehigan A Practical Guide to Secondary Liability and Joint Enterprise Post-Jogee
(Law Brief Publishing, Somerset, 2020) at 3-5.
7 Crimes Act 1961, s 66(2).
8 Julia Tolmie “Uncertainty and Potential Overreach in the New Zealand Common Purpose Doctrine” (2014) 26(2) NZULR 441 at 441.
9 Crimes Act 1961, s 66(2).
10 A to Z of New Zealand Law (online ed, Thomson Reuters) at [20.6.5].
11 A to Z of New Zealand Law, above n 10, at [20.6.5].
found liable under PAL are liable as if they committed the incidental offence,12 and are liable even if they were not directly involved in the incidental offence or did intend the incidental offence be committed.13 Those who actually commit the incidental offence are called principal parties (the principal).14 An example of PAL under the section is two defendants agreeing to commit a home burglary and one attacking the victim during the burglary.15 In this example, the attacking defendant would be liable for assault as the principal,16 and if the non-attacking defendant knew that the attacking defendant had a propensity towards violence and would likely respond violently to being confronted by the victim, they would be liable as a secondary party to the assault under PAL.17
The New Zealand Supreme Court decision of Ahsin v R,18 identified the elements required for PAL under the section.19 The Supreme Court in Uhlre v R approved these elements and declined to depart from the stipulations of the section.20 However, in general, PAL is a problematic area of law,21 which has caused concern among academics and practitioners,22 and been questioned internationally.23 Reflecting this sentiment, New Zealand’s law on PAL has not escaped concern, criticism, and question.24 Accordingly, there have been calls to reform New Zealand’s current law on PAL.25
Whilst the Ahsin decision essentially settled New Zealand’s law on PAL, the 2021 case of Burke v R in New Zealand’s Court of Appeal challenged New Zealand’s current law on PAL in relation to unlawful act manslaughter.26 The facts of Burke illustrate a classic PAL scenario. The defendant Justin Burke was a gang member,27 and he travelled with other gang associates
12 Sam Way “Joint Enterprise: The Need for Reform” (2015) 79(5) The Journal of Criminal Law 326 at 326.
13 A to Z of New Zealand Law, above n 10, at [20.6.5].
14 Adams on Criminal Law – Offences and Defences (online ed, Thomson Reuters) at [CA66.02].
15 A to Z of New Zealand Law, above n 10, at [20.6.5]. 16 A to Z of New Zealand Law, above n 10, at [20.6.5]. 17 A to Z of New Zealand Law, above n 10, at [20.6.5]. 18 Ahsin v R [2014] NZSC 153 at [102].
19 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.24].
20 Uhrle v R [2016] NZSC 64 at [5].
21 “Reconsidering common purpose liability” (2016) 4 NZLJ 125 at 125.
22 Natalia Perova “Stretching the Joint Criminal Enterprise Doctrine to the Extreme: When Culpability and Liability Do Not Match” (2016) 16(5) International Criminal Law Review 761 at 761.
23 Perova, above n 22, at 763.
24 “Reconsidering common purpose liability”, above n 21, at 126.
25 Kris Gledhill “Common purpose liability” (2016) 11 NZLJ 406 at 406.
26 Burke v R [2021] NZCA 279 at [1].
27 At [5].
to confront a misbehaving gang member, Shane Heappey.28 With Justin present, Shane was stabbed and killed by one of these gang associates.29 Justin said they planned to give Shane a telling-off and maybe a few punches but not seriously hurt him.30 For Shane’s killing, Justin was charged as a secondary party under s 66 of the Crimes Act 1961 (the Act) to murder under the Act s 167.31 Justin was found liable under PAL, under the section, for unlawful act manslaughter (unlawful act manslaughter PAL).32 Justin appealed his conviction to the Court of Appeal.33 The appeal ground in the Court of Appeal that is relevant to this dissertation was that the jury was misdirected about the level of foreseeability required for unlawful act manslaughter PAL.34 The crux of this appeal ground was to what extent a defendant charged with unlawful act manslaughter PAL must foresee that the principal would inflict violence on the deceased and what level of violence must have been foreseen to be liable for unlawful act manslaughter PAL.35 The arguments concerning this appeal ground concentrated on whether foresight of death is required for a defendant to be liable for unlawful act manslaughter PAL.36 On this appeal ground, the Court of Appeal concluded that a defendant is liable for unlawful act manslaughter PAL if an unlawful act likely to do more than trivial harm to the deceased was known by the defendant to be a probable consequence of prosecuting the unlawful common purpose; and that unlawful act was a substantial and operative cause of the deceased’s death.37 The Supreme Court granted leave to appeal in Justin Burke's case on the issue of whether the Court of Appeal had correctly decided this appeal ground and interpreted and applied PAL in relation to unlawful act manslaughter PAL.38 It follows that the Supreme Court appeal will examine the issue of what level of foresight is required for a defendant to be liable for unlawful act manslaughter PAL, in relation to what extent the defendant must foresee the principal would inflict violence on the deceased and the level of violence the defendant must foresee, for unlawful act manslaughter PAL, with a particular focus on if the defendant must foresee death to be liable for unlawful act manslaughter PAL (the Burke manslaughter
28 At [5]-[16].
29 At [17]-[20].
30 At [22].
31 At [26].
32 At [30] and [139].
33 At [31].
34 At [35].
35 At [36].
36 At [37]-[40].
37 At [66].
38 Burke v R [2022] NZSC 124.
question). This dissertation will refer to this issue as the Burke manslaughter question, and the Burke manslaughter question has been recognised as an unresolved issue in New Zealand law.39 All this illustrates that there is debate about what the future of PAL in New Zealand’s law should be and how New Zealand’s law should answer the Burke manslaughter question. Accordingly, this dissertation will examine and conclude on these two key issues. The first key issue being what the future of PAL in New Zealand’s law should be. The second key issue being how New Zealand’s law should answer the Burke manslaughter question.
This dissertation’s analysis of these two key issues will be split into an introduction, three chapters, and a conclusion. The first chapter will examine the relevant past and current laws of New Zealand and the United Kingdom concerning secondary liability, PAL, and the Burke manslaughter question. The second chapter will examine the discussions concerning New Zealand’s current law on PAL and how New Zealand’s law could and should answer the Burke manslaughter question. The third chapter will conclude on this dissertation’s two key issues in the form of a recommendation in relation to each of this dissertation’s key issues after examining the discussions concerning what the future of PAL in New Zealand's law could and should be and how New Zealand's law should answer the Burke manslaughter question. The third chapter will also discuss and determine if the recommendation in relation to either of this dissertation’s key issues could be implemented into New Zealand's law on PAL and if the recommendation in relation to either of this dissertation's key issues will be implemented into New Zealand's law on PAL.
Chapter One.
A. Introduction.
This chapter will examine New Zealand and the United Kingdom's relevant past and current laws concerning secondary liability, PAL, and the Burke manslaughter question.
B. New Zealand’s Law.
The section is part of the Act s 66 (s 66), so it is vital to understand the relevant context and workings of s 66, which is a general provision applicable to every offence unless the relevant legislation specifies otherwise and provides for secondary liability for participating in the commission of offences.40 It treats all participants as parties and makes them equally liable for the relevant offence’s penalties.41 Further, under s 66, the person who actually commits the offence is called the principal or the principal party, while everyone else liable under s 66 is called a secondary party.42 There are two parts to s 66.43 The first part is the Act s 66(1) (s 66(1)), which provides that everyone is party to an offence and liable for that offence in four situations.44 The three situations relevant to this dissertation are contained in the Act s 66(1)(b)-
(d) (s 66(1)(b)-(d)),45 which provides that a person is liable if they do or omit an act to aid any person to commit an offence, abet any person in the commission of an offence, or incite, counsel, or procure any person to commit an offence.46 The actus reus required for liability under s 66(1)(b)-(d) is complete when the actual assistance, encouragement, inciting, counselling, or procuring occurred, and the principal actually commits the offence.47 The mens rea required for liability under s 66(1)(b)-(d) is an intention to help or encourage the principal to do the acts which constitute the offence,48 and knowledge of the essential matters relating to the actions of the principal, which make them an offence.49
The second part of s 66 is the section which governs PAL.50 This dissertation has already covered what the wording of the section is. The section imparts liability in different circumstances to s 66(1)(b)-(d),51 because s 66(1)(b)-(d) imparts liability for intentional participation in the very offence committed by the principal,52 whilst the section imparts liability for incidental offences committed by the principal after the formation of the unlawful
40 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.01]. 41 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.01]. 42 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.02]. 43 Crimes Act 1961, s 66.
44 Crimes Act 1961, s 66(1).
45 Crimes Act 1961, s 66(1)(b)-(d).
46 A to Z of New Zealand Law, above n 10, at [20.6.4].
47 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.18]. 48 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.20]. 49 A to Z of New Zealand Law, above n 10, at [20.6.4].
50 Crimes Act 1961, s 66(2).
51 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.24].
52 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.24].
common purpose.53 The New Zealand Supreme Court in Ahsin identified the five elements that must be proved beyond reasonable doubt for PAL under the section.54 The first element is the incidental offence to which the defendant is alleged to be party to was committed by the principal.55 The second element is that there was a shared understanding or agreement to do something unlawful.56 The third element is that the person or persons accused of being parties to that agreement had agreed to help each other and participate to achieve their unlawful common purpose.57 The fourth element is that the incidental offence was committed by the principal in the course of pursuing the unlawful common purpose.58 The fifth element is that the defendant intended that the incidental offence that eventuated be committed or knew that the offence was a probable consequence of carrying out the unlawful common purpose, which requires foresight of both the actus reus and mens rea elements of the incidental offence.59 It is necessary to examine the relevant workings of these five elements.
The first element requires that one party to the unlawful common purpose committed the elements of the incidental offence that the defendant alleged to be party to; however, they do not need to have been convicted of that incidental offence.60 Further, sometimes, it is unclear if the alleged principal had the required mens rea for the offence. To mitigate this issue in culpable homicide group violence cases where the deceased was struck multiple times, the Prosecution need not establish which blow caused death.61
The workings of the second and third elements can be examined together due to their close interaction. These elements require evidence of an unlawful common purpose to which the defendant was party.62 This common purpose must be unlawful,63 by involving committing a criminal offence.64 However, these elements do not impose the requirements to identify or link the principal with the defendant definitively,65 or for the defendant to participate in the offence
53 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.24]. 54 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.24]. 55 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.24]. 56 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.24]. 57 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.24]. 58 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.24]. 59 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.24]. 60 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.26]. 61 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.26]. 62 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.25]. 63 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.25].
that was the object of the unlawful common purpose.66 These elements also do not impose the requirement that there be only one shared unlawful common purpose,67 or that the Prosecution has to identify all those involved in the unlawful common purpose.68 These elements also do not require proof that the defendant assisted the principal or that the unlawful common purpose was prearranged, constant or the object of formal consensus.69 Further, if parties act outside the unlawful common purpose’s scope, the third element can still be proved because these parties can still hold the unlawful common purpose.70
The fourth element requires the incidental offence to be committed in the prosecution of the unlawful common purpose but not to effect that unlawful common purpose.71 The prosecution of the unlawful common purpose includes everything a defendant contemplates as a reasonable adjunct from the core of the unlawful common purpose.72 Essentially, prosecuting the unlawful common purpose includes anything that would be ordinarily contemplated as inherent or likely to occur during the prosecution of the unlawful common purpose.73 However, there are a few caveats to this. The first caveat is that a defendant will not be liable under PAL if the principal departs entirely from the unlawful common purpose and acts in a way that no other party to that unlawful common purpose could have predicted.74 The second caveat is that no defendant will be liable under PAL if the principal committed the offence after the achievement of the unlawful common purpose if this achievement meant that the principal committed the incidental offence for an entirely different reason.75 The third caveat is that a defendant may not be liable under PAL if the unlawful common purpose has been frustrated or abandoned.76
The Act replaced the Crimes Act 1908,77 and made the mens rea requirement for PAL entirely subjective,78 because in equivalent to the section in the Crimes Act 1908, the words ‘ought to
66 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.25]. 67 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.24]. 68 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.24]. 69 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.25]. 70 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.25]. 71 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.26]. 72 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.26]. 73 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.26]. 74 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.26]. 75 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.26]. 76 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.26]. 77 Crimes Act 1908.
have been’ appeared before ‘known’.79 This means that the fifth element requires the Prosecution prove that the defendant foresaw a real risk that a probable consequence of prosecuting the unlawful common purpose was a particular incidental offence would be committed by any party to the unlawful common purpose in the prosecution of the unlawful common purpose.80 This foresight requirement includes knowledge that the principal committing the incidental offence had the relevant mens rea for the incidental offence.81 Further, this foresight requirement includes wilful blindness to the commission of the incidental offence,82 but does not require precise knowledge of the details of the incidental offence.83 ‘Probable consequences’ means the defendant knew that the commission of the incidental offence was a substantial or real risk or an event that could well happen, but not that it was more probable than not.84
The Supreme Court in Uhrle accepted the five elements Ahsin identified as required for PAL under the Section in New Zealand.85 The Court in Uhrle also rejected the proposition that PAL under the section in New Zealand did, or could depend on, the same requirements imposed by the United Kingdom’s Supreme Court in the R v Jogee decision because it considered the stipulations of the section prohibited this.86
The mens rea requirement for liability under s 66(1)(b)-(d) is stricter than the one for PAL under the section,87 because the mens rea of intention required for s 66(1)(b)-(d) liability is stricter than the mens rea of foresight required for PAL under the section.88 Accordingly, the issues to be examined in relation to liability under s 66(1)(b)-(d) and PAL under the section are different.89 However, alternative allegations under s 66(1)(b)-(d) and the section are permitted when appropriate.90 However, there is a tendency for PAL under the section to be inappropriately used as a backup option alongside s 66(1)(b)-(d).91
79 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.27]. 80 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.27]. 81 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.27]. 82 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.27]. 83 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.27]. 84 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.27]. 85 Uhrle v R, above n 20, at [5].
86 At [2]-[5].
87 Edmonds v R, above n 3, at [24]-[25].
88 Tolmie, above n 8, at 442.
89 R v Fa’apusa CA300/06, 13 December 2006 at [15].
90 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.24].
The full defence of withdrawal is available to defendants charged under both s 66(1)(b)-(d) and the section.92 In this context, the withdrawal defence's rationale is that it incentivises a defendant to withdraw from the unlawful common purpose, potentially leading to the non- commission of offending.93 The defendant must raise the withdrawal defence,94 and if this is done, for PAL, the Prosecution must prove beyond reasonable doubt that the defendant did not withdraw from involvement in the unlawful common purpose.95 In New Zealand, the withdrawal defence has two requirements.96 First, there must be conduct, either by words or actions, that clearly demonstrates withdrawal from the offending to others.97 Second, the withdrawing party must take reasonable and sufficient steps to undo their previous participation's effects or prevent the offence.98 Further, likely, withdrawal cannot occur after the contemplated offence’s commission commences.99
To ascertain and understand New Zealand’s current law in relation to the Burke manslaughter question, as this dissertation’s analysis requires, it is essential to examine the relevant New Zealand general homicide law, the general workings of New Zealand's homicide law concerning the Burke manslaughter question, and the key New Zealand cases that have grappled with the Burke manslaughter question.
The Act, the Sentencing Act 2002 (the Sentencing Act),100 and case law are the primary sources of New Zealand’s general homicide law.101 The stipulations these sources provide regarding New Zealand’s general homicide law apply to both principal parties and defendants who are secondary parties under PAL. The Act defines homicide as the killing of a human being by another, directly or indirectly, by any means whatsoever.102 This means that the death must
92 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.15]. 93 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.15]. 94 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.15]. 95 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.15]. 96 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.15]. 97 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.15]. 98 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.15]. 99 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.15]. 100 Crimes Act 1961.
101 Sentencing Act 2002.
be attributable to the defendant’s conduct, but it does not need to be the sole cause or the substantial and operative cause of the death.103 This link cannot be established if the defendant's conduct has been exhausted, and the death can be attributed to an intervening cause independent of the defendant,104 like another’s act or a voluntary and informed act by the deceased.105 Further, a link likely cannot be established if the act causing death was not reasonably foreseeable as a real risk.106 The Act s 160 stipulates that homicide can be culpable or non-culpable and that culpable homicide is murder or manslaughter, and non-culpable homicide is not an offence.107 The relevant circumstance to this dissertation that the Act s 160 stipulates is culpable homicide, is killing any person by an unlawful act.108 For culpable homicide by killing by an unlawful act, there is no requirement that the death resulted from the circumstances which made the act unlawful.109 The Act s 167 provides that culpable homicide is murder in four circumstances; two are relevant to this dissertation.110 The first circumstance is if the offender means to cause the death of the person killed.111 The second circumstance is if the offender means to cause the person killed any bodily injury that is known to the offender to be likely to cause death and is reckless whether death ensues or not.112 This second circumstance is commonly referred to as reckless murder.113 The Act s 168 further defines murder.114 The Act s 168 specifies that culpable homicide is murder, whether the offender means death or not or knows death is likely to ensue or not, in three circumstances.115 The relevant circumstance to this dissertation’s analysis is if the offender means to cause grievous bodily harm for the purposes of committing an offence cited in s 168(2), facilitating flight or avoiding detection after the attempted commission or attempted commission of an offence cited in s 168(2), or resisting lawful apprehension in respect of any offence, and death ensues as a result.116 The Act s 168 is unusual because, unlike murder under the Act 167, the mens rea required is an intention to inflict grievous bodily injury to facilitate one of the cited offences,
103 Adams on Criminal Law – Offences and Defences, above n 14, at [CA158.04]. 104 Adams on Criminal Law – Offences and Defences, above n 14, at [CA158.07]. 105 Adams on Criminal Law – Offences and Defences, above n 14, at [CA158.10]. 106 Adams on Criminal Law – Offences and Defences, above n 14, at [CA158.08]. 107 Crimes Act 1961, s 160.
108 Crimes Act 1961, s 160.
109 Adams on Criminal Law – Offences and Defences, above n 14, at [CA158.03].
110 Crimes Act 1961, s 167.
111 Crimes Act 1961, s 167(a).
112 Crimes Act 1961, s 167(b).
113 Adams on Criminal Law – Offences and Defences, above n 14, at [CA167.06].
114 Crimes Act 1961, s 168.
115 Crimes Act 1961, s 168.
116 Crimes Act 1961, s 168.
not an intention to kill or inflict injury with knowledge that death is likely to result.117 The Act s 172 stipulates that subject to the Sentencing Act s 102, murder attracts a liability of life imprisonment.118 The Sentencing Act s 102 stipulates that an offender convicted of murder receives a life imprisonment sentence unless, given the circumstances of the offence and the offender, a sentence of life imprisonment would be manifestly unjust.119 The combined effect of the Act s 172 and the Sentencing Act s 102 is that whilst life imprisonment is not the mandatory sentence for murder, there is a strong presumption of a life imprisonment sentence for murder,120 which carries a ten-year minimum period of imprisonment.121 The Act s 171 stipulates that culpable homicide resulting from an unlawful act not amounting to murder is unlawful act manslaughter.122 A defendant can be found liable of unlawful act manslaughter as a principal or as a secondary party under s 66(1)(b)-(d) or the section.123 An appreciation that death is likely is unnecessary for unlawful act manslaughter liability as a principal.124 The Act s 177 stipulates that unlawful act manslaughter attracts a liability of life imprisonment.125 However, there is no presumption that liability for unlawful act manslaughter will attract a sentence of life imprisonment, and sentences for unlawful act manslaughter vary significantly because of the varying culpability and gravity in unlawful act manslaughter cases.126 In addition to the Act s 171, there are also specific requirements for unlawful act manslaughter liability. The first requirement is that there must be an unlawful act. An act is unlawful if it constitutes a breach of any Act, regulation, rule, or bylaw.127 That unlawful act must also be a criminal offence, and the defendant must act with the relevant mens rea when committing that unlawful act.128 The second requirement is that the unlawful act must also cause the deceased’s death.129 The third requirement is that the unlawful act must be dangerous by being likely to harm another.130 This dangerousness requirement is an objective, reasonable person standard.131 The circumstances will be used to assess if the unlawful act was dangerous, and
117 Edmonds v R, above n 3, at [26].
118 Crimes Act 1961, s 172.
119 Sentencing Act, s 102.
120 Adams on Criminal Law – Offences and Defences, above n 14, at [CA172.01].
121 Sentencing Act, s 103.
122 Crimes Act 1961, s 171.
123 Adams on Criminal Law – Offences and Defences, above n 14, at [CA172.02].
124 Edmonds v R, above n 3, at [27].
125 Crimes Act 1961, s 177.
126 R v Witika [1992] NZCA 496; [1993] 2 NZLR 424 (CA) at 426.
127 A to Z of New Zealand Law, above n 10, at [20.16.5]. 128 A to Z of New Zealand Law, above n 10, at [20.16.5]. 129 A to Z of New Zealand Law, above n 10, at [20.16.5]. 130 A to Z of New Zealand Law, above n 10, at [20.16.5]. 131 A to Z of New Zealand Law, above n 10, at [20.16.5].
the likely harm must be more than trivial but not serious.132 A series of actions that constitute an unlawful act can also meet the dangerousness requirement if they are objectively dangerous as a whole.133 However, for unlawful act manslaughter liability, the unlawful act or actions do not have to be directed at the deceased.134
There are a few key general workings of New Zealand’s general homicide law that are relevant to this dissertation's analysis of the Burke manslaughter question. Firstly, a secondary party can be liable for a lesser offence than the principal party.135 This can happen when two offences share the same actus reus but have different mens rea.136 For example, a principal can be liable for murder, whilst a secondary party is liable for unlawful act manslaughter PAL.137 This means that where the principal who committed the culpable homicide is liable for murder, the possibility that the alleged secondary party might only be liable for unlawful act manslaughter PAL must be considered if the evidence means that is appropriate.138 However, a secondary party likely cannot be liable for murder under PAL (PAL murder) if the principal was liable for manslaughter.139 Secondly, the acquittal of a principal party does not necessarily lead to the acquittal of secondary parties,140 unless acquittal of the principal means the evidence does not establish the commission of the offence charged.141 Thirdly, a defendant will not be liable under PAL for a culpable homicide that was not committed by the principal while prosecuting the unlawful common purpose or if the defendant did not foresee the culpable homicide as a probable consequence of prosecuting the unlawful common purpose.142 Therefore, a defendant's liability under PAL for any form of culpable homicide will depend on proof that the defendant knew that pursuing the common purpose posed a real risk of the kind of consequence needed for the relevant form of culpable homicide.143
132 Adams on Criminal Law – Offences and Defences, above n 14, at [CA160.05].
133 A to Z of New Zealand Law, above n 10, at [20.16.5].
134 A to Z of New Zealand Law, above n 10, at [20.16.5].
135 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.06]. 136 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.06]. 137 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.06]. 138 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.28]. 139 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.06]. 140 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.08]. 141 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.08]. 142 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.28]. 143 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.28].
Several key New Zealand cases have grappled with the Burke manslaughter question. The first case was the 2003 Court of Appeal case of Rapira v R.144 Rapira examined the knowledge required of a defendant for liability for PAL murder and unlawful act manslaughter PAL, where the principal is liable for the Act s 168 murder.145 The Court said a defendant is liable for PAL murder under the Act s 168 if they knew that intentional infliction of grievous bodily injury by another party to the unlawful common purpose was probable.146 In relation to unlawful act manslaughter PAL, the Court found that a defendant will is liable for unlawful act manslaughter PAL if they knew that the infliction of physical harm, constituting an unlawful act that was more than trivial, was a probable consequence of prosecution of the unlawful common purpose and that there is no requirement that death be intended or foreseen.147 The Court stipulated that this was because a principal does not need to foresee a risk of death to be liable for unlawful act manslaughter and that such a foresight requirement would constitute reckless murder under the Act s 167 and nullify the scheme of culpability provided by the distinction between the crimes of PAL murder in the form of reckless murder and unlawful act manslaughter PAL.148
The second case was the 2011 Supreme Court case of Edmonds v R.149 Edmonds involved a stabbing.150 The killer was liable for murder as a principal, and the three other men involved, including Edmonds, were found liable for unlawful act manslaughter PAL.151 At trial, the Prosecution contended that Edmonds and the others had formed the unlawful common purpose of inflicting serious violence on a group of people of whom the deceased was one and that the principal had killed the deceased while prosecuting that unlawful common purpose.152 On appeal to the Supreme Court, the Supreme Court noted that very limited mens rea is required to be established against a principal to justify a conviction for unlawful act manslaughter, and this required mens rea does not extend to an appreciation that death is likely to result.153 The Supreme Court then found that the trial judge had incorrectly proceeded on the basis that Edmonds could only be liable for unlawful act manslaughter PAL if he had recognised that a
144 R v Rapira [2003] NZCA 217; [2003] 3 NZLR 794 (CA).
145 At [20].
146 At [21]-[27].
147 At [31]-[32].
148 At [29].
149 Edmonds v R, above n 3.
150 At [1].
151 At [1]-[2].
152 At [2].
153 At [27].
killing was a probable consequence of the prosecution of the common purpose,154 and suggested this requirement was unnecessary.155
The third case was the Burke case in the Court of Appeal in 2021.156 The Burke case’s facts, relevant appeal ground, and the relevant appeal ground’s outcome have already been examined. Therefore, only a summary of these is required here. However, a more in-depth examination of the reason for the outcome of the relevant appeal issue is required. The Burke case involved a defendant who was found liable for unlawful act manslaughter PAL, after they had joined and participated in a plan to confront a fellow misbehaving gang member, which resulted in the gang member being stabbed to death by another participant in the plan.157 The defendant appealed his conviction.158 The relevant ground of appeal related to the level of foresight required for liability for unlawful act manslaughter PAL.159 The crux of the relevant appeal ground was to what extent a defendant must foresee that a principal would inflict violence upon the deceased and the level of violence they need to foresee to be liable for unlawful act manslaughter PAL.160 The outcome of the relevant appeal ground was that the Court concluded that a defendant would be liable for unlawful act manslaughter PAL if an unlawful act likely to do more than trivial harm to the deceased was known by that defendant to be a probable consequence of the prosecution of the common purpose; and that unlawful act was a substantial and operative cause of death.161 Therefore, the Court found no requirement that a defendant foresaw a risk of death to be liable for unlawful act manslaughter PAL.162 The Court gave its reasons for this outcome to the relevant appeal ground.163 The first reason was that this outcome was consistent with the statutory language because a defendant is liable for the commission of an offence under PAL if that offence was known to be a probable consequence of the prosecution of the unlawful common purpose and where that offence is unlawful act manslaughter, the principal commits unlawful act manslaughter by doing an unlawful act that is likely to do more than trivial harm to the deceased, with that unlawful act being causative of
154 At [53].
155 Kuru v R [2023] NZCA 150 at [75].
156 Burke v R, above n 26.
157 At [1]-[30] and [139].
158 At [2].
159 At [35].
160 At [36].
161 At [66].
the deceased’s death, and there is no requirement that the principal foresaw the risk of the deceased’s death, meaning it makes sense that a defendant can be liable for unlawful act manslaughter PAL without appreciating a risk of the deceased’s death.164 The second reason was that the Court thought this outcome was logical because if liability for unlawful act manslaughter PAL required a defendant to foresee the risk of the deceased’s death, the distinction between PAL murder in the form of reckless murder and unlawful act manslaughter PAL would be nullified.165 This Court said this distinction would be nullified because a defendant who did not foresee the risk of death would be liable for neither PAL murder in the form of reckless murder nor unlawful act manslaughter PAL; however, if a defendant was required to foresee the risk of death resulting from the unlawful common purpose, and they did, they would be liable under for PAL murder in the form of reckless murder and unlawful act manslaughter PAL.166 The third reason was that the outcome was congruent with the approach to a defendant charged with aiding and abetting unlawful act manslaughter under s 66(1)(b)-(d), as in such a case, there is a minimal mens rea requirement, that does not extend to an appreciation the deceased’s death is likely. 167 The Court made this argument as it said there is nothing about the wording of the section compared to the wording of s 66(1)(b)-(d), which indicates that a heightened mens rea is required for the section.168 The fourth reason was that this outcome was consistent with Adams on Criminal Law, a renowned criminal law reference.169 The fifth reason was that the Court said that although the Rapira case concerned the Act s 168, that case was nevertheless valuable as a statement of general principle that PAL should not require an elevated mens rea compared to that of the principal.170 Further, the Court said it is inherent in the offence of unlawful act manslaughter that the defendant has a state of mind falling short of an appreciation that death might result from their actions; therefore, it cannot be correct that a secondary party to unlawful act manslaughter could have as great or a greater appreciation of the risk of the principal offender’s actions than the principal themselves.171 Whilst there was concern this outcome would result in a much lower level of criminality being required to support a conviction for unlawful act manslaughter PAL, the
164 At [59].
165 At [60].
166 At [60].
167 At [61].
168 At [62].
169 At [63].
170 At [64].
171 At [64].
Court justified this by saying that it must not be overlooked that a defendant can only be liable for unlawful act manslaughter PAL where they participate with others in prosecuting an unlawful common purpose, and death is caused as a consequence of prosecuting that purpose.172
The fourth case was the 2023 Court of Appeal case of Kuru v R.173 In Kuru, the defendant appealed their unlawful act manslaughter PAL conviction.174 The relevant ground of appeal concerned the Burke manslaughter question.175 The Court said it examined the issue in the Burke case.176 The Court said it considered the reasoning in Burke to be consistent with the offence of unlawful act manslaughter, and unlawful act manslaughter PAL does not require a defendant to foresee that death is a probable consequence of the prosecution of the common purpose, and requiring a defendant to foresee that death is a probable consequence of the prosecution of the unlawful common purpose for unlawful act manslaughter PAL, would nullify the distinction between liability for PAL murder in the form of reckless murder and unlawful act manslaughter PAL.177 The Court followed the Burke Court of Appeal case in relation to answering the Burke manslaughter question.178 The fifth such case is the undecided Supreme Court appeal of the Court of Appeal’s decision in the Burke case.179 This all shows that the Court of Appeal’s decision in Burke is New Zealand’s current authority on answering the Burke manslaughter question.180
C. The United Kingdom’s Law.
For 500 years, the United Kingdom’s law required proof of intention for mens rea for PAL for the incidental offence.181 The 1985 Chan Wing-Siu v R decision changed that.182 The Chang
172 At [65].
173 Kuru v R, above n 155.
174 At [4]-[5].
175 At [6] and [72].
176 At [76].
177 At [77].
178 At [78].
179 Burke v R, above n 38.
180 Burke v R, above n 26.
181 Cecil and Mehigan, above n 6, at 6-10.
182 Chan Wing-Siu v R [1984] UKPC 27; [1985] 1 AC 168 (PC).
Wing-Siu decision stipulated that a defendant is liable under PAL for any incidental offence committed by the principal in the prosecution of the unlawful common purpose, which is of a type they foresaw but did not necessarily intend,183 because the criminal liability lies in participating in the unlawful common purpose with that foresight.184 The Chan Wing-Siu decision essentially meant foresight was no longer used to assess intention and was the intention.185 A second case in 1999 confirmed the Chan Wing-Siu decision by stipulating that foresight of the principal committing the incidental offence in the prosecution of the unlawful common purpose is sufficient for PAL.186 This second case said that the Chan Wing-Siu decision could result in illogical outcomes, but the practical considerations relating to public policy concerns justified it and outweighed logic considerations.187 Effectively, the Court in this second case admitted unjust outcomes would result from the Chan Wing-Siu decision but said public policy concerns outweighed this.188 The public policy concerns being combatting group crime.189
However, the 2016 Jogee decision made it clear that the Court in the Chan Wing-Siu decision incorrectly interpreted the law, and reversed the Chan Wing-Siu decision.190 The Jogee decision said the Chan Wing-Siu decision was incorrect and unsupported because it was based on incomplete and incorrect readings of previous case law and questionable public policy arguments.191 The Jogee decision gave five reasons why it justified in reversing the Chan Wing- Siu decision.192 The first was that the Court had examined far more cases than the Chan Wing- Siu decision and the case of the appellants Powell, Daniels, and English, which had not examined many important cases.193 The second was the law on PAL, based on the Chan Wing- Siu decision, was controversial, complex, not working satisfactorily, and leading to many appeals.194 The third reason was that as the Courts had made the error with the Chan Wing-Siu decision, it was right for the Court to correct this error, not Parliament.195 The fourth reason
183 Chan Wing-Siu v R, above n 182, at 175.
184 Cecil and Mehigan, above n 6, at 10.
185 Cecil and Mehigan, above n 6, at 11.
186 Cecil and Mehigan, above n 6, at 13.
187 Cecil and Mehigan, above n 6, at 13.
188 Cecil and Mehigan, above n 6, at 13.
189 Cecil and Mehigan, above n 6, at 13.
190 Cecil and Mehigan, above n 6, at 5.
191 Cecil and Mehigan, above n 6, at 17.
192 Cecil and Mehigan, above n 6, at 18.
193 Cecil and Mehigan, above n 6, at 18.
194 Cecil and Mehigan, above n 6, at 18.
195 Cecil and Mehigan, above n 6, at 18.
was the adoption of foresight as the mens rea requirement for PAL murder, resulted in an over- extension of PAL murder and a reduction of unlawful act manslaughter PAL.196 The fifth reason was that the Chan Wing-Siu decision created the anomaly where a secondary party could be found liable under PAL based on a lower threshold than the one that applies to a principal.197 The Jogee decision then set out the actus reus and mens rea requirements for PAL for the incidental offence.198 The Jogee decision said the required actus reus was that the defendant encouraged or assisted the principal to commit the incidental offence.199 The Jogee decision said the act of assistance or encouragement can be infinitely varied, although an association between the defendant and the principal and the presence of the defendant at the scene when the principal perpetrates the incidental offence is likely very relevant evidence to the question of whether the defendant provided assistance or encouragement.200 However, the Jogee decision said neither association nor presence is necessarily proof of assistance or encouragement because it is case-specific.201 The Jogee decision said that once encouragement or assistance is proven to have been given, the Prosecution does not have to prove that it positively affected the conduct of the principal or the outcome.202 The Jogee decision said that the required mens rea for assisting or encouraging is an intention to assist or encourage the commission of the incidental offence, and this requires knowledge of any existing facts necessary for it to be criminal and means if the incidental offence requires a particular intent, the defendant must intend to assist or encourage the principal to act with such intent.203 Essentially, the Jogee decision established the principle of intention as a mens rea requirement for PAL for the incidental offence in PAL cases.204 The Jogee decision said the intention to assist or encourage will often relate to a specific incidental offence, but in other cases, the defendant may intentionally assist or encourage the principal to commit one of a range of incidental offences, and if so, the defendant does not have to know or intend in advance the specific form which the offence will take, for the mens rea requirement to be met.205 The Jogee decision means that foresight returns to the role of evidence of intention in PAL cases.206
196 R v Jogee [2016] UKSC 8 at [83].
197 Cecil and Mehigan, above n 6, at 19.
198 Cecil and Mehigan, above n 6, at 19.
199 Cecil and Mehigan, above n 6, at 19.
200 At [11].
201 At [11].
202 At [12].
203 Cecil and Mehigan, above n 6, at 19.
204 Cecil and Mehigan, above n 6, at 19-20.
205 At [14].
206 Cecil and Mehigan, above n 6, at 20.
To ascertain and understand the workings of the United Kingdom's law concerning the Burke manslaughter question, as is required for this dissertation’s analysis, it is essential to examine the United Kingdom’s relevant general homicide law, the approach taken by the United Kingdom to the Burke manslaughter question and the effects of the approach taken by the United Kingdom to the Burke manslaughter question. This examination will be limited to content relevant to the dissertation's examination of the Burke manslaughter question.
The general homicide law of the United Kingdom, relevant to this dissertation's analysis of the Burke manslaughter question, concerns murder, manslaughter, and unlawful act manslaughter. This relevant general homicide law of the United Kingdom applies to both defendants who are principal parties and defendants who are secondary parties under PAL. Murder in the United Kingdom is an offence contrary to the common law.207 The elements of murder in the United Kingdom are commission by a sane person who is at least ten years old, with no lawful excuse, of an act that is a substantial cause of someone else's death, and the act is done with the intent to kill or cause really serious bodily harm.208 Murder carries a mandatory sentence of life imprisonment.209 In the United Kingdom, all unlawful killings that are not murder are, at common law, manslaughter.210 For unlawful act manslaughter liability, there must be a killing as a result of the defendant's unlawful act, and the unlawful act must be of a nature where all sober and reasonable people would recognise it exposes another person to the risk of some harm, albeit not serious harm.211 Further, the mens rea required is that appropriate to the unlawful act in question, and the harm risked must be physical.212 Unlawful act manslaughter carries a maximum sentence of life imprisonment,213 but sentences vary significantly because of the wildly varying facts of unlawful act manslaughter cases.214
207 Westlaw UK Murder (online ed, Thomson Reuters) at [2].
208 Westlaw UK, above n 207, at [4].
209 Daniel Greenberg Murder and manslaughter (online ed, Thomson Reuters) at [1].
210 Liam Walker Manslaughter (online ed, Thomson Reuters) at [1].
211 Walker, above n 210, at [30].
212 Walker, above n 210, at [30].
213 Walker, above n 210, at [31].
214 Walker, above n 210, at [32].
The Jogee decision means a defendant is liable under PAL for murder if they intend to encourage or assist the principal to commit murder and intend that the principal has the mens rea for murder. The Jogee decision does not mean that a defendant who lacks intent for murder for a death arising out of the prosecution of an unlawful common purpose avoids criminal liability because if they engage in a violent offence ending in death, they can still be liable under PAL for unlawful act manslaughter, even though they did not intend to cause serious harm or death.215 The same is the case if the defendant participates by encouragement or assistance in any other unlawful act which all sober and reasonable people would realise carried the risk of some harm and death, in fact, results.216 The Jogee decision also said that where the incidental offence charged does not require mens rea, like unlawful act manslaughter, the only mens rea required for a defendant to be liable under PAL is that they intended to encourage or assist the principal to do the unlawful act, with knowledge of any facts and circumstances necessary for it to be an unlawful act.217 However, if the death is caused by some overwhelming supervening act by the principal, which nobody in the defendant’s position could have contemplated and relegates the defendant’s acts to history, the defendant will bear no liability for the death.218
D. Conclusion.
The legal systems of the United Kingdom and New Zealand clearly currently take very different approaches to PAL and answering the Burke manslaughter question.
Chapter Two.
A. Introduction.
This chapter will examine the discussions concerning New Zealand’s current law on PAL and how New Zealand’s law could and should answer the Burke manslaughter question.
215 Cecil and Mehigan, above n 6, at 21.
216 R v Jogee, above n 196, at [96].
217 At [99].
218 R v Jogee, above n 196, at [97].
B. The Merits of New Zealand’s Current Law on PAL.
New Zealand’s current law on PAL is controversial because some arguments support New Zealand’s law current law on PAL, and some arguments do not. This section will examine these arguments. It is essential to note that some of these arguments have not been directed at New Zealand’s current law on PAL; however, these arguments are still applicable to New Zealand's current law on PAL because they were directed at other jurisdictions’ laws on PAL, when these jurisdictions’ laws on PAL operated in functionally the same way as New Zealand’s current law on PAL.
Seven key arguments support New Zealand’s current law on PAL. The first argument is that concerns of PAL resulting in over-criminalisation are mitigated for three reasons.219 The first reason being only defendants who have joined the unlawful common purpose can be liable under PAL for any incidental offence.220 The second reason being that two features of the application of the section provide protection from the risk of over-criminalisation resulting from PAL.221 The first feature being that the withdrawal defence provides a safety valve for defendants to escape PAL, protecting them from over-criminalisation. The second feature being three caveats to the application of PAL under the section, which prevent the danger of over- criminalisation by allowing secondary parties to escape PAL, where it would be unfair to hold them liable..222 The first caveat is that a defendant cannot be liable under PAL if the principal departs entirely from the unlawful common purpose and acts in a way that no other party to that unlawful common purpose could have predicted.223 The second caveat is that no defendant will be liable under PAL if the principal committed the offence after achieving the unlawful common purpose for a completely different motive or purpose.224 The third caveat is that a defendant may not be liable under PAL if the unlawful common purpose has been frustrated or abandoned.225 The third reason being that although PAL carries a risk of creating a mismatch
219 “Reconsidering common purpose liability”, above n 21, at 126.
220 Tolmie, above n 8, at 442.
221 “Reconsidering common purpose liability”, above n 21, at 126.
222 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.26]. 223 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.26]. 224 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.26]. 225 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.26].
between a defendant’s criminal liability and their moral culpability,226 this mismatch can be addressed at sentencing.227
The second argument is that PAL increases the flexibility and the application of New Zealand's secondary liability law because PAL means New Zealand's secondary liability law applies where, without PAL,228 it would not.229
The third argument is that PAL is useful for combatting group crime, like the type perpetrated by gangs.230 Group crime is a serious problem as group membership often encourages and escalates criminal offending.231 It is argued that PAL combats group crime in two ways. The first way is that PAL provides a deterrent to group crime because it holds offenders liable for crimes committed by the group, which means they are less likely to join a group with the idea of offending.232 The second way is that PAL makes prosecuting group crime easier.233 This is because PAL does not require proof of causation,234 and therefore requires minimal evidence.235 An example of this is where group violence results in a culpable homicide.236 This is because in group violence culpable homicide cases like this, it is not always easy to prove who carried out the killing, meaning without PAL everyone involved could escape liability for the death; however, PAL means that the Prosecution can hold everyone liable for PAL murder or unlawful act manslaughter PAL for the death.237
The fourth argument is that PAL is a valuable tool for securing guilty pleas from secondary parties and testimony from secondary parties against principal parties,238 and therefore
226 Tolmie, above n 8, at 443.
227 Hill, above n 2, at 176.
228 Edward Grigg “Joint Enterprise Liability: Recent Developments and Judicial Responses” (2019) 83(2) The Journal of Criminal Law 128 at 130.
229 Julia Tolmie and Kris Gledhill “Common Purpose and Conspiracy Liability in New Zealand: Criminality by Association?” (2016) 34(2) Law in Context 58 at 75-76.
230 Henrique Carvalho “Dangerous Patterns: Joint Enterprise and the Culture of Criminal Law” (2022) 32(3) Social & Legal Studies 335 at 350.
231 Tolmie, above n 8, at 169.
232 Crimes Act 1961, s 66(2).
233 Beatrice Krebs “Mens Rea in Joint Enterprise: A Role for Endorsement?” (2015) 74(3) CLR 480 at 498-499.
234 Tolmie and Gledhill, above n 229, at 65.
235 Matthew Dyson “The Future of Joint-up Thinking: Living in a Post-accessory Liability World” (2015) 79(3) The Journal of Criminal Law 181 at 187.
236 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 498.
237 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 498-499.
238 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 500.
increasing the efficiency of the justice system and saving its resources. It is said that PAL helps secure guilty pleas from secondary parties because of the possibility that they could be convicted of a greater offence under PAL.239 For example, a defendant may plead guilty to unlawful act manslaughter PAL to avoid the chance of a conviction for PAL murder.240 PAL can help secure testimony from secondary parties against the principal, as the risk of PAL incentivises secondary parties to give testimony against the principal to mitigate or avoid this risk.241
The fifth argument is that PAL simplifies sentencing,242 because it treats all liable parties equally at sentencing.243
Nine key arguments do not support New Zealand’s current law on PAL. The first argument is that PAL carries a risk of resulting in over-criminalisation,244 through its risk of creating a mismatch between a defendant’s criminal liability and moral culpability.245 There are a few reasons contended for why PAL carries this risk of over-criminalisation. The first reason is that the mens rea standard of foresight required for PAL is a very low liability standard, significantly widening the reach of PAL. 246 This is because PAL does not require the Prosecution to prove a connection between the defendant’s conduct and the incidental offence.247 This is illustrated by the fact that PAL is sometimes easier to prove than the liability of the principal is.248 The second reason is that because New Zealand’s Courts have been vague about the requirements for PAL, PAL can be wide-reaching with few hard limits.249 The third reason is that while a defendant may foresee a principal committing an incidental offence and not accept it, defendants often have no control over the offending of the principal.250 The fourth reason is that criminal offending often does not unfold as expected by those involved.251 The fifth reason
239 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 500. 240 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 500. 241 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 500. 242 Dyson, above n 235, at 187.
243 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.01].
244 Hill, above n 2, at 187.
245 Tolmie, above n 8, at 443.
246 Grigg, above n 228, at 132.
247 James Grant “Common Purpose: Thebus, Marikana and Unnecessary Evil” (2014) 30(1) SAJHR 1 at 15.
248 Perova, above n 22, at 771.
249 Tolmie and Gledhill, above n 229, at 65.
250 Beatrice Krebs “Joint Criminal Enterprise” (2010) 73(4) Modern Law Review 578 at 593-594.
251 Beatrice Krebs “Overwhelming Supervening Acts, Fundamental Differences, and Back Again?” (2022) 86(6) The Journal of Criminal Law 420 at 421.
is that PAL requires little evidence.252 The sixth reason is that PAL does not require the Prosecution to prove the secondary party's commitment to the incidental offence, just their foresight of its possibility.253 The seventh reason is that PAL treats all offenders as equally liable, regardless of the circumstances of the case and each offender's actions,254 meaning that offenders on the periphery of the incidental offending are equally as liable as the principal.255 The eighth reason is that juries appear likely to deduce secondary party membership of an unlawful common purpose and, therefore, PAL from minimal evidence.256 The ninth reason is that PAL may result in defendants with little or no moral culpability being found liable simply because they did not recognise the danger of PAL and take steps to avoid it.257 The tenth reason relates to the concerns about the effect of PAL on domestic abuse victims.258 These concerns exist because PAL allows people to be liable for incidental offences committed by their intimate partner,259 and domestic abuse by intimate partners can be a key reason that people participate in unlawful common purposes and feel unable to withdraw from these unlawful common purposes.260 New Zealand’s law fails to mitigate these concerns, which means that PAL can have an unjust effect on domestic abuse victims,261 and contribute to the victimisation of domestic abuse victims.262 New Zealand’s law fails to mitigate these concerns because the full defence of compulsion is narrow,263 and does not apply to all criminal offences.264 An illustration of the risk of over-criminalisation PAL carries is that PAL under the section can be used to avoid harder prosecutions under s 66(1)(b)-(d), and therefore undermine s 66(1)(b)- (d),265 by being charged in the alternative, or as a backup option.266 This is because liability for
252 Dyson, above n 235, at 187.
253 Tolmie, above n 8, at 443.
254 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.01].
255 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 486-487.
256 Dyson, above n 235, at 187.
257 Tolmie and Gledhill, above n 229, at 77-78.
258 Susie Hulley “Defending ‘Co-offending’ Women: Recognising Domestic Abuse and Coercive Control in ‘Joint Enterprise’ Cases Involving Women and their Intimate Partners” (2021) 60(4) The Howard Journal of Crime and Justice 580 at 584.
259 Hulley, above n 258, at 584.
260 Hulley, above n 258, at 581.
261 Tolmie, above n 8, at 468-469.
262 Hulley, above n 258, at 600.
263 Adams on Criminal Law – Offences and Defences, above n 14, at [CA24.03].
264 Crimes Act 1961, s 24.
265 Krebs, “Joint Criminal Enterprise”, above n 250, at 588.
266 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.24].
PAL under the section only requires foresight,267 whilst liability under s 66(1)(b)-(d) requires intention,268 which is a stricter mens rea requirement.269
The second argument is that PAL breaches fundamental principles of criminal law, which results in breaches of individual rights and injustice.270 The first fundamental principle of criminal law PAL breaches is causation, as PAL imparts liability for crimes defendants did not commit.271 This principle is breached as for PAL; the Prosecution does not have to prove a link between the defendant’s conduct and the incidental offence.272 The second fundamental principle of criminal law PAL breaches is the principle of fair labelling.273 The fair labelling principle dictates that different crime labels should distinguish the type of criminal wrongdoing committed and the degree of criminal wrongdoing.274 PAL breaches this principle by treating all parties equally. For example, PAL labels a defendant in a robbery where the principal committed a murder as a murderer or a manslaughterer.275 The third fundamental principle of criminal law PAL breaches is the principle of proportionate punishment.276 This principle dictates that the severity of the punishment for criminal offending should be proportionate to the seriousness of the criminal offending by the defendant, and disproportionate punishment is unjust and unfair.277 PAL breaches the principle of proportionate punishment because it risks creating a mismatch between a defendant's moral culpability and criminal liability.278 This problem can only sometimes be addressed at sentencing because, for example, in the case of a PAL murder conviction, there is a strong presumption of a sentence of life imprisonment.279 Reinforcing the seriousness of these breaches of fundamental criminal law principles is the fact that it is recognised that clear statutory language is needed to breach fundamental principles of criminal law.280
267 Crimes Act 1961, s 66(2).
268 Edmonds v R, above n 3, at [22].
269 Tolmie, above n 8, at 442.
270 Krebs, “Joint Criminal Enterprise”, above n 250, at 602.
271 Antonio Cassese “The Proper Limits of Individual Responsibility under the Doctrine of Joint Criminal Enterprise” (2007) 5(1) JICJ 109 at 117.
272 Grant, above n 247, at 15.
273 Victoria Bo Wang “A Normative Case for Abolishing the Doctrine of Extended Joint Criminal Enterprise (2019) 83(2) The Journal of Criminal Law 144 at 154.
274 Wang, above n 273 at 157.
275 Wang, above n 273 at 157.
276 Wang, above n 273 at 153.
277 Wang, above n 273 at 157.
278 Tolmie, above n 8, at 464.
279 Adams on Criminal Law – Offences and Defences, above n 14, at [CA172.01].
280 Gledhill, above n 25, at 409.
The third argument is that PAL is potentially discriminatory and discriminatory.281 An example showing that PAL is potentially discriminatory and discriminatory, is that young black men have been disproportionately held liable under PAL in the United Kingdom.282 A risk that academia has recognised in relation to Māori in New Zealand.283
The third argument is relevant to the fourth argument, which argues the potential misuse of PAL by authorities is a concern. The South African example of the Marikana miners shows why this is a concern. At the time of the example, the operation of South Africa's law on PAL was,284 and still is functionally the same as New Zealand’s current law on PAL.285 In the example, 34 miners were killed by the Police without warning after trying to escape after being trapped during an assembly.286 The South African authorities charged another 270 miners involved with PAL murder.287 This brought the criticism that PAL was an outdated apartheid- era law, and the charges had no chance of success; therefore, they must motivated by nefarious purposes.288 Whilst the charges were withdrawn,289 they could likely have succeeded against any miners with an unlawful common purpose to attack the Police.290 Further, the Marikana miners' example shows that PAL carries implications for the use of force by the Police because it shows PAL gives rise to a fiction that entitles the Police to use lethal force against someone who is unarmed and not attacking anyone.291 This is because it allows for the fiction that, even if only one person in a group is actually attacking a victim, where there is a common unlawful purpose, everyone is deemed to be attacking the victim.292 For example, PAL means that if all 270 Marikana miners had an unlawful common purpose to attack the Police, but only one shot at the Police, the Police may respond against every miner as if each fired upon them.293 Therefore, the Marikana miners' example shows this concern as it shows the ease with which
281 Tolmie, above n 8, at 468.
282 “Reconsidering common purpose liability”, above n 21, at 126.
283 “Reconsidering common purpose liability”, above n 21, at 126.
284 Shannon Hoctor “A New Category of Common Purpose Liability?” (2016) 37(3) Obiter 666 at 666.
285 S v Tsotetsi A153/18, 13 September 2019 at [20]).
286 Judith Hayem “Marikana: Analysing Miners’ Subjectivity and the Crisis of Representation” (2016) 51(2) JAAS 171 at 172.
287 Grant, above n 247, at 1.
288 Grant, above n 247, at 1-2.
289 Grant, above n 247, at 11.
290 Grant, above n 247, at 9.
291 Grant, above n 247, at 11-12.
292 Grant, above n 247, at 11.
293 Grant, above n 247, at 12.
authorities could misuse PAL to persecute minorities and other people and groups deemed undesirable.
The fifth argument rebuts the argument that PAL has utility in combatting group crime by arguing that PAL does not do this, and does more harm than good when it is used to combat group crime.294 This argument provides two reasons for this rebuttal. The first reason is that PAL simply does not work in combatting group crime, particularly in relation to providing a deterrence to group crime.295 PAL is particularly ineffective in deterring group crime because secondary parties often have no control over the principal's choice to commit the incidental offence and because publicly available information PAL is limited and patchy.296 The second reason is that because the image of gangs has become a folk devil in recent decades, and been constructed in a racialised and discriminatory manner, in combatting gang crime, PAL results in discrimination and persecution.297
The sixth argument is PAL is difficult to apply in practice. This difficulty led to the United Kingdom’s Jogee decision differentiating the United Kingdom’s law from New Zealand’s current law on PAL.298 One example of the applicational difficulties of PAL is that it requires difficult and complex jury directions.299
The seventh argument is that PAL limits two rights from the New Zealand Bill of Rights Act 1990 (BORA).300 The first right limited by PAL is freedom of association.301 This right is limited because PAL imparts liability because of association.302 The second right limited by PAL is freedom of thought.303 This right is limited by the foresight mens rea requirement of PAL because this mens rea requirement essentially means that PAL imparts liability for thoughts.304
294 Carvalho, above n 230, at 350.
295 Wang, above n 273 at 153.
296 Wang, above n 273 at 153.
297 Carvalho, above n 230, at 345-346.
298 Cecil and Mehigan, above n 6, at 18.
299 Hill, above n 2, at 187.
300 New Zealand Bill of Rights Act 1990. 301 New Zealand Bill of Rights Act, s 17. 302 R v Jogee, above n 196, at [77].
303 New Zealand Bill of Rights Act, s 13.
304 Crimes Act 1961, s 66(2).
The eighth argument is that PAL has the potential to and does create injustices in relation to bail. This is because the relevant New Zealand legislation concerning bail, the Bail Act 2000 (the Bail Act), provides that defendants are not bailable as of right and may be declined bail and remanded into prison if they have been charged with specified serious offences or offences that carry a potential sentence of imprisonment of three years or more, or if they have previously been convicted of an imprisonable offence or an offence specified by the Bail Act.305 Which means that PAL has the potential to, and does, create injustices in relation to bail in three scenarios. The first is if a defendant is charged under PAL and remanded into prison after being refused bail but acquitted at trial, due to PAL resulting in over-criminalisation. This scenario equals an injustice as it means the defendant has spent time in prison on remand for nothing, and this injustice cannot be rectified at sentencing because if the defendant is acquitted, they will not receive a sentence and will, therefore, have no need for time-served credit. The second scenario is if a defendant is charged under PAL for one offence and is remanded into prison after having bail declined but is found liable under PAL for a lesser offence at trial because the defendant was overcharged because of over-criminalisation resulting from the application of PAL. This scenario will create an injustice if the defendant’s time on remand equals a greater sentence than the sentence they would have or will receive for the offence they were convicted of. The third scenario is if a defendant is not bailable as of right and is subsequently denied bail and remanded into prison based on a conviction sustained because of the application of PAL, resulting in unjust over-criminalisation. This scenario can and does create injustice in three ways. The first way is that it could mean that unjust over- criminalisation resulting from PAL affects people for the rest of their lives. The second way is if the defendant is acquitted at trial due to PAL resulting in over-criminalisation. This is an injustice because this means the defendant has spent time in prison on remand for nothing, and this injustice cannot be rectified at sentencing because if the defendant is acquitted, they will not receive a sentence and will, therefore, have no need for time-served credit. The third way is if the defendant is convicted at trial of a lesser offence than the one, they were charged with because the application of PAL resulted in over-criminalisation, and the defendant’s time on remand equals a greater sentence than the sentence they would have or will receive for the offence they were convicted of.
305 Bail Act 2000.
The ninth argument is that PAL risks defeating the culpability scheme provided by the distinction between PAL murder in the form of reckless murder and unlawful act manslaughter PAL.306 This risk exists because a defendant who did not foresee the risk of death from pursuing the unlawful common purpose would be liable for neither PAL murder in the form of reckless murder nor unlawful act manslaughter PAL; however, if they foresaw the risk of death resulting from the pursuit of the unlawful common purpose, they would be liable for both PAL murder in the form of reckless murder and unlawful act manslaughter PAL.307
C. Answering the Burke Manslaughter Question.
This section will examine arguments concerning how New Zealand’s law could and should answer the Burke manslaughter question. This examination is premised on the assumption that there are two plausible answers to what the correct standard for a defendant to be liable for unlawful act manslaughter PAL is, and therefore, there are possible two plausible answers to the Burke manslaughter question. The first plausible answer is that the defendant foresaw an unlawful act likely to do more than trivial harm to the deceased was a probable consequence of pursuing the common purpose, and that unlawful act was a substantial and operative cause of the deceased’s death, and the second plausible answer is the defendant must foresee the death of the deceased as a result of pursuing the unlawful common purpose.308 The assumption of there being two plausible answers to the Burke manslaughter question is done for simplicity and is possible because the Court of Appeal’s decisions in Burke and Kuru suggest,309 that these are the two plausible answers to the Burke manslaughter question,310 and because the Uhrle case rejected the approach to the Burke manslaughter question taken in the United Kingdom in the after the Jogee decision.311 This section will, therefore, examine the arguments supporting each possible plausible answers to the Burke manslaughter question.
Eight arguments support adopting the first plausible answer to the Burke manslaughter question. The first argument is that this plausible answer corresponds with the requirements to
306 R v Rapira, above n 144, at [29.
307 Burke v R, above n 26, at [60].
308 Burke v R, above n 26, at [66].
309 Burke v R, above n 26.
310 Kuru v R, above n 155.
311 Uhrle v R, above n 20, at [5]-[7].
find a principal liable for unlawful act manslaughter.312 This argument contends that this correspondence is appropriate because New Zealand’s Courts have recognised the general principle that PAL should not require an elevated level of mens rea compared to what is required for the principal to be liable.313 Which would be the case if the second plausible answer to the Burke manslaughter question was adopted.314
The second argument is that this plausible answer to the Burke manslaughter question is consistent with the statutory language because a defendant is liable under PAL if the incidental offence was known to be a probable consequence of the prosecution of the unlawful common purpose,315 and where the incidental offence is unlawful act manslaughter, the principal offender commits the offence by doing an unlawful act that is likely to do more than trivial harm to the victim, with that unlawful act being causative of death, and there is no requirement that the principal offender foresees the risk of death.316
The third argument is that this plausible answer to the Burke manslaughter question is consistent with the approach to mens rea taken for liability under s 66(1)(b)-(d),317 and nothing about the wording of the section compared to that of s 66(1)(b)-(d) indicates a higher mens rea requirement.318
The fourth argument is that this plausible answer to the Burke manslaughter question is appropriate because the section and s 66(1)(b)-(d) are phrased by reference to the particular offence committed by the principal, so they should be applied consistently with the elements of that offence.319
The fifth argument is that this first plausible answer to the Burke manslaughter question removes the risk of defeating the scheme of culpability provided by the distinction between PAL murder in the form of reckless murder and unlawful act manslaughter.320 This risk would
312 A to Z of New Zealand Law, above n 10, at [20.16.5].
313 Burke v R, above n 26, at [64].
314 R v Rapira, above n 144, at [30].
315 Crimes Act 1961, s 66(2).
316 Burke v R, above n 26, at [59].
317 Burke v R, above n 26, at [61].
318 Burke v R, above n 26, at [62].
319 Burke v R, above n 26, at [62].
320 R v Rapira, above n 144, at [29].
eventuate if the second plausible answer to the Burke manslaughter question was adopted because if foresight of death were required for unlawful act manslaughter PAL, the distinction between PAL murder in the form of reckless murder and unlawful act manslaughter PAL would be nullified.321 This is because a defendant who did not foresee the risk of death from pursuing the unlawful common purpose would be liable for neither PAL murder in the form of reckless murder nor unlawful act manslaughter PAL; however, if a defendant foresaw the risk of death resulting from the pursuit of the unlawful common purpose, they would be liable for both PAL murder in the form of reckless murder and unlawful act manslaughter PAL.322
The sixth argument is that this plausible answer to the Burke manslaughter question does not require an unacceptable low level of criminality or moral culpability for unlawful act manslaughter PAL because it means liability for unlawful act manslaughter PAL still requires a defendant to participate with others in prosecuting an unlawful common purpose, where death results from prosecuting that unlawful common purpose.323
The seventh argument is that this plausible answer to the Burke manslaughter question allows sentencing to better account for a defendant's moral culpability. This is because adopting this plausible answer would mean that defendants are more likely to be convicted of unlawful act manslaughter PAL, not PAL murder in the form of reckless murder because it entails less strict liability requirements, and unlawful act manslaughter PAL has great sentencing flexibility,324 whilst PAL murder in the form of reckless murder carries a presumption of a sentence of life imprisonment.325
The eighth argument is that this plausible answer incorporates a knowledge of weapon requirement, as a defendant's knowledge or lack of knowledge of a weapon could be used to assess a defendant’s liability for unlawful act manslaughter PAL.
One key argument supports adopting the second plausible answer to the Burke manslaughter question. The argument is that adopting the first plausible answer to the Burke manslaughter
321 Burke v R, above n 26, at [60].
322 Burke v R, above n 26, at [60].
323 Burke v R, above n 26, at [65].
324 R v Witika, above n 126, at 426.
325 Adams on Criminal Law – Offences and Defences, above n 14, at [CA172.01].
question would mean an unacceptably low level of criminality and moral culpability would be required to convict a defendant for unlawful act manslaughter PAL.326 However, this argument can be rebutted by the argument that adopting the first plausible answer to the Burke manslaughter question means a defendant can only be liable for unlawful act manslaughter PAL if they participate with others in prosecuting an unlawful common purpose, where death results from pursuing the unlawful common purpose.327
D. Conclusion.
This chapter’s analysis illustrates that the cons of New Zealand's current law on PAL outweigh the pros, and that there is overwhelming support for adopting the first plausible answer to the Burke manslaughter question.
Chapter Three.
A. Introduction.
This chapter will examine and conclude on this dissertation’s two key issues. Namely, what the future of PAL in New Zealand's law should be and how New Zealand’s law should answer the Burke manslaughter question. This chapter will conclude on these two key issues in the form of a recommendation in relation to each key issue after examining the discussions concerning what the future of PAL in New Zealand’s law could and should be and how New Zealand's law should answer the Burke manslaughter question. This chapter will also discuss and determine if the recommendation in relation to either of this dissertation’s key issues could be implemented into New Zealand's law on PAL and if the recommendation in relation to either of this dissertation’s key issues will be implemented into New Zealand's law on PAL.
B. The Future of New Zealand’s Law on PAL.
The cons of New Zealand’s current law on PAL outweigh the pros. Therefore, examining the alternatives to New Zealand’s current law on PAL is appropriate and necessary to determine
326 Burke v R, above n 26, at [65].
327 Burke v R, above n 26, at [65].
what the future of New Zealand’s law on PAL could be. This examination will allow the resolution of this dissertation’s first issue of what the future of New Zealand's law on PAL should be in the form of a recommendation. Some of the material in this examination was not directed at, but still applies to, New Zealand’s law on PAL.
The relevant academia indicates that there are two key alternatives to New Zealand’s current law on PAL. The first key alternative is that New Zealand takes the same approach as the United Kingdom did in the Jogee decision.328 Adopting this alternative would mean that the actus reus requirement for PAL for the incidental offence in New Zealand would require that the defendant encouraged or assisted the commission of the incidental offence by the principal.329 Further, adopting this alternative would mean that the mens rea requirement for PAL for the incidental offence in New Zealand would require that the defendant intended to encourage or assist the commission of the incidental offence by the principal.330 This would require knowledge of any existing facts necessary for it to be criminal, meaning if the incidental offence requires a particular intent, the defendant must intend to assist or encourage the principal to act with such intent.331 Adopting this alternative would mean that PAL for the incidental offence under the section would have the same requirements for liability as s 66(1)(b)-(d).332
Several pros can be argued in relation to adopting this first key alternative. The first is it would reduce the risk of over-criminalisation currently posed by New Zealand’s law on PAL and its mens rea requirement of foresight,333 because its mens rea requirement of intention is a stricter mens rea requirement.334 Which in turn would respect the fundamental criminal law principle of proportionate punishment.335 The second is it would respect the fundamental criminal law principle of causation because it would mean that defendants would only be liable for offences they committed.336 This would also mean the fundamental criminal law principle of fair labelling would be respected, as defendants would only be labelled with offences they
328 Gledhill, above n 25, at 406.
329 Cecil and Mehigan, above n 6, at 19.
330 Cecil and Mehigan, above n 6, at 19.
331 Cecil and Mehigan, above n 6, at 19.
332 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.18].
333 Hill, above n 2, at 187.
334 Edmonds v R, above n 3, at [24]-[25].
335 Tolmie, above n 8, at 443.
336 Cassese, above n 271, at 117.
committed,337 and respect the fact that there is often no difference between an intention to commit an offence and an intention to assist someone to commit an offence.338 The third is as it would retain PAL,339 it would simplify sentencing because PAL treats all parties as equally liable.340 The fourth is it would incorporate a knowledge of weapon requirement because a defendant's knowledge or lack of knowledge of a weapon could contribute to whether they had its required mens rea of intention for PAL.341 The fifth is it would mean that PAL was less likely to be misused by authorities, as its stricter mens rea for PAL,342 would make it harder to justify using PAL unjustly or for ulterior motives.343 The sixth is it would make New Zealand’s law more proportionate, just,344 and fair.345 This is because it would exclude cases from the reach of PAL where the defendant foresaw the risk of the incidental offence being committed by the principal but did not want that incidental offence to be committed and felt pressure to continue in the prosecution of the unlawful common purpose.346 For example, domestic abuse victims can be and are unjustly affected by PAL with a foresight mens rea requirement.347 This pro is particularly relevant in New Zealand, where the full defence of compulsion is narrow,348 and does not apply to all criminal offences.349 The seventh is its stricter mens rea requirement for PAL would mean PAL would result in less injustices in relation to bail.350 The eighth is it would remove the current risk of PAL defeating the scheme of culpability provided by the distinction between PAL murder in the form of reckless murder and unlawful act manslaughter PAL.351 This is because its mens rea intention requirement for PAL would clarify the distinction between the two offences.352 The ninth is its mens rea requirement would correct the current anomaly that a secondary party is subject to a lower mens rea requirement for PAL than a
337 Wang, above n 273 at 153.
338 Perova, above n 22, at 771.
339 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 490.
340 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.01].
341 Hill, above n 2, at 167.
342 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 484. 343 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 498. 344 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 497. 345 Grigg, above n 228, at 133.
346 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 497.
347 Hulley, above n 258, at 584.
348 Adams on Criminal Law – Offences and Defences, above n 14, at [CA24.03].
349 Crimes Act 1961, s 24.
350 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 498.
351 R v Rapira, above n 144, at [29].
352 Cecil and Mehigan, above n 6, at 19.
principal party because of the men rea requirement of foresight for PAL.353 The tenth is it would preserve the withdrawal defence.
Several cons can be argued in relation to adopting this first key alternative.354 The first is it would let some defendants who should be and are currently liable under PAL go free,355 because of its stricter mens rea requirement of intention.356 The second is its mens rea requirement of intention may set the hurdle for PAL too high, meaning that PAL was impossible to prove in practice.357 These first and second cons would mean that the utility of PAL would be lost, particularly in relation to combatting group crime.358 The third is it would deprive prosecutors of a vital bargaining chip for securing guilty pleas and testimony from secondary parties against principal parties because the requirements for PAL would be stricter.359 The fourth is it would reduce the flexibility and effectiveness of New Zealand’s law of secondary liability, as it would mean there was only one avenue to hold a defendant liable under s 66,360 because it would mean PAL under the section for the incidental offence would depend on the same requirements as liability under s 66(1)(b)-d) does.361 The fifth is it would make jury instructions more difficult and complex. The sixth is that because the Jogee decision sought to maintain the utility of PAL in combatting group crime, the approach of the Jogee decision and this alterntive to PAL is potentially discriminatory and discriminatory, because PAL by its very nature is discriminatory.362 The seventh is that there is criticism that the Jogee decision from where this alternative originates, has not made the United Kingdom’s law more proportionate, fair, or just.363 With evidence the Jogee decision has not impacted the number of people prosecuted and convicted under PAL in the United Kingdom.364
The second key alternative is that New Zealand adopts an endorsement-based approach to its law on PAL.365 This approach would involve the mens rea for PAL being changed to include
353 R v Jogee, above n 196, at [84].
354 Grigg, above n 228, at 130.
355 Grigg, above n 228, at 131.
356 Tolmie, above n 8, at 442.
357 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 498.
358 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 498.
359 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 500-501.
360 Cecil and Mehigan, above n 6, at 19.
361 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.18].
362 Carvalho, above n 230, at 349-350.
363 Carvalho, above n 230, at 351.
364 Carvalho, above n 230, at 336-337.
365 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 480.
an endorsement requirement in addition to a foresight requirement.366 This would mean two things. The first is that PAL would depend on the defendant foreseeing the incidental offence as a result of pursuing the unlawful common purpose and endorsing that incidental offence.367 The second is the Prosecution would have to prove beyond reasonable doubt that that the defendant acted with the particular mindset of endorsement,368 in addition to having participated in the unlawful common purpose with foresight of the risk of the commission of the incidental offence.369 Such endorsement could include approval falling short of encouragement or other evidence indicating endorsement.370 The rationale for an endorsement- based approach to PAL is that the defendant's accepting mindset of the incidental offence, not their foresight of the possibility of the incidental offence, attracts moral culpability and should, therefore, attract criminal liability.371
Several pros can be argued in relation to adopting this second key alternative.372 The first is it would bring the means rea requirement for PAL closer to one of intention, like was adopted in the Jogee decision, alleviating the concerns that the current PAL mens rea requirement of foresight leads to over-criminalisation by setting the bar for liability too low,373 and the first alternative’s PAL mens rea requirement of intention may set the bar for PAL too high.374 The second is its mens rea endorsement requirement would provide a stronger link between the defendant’s conduct and the incidental offence of the principal, meaning it would explain why a defendant is held liable under PAL, which PAL based on a mens rea requirement of foresight does not do, because it only makes defendants liable for offences they commit.375 This means this second alternative would better respect the fundamental criminal law principle of causation,376 then the current PAL mens rea requirement of foresight does.377 The third is it would better respect the fundamental criminal law principles of proportionate punishment and
366 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 490. 367 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 490. 368 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 496. 369 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 485.
370 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 484-485.
371 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 484. 372 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 495. 373 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 484. 374 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 498. 375 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 496. 376 Cassese, above n 271, at 117.
377 Tolmie and Gledhill, above n 229, at 65.
fair labelling,378 because it would reduce the risk PAL resulting in over-criminalisation,379 by better respecting fundamental criminal law principle of causation.380 The fourth is it would preserve the flexibility and effectiveness of New Zealand’s law on secondary liability,381 because it would preserve the two avenues for imparting secondary liability for incidental offences under s 66.382 The fifth is as it would retain PAL,383 it would simplify sentencing because PAL treats all parties as equally liable.384 The sixth is it would incorporate a knowledge of weapon requirement, because knowledge of a weapon or lack of knowledge of a weapon could contribute to if its mens rea standard of foresight and endorsement is met.385 The seventh is it would mean that PAL was less likely to be misused by authorities, as its mens rea requirement for PAL,386 would mean it would be harder to justify using PAL unjustly or for ulterior motives.387 The eighth is it would make PAL more proportionate and just.388 This is because it would exclude cases from the reach of PAL where the defendant foresaw the risk of the incidental offence being committed by the principal but did not want that incidental offence to happen and felt pressure to continue in the persecution of the unlawful common purpose.389 For example, domestic abuse victims can be and are unjustly affected by PAL with a foresight mens rea requirement.390 This pro is particularly relevant in New Zealand, where the full defence of compulsion is narrow,391 and does not apply to all criminal offences.392 The ninth is its stricter mens rea requirement for PAL would mean PAL would result in less injustices in relation to bail.393 The tenth is it would remove the current risk of PAL defeating the scheme of culpability provided by the distinction between PAL murder in the form of reckless murder and unlawful act manslaughter PAL.394 This is because the first alternative's mens rea endorsement requirement for PAL would clarify the distinction between the two offences.395
378 Wang, above n 273 at 153.
379 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 484. 380 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 496. 381 Tolmie and Gledhill, above n 229, at 75-76.
382 Grigg, above n 228, at 130.
383 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 490.
384 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.01].
385 Hill, above n 2, at 167.
386 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 484. 387 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 498. 388 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 497. 389 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 497. 390 Hulley, above n 258, at 584.
391 Adams on Criminal Law – Offences and Defences, above n 14, at [CA24.03].
392 Crimes Act 1961, s 24.
393 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 498.
394 R v Rapira, above n 144, at [29].
395 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 490.
The eleventh is it would preserve the withdrawal defence. The twelfth is it would preserve the two features of the application of the section that act to prevent the risk PAL resulting in over- criminalisation, discussed in the second chapter of this dissertation, because it would preserve foresight as part of the mens rea requirement for PAL.396
Several cons can be argued in relation to adopting this second key alternative. The first three are, firstly, it would undermine the utility of PAL in combatting group crime; secondly, it would deprive prosecutors of a vital bargaining chip for securing guilty pleas and testimony from secondary parties against principal parties; and thirdly, it would make jury instructions too complex and difficult.397 The fourth is that by its very nature, PAL is potentially discriminatory and discriminatory, so this alternative would retain this problem with PAL by retaining PAL.398 The fifth is it would create the anomaly that a secondary party must meet a higher standard to be liable for PAL murder in the form of reckless murder, than a principal party, because its mens rea requirement for PAL includes more than foresight.399 The sixth is it would mean that New Zealand’s law on PAL still limits the freedom of association and freedom of thought BORA rights, because its mens rea requirements for PAL would still essentially be imparting liability for association and thought.400
This dissertation’s discussion of the two key alternatives to New Zealand’s current law on PAL, as well as this dissertation’s discussion of the pros and cons of New Zealand’s current law on PAL, mean it is appropriate to examine if one of these two alternatives should be adopted into New Zealand’s law on PAL. This examination will require weighing the pros and cons of adopting each key alternative in New Zealand’s law on PAL, using the discussion in the rest of this dissertation, to determine this dissertation's first key issue of what the future of New Zealand's law on PAL should be. This examination will first examine the mutual pros and cons that can be argued in relation to both key alternatives and then the pros and cons which can be argued in relation to each key alternative.
396 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 490.
397 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 498-503.
398 Tolmie, above n 8, at 468.
399 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 490.
400 New Zealand Bill of Rights Act.
The first and most important mutual pro that can be argued in relation to both these two key alternatives is that they would reduce the risk of over-criminalisation posed by New Zealand's current law on PAL, making New Zealand's law more proportionate, fair, and just.401 They would do this in a few ways. The first way is they would make the standard for PAL for stricter,402 by changing its mens rea requirement.403 The second way is that they would require more evidence for PAL because they would require additional evidence of intention,404 or endorsement.405 The third way is they would better account for defendants who foresee incidental offences being committed by principal parties in the prosecution of the common purpose and do not desire these incidental offences be committed but are unable or feel unable to withdraw from the persecution of the unlawful common purpose. The fourth way is that they would better account for defendants who did not foresee the incidental offence that the principal committed in the prosecution of the unlawful common purpose. The second mutual pro that can be argued in relation to both these two key alternatives is that they would better respect the fundamental criminal law principles of causation,406 fair labelling, and proportionate punishment.407 This is because they would mean defendants would only be criminally liable for offences they committed.408 The third mutual pro that can be argued in relation to both these two key alternatives is as they would retain PAL,409 they would simplify sentencing because PAL treats all parties as equally liable.410 The fourth mutual pro that can be argued in relation to both these two key alternatives is that they would incorporate a knowledge of weapon requirement because they would mean that knowledge or non-knowledge of a weapon would affect whether a defendant is liable under PAL. The fifth mutual pro that can be argued in relation to both these two key alternatives is they would mean that PAL was less likely to be able to be misused by authorities, as their stricter mens rea requirements for PAL,411 would make it harder to justify using PAL unjustly or for ulterior motives.412 The sixth mutual pro that can be argued in relation to both these two key alternatives is that they would reduce
401 Hill, above n 2, at 187.
402 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 484. 403 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 498. 404 Cecil and Mehigan, above n 6, at 19.
405 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 490.
406 Cassese, above n 271, at 117.
407 Wang, above n 273 at 153.
408 Tolmie and Gledhill, above n 229, at 58.
409 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 490.
410 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.01].
411 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 484.
412 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 498.
the risk of PAL creating bail injustices. This is because these two key alternatives would set a stricter mens rea requirement for PAL,413 meaning that fewer defendants would be charged with and convicted of PAL offences.414 Meaning that fewer defendants would have their bail applications affected by charges and convictions stemming from PAL because of the stipulations of the Bail Act.415 The seventh mutual pro that can be argued in relation to both these two key alternatives is that they would reduce the current risk of PAL defeating the scheme of culpability provided by the distinction between reckless murder and manslaughter,416 because they require more than a mens rea requirement of foresight for PAL.417 The eighth mutual pro that can be argued in relation to both these two key alternatives is that their PAL mens rea requirements would better explain why a defendant is liable under PAL,418 as both alternatives would better respect the fundamental criminal law principle of causation than New Zealand’s current law on PAL.419 The ninth mutual pro that can be argued in relation to both these two key alternatives is that they would preserve the withdrawal defence.
The first mutual con that can be argued in relation to both these two alternatives is that they would reduce the utility of PAL in combatting group crime. However, this con can be mitigated by the fact that the utility of PAL in combatting group crime is questionable.420 The second mutual con that can be argued in relation to both these alternatives is that they would deprive prosecutors of a vital bargaining chip for securing guilty pleas from secondary parties, can be rebutted because it is forbidden to use PAL to obtain guilty pleas.421 The third mutual con that can be argued in relation to both these two key alternatives that they would mean PAL could not be used to get secondary party testimony against principal parties where appropriate can be rebutted because they mean secondary parties can still be liable under PAL and therefore want to avoid this liability by providing testimony.422 The fourth mutual con that can be argued in relation to both these two key alternatives, is that they would result in PAL being difficult to
413 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 484. 414 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 498. 415 Bail Act.
416 R v Rapira, above n 144, at [29].
417 Burke v R, above n 26, at [60].
418 Cassese, above n 271, at 117.
419 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 496.
420 Carvalho, above n 230, at 350.
421 New Zealand Police “Charging decisions” (July 2022) New Zealand Police
<https://www.police.govt.nz/sites/default/files/publications/charging-decisions-200522.pdf> at 9-10.
422 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 498.
apply because they would require complex and difficult jury instructions, is mitigated by the fact that New Zealand's current law on PAL is difficult to apply.423 The fifth mutual con that can be argued in relation to both these two key alternatives, is that by its very nature, PAL is potentially discriminatory and discriminatory, so they would retain this problem with PAL by retaining PAL.424 However, this con is mitigated by the fact these alternatives impose a stricter mens rea requirement for PAL.425
Therefore, numerous mutual pros can be argued in relation to both these two key alternatives, and the mutual cons that can be argued in relation to both these two alternatives can be rebutted or mitigated. However, there are differences in the individual pros and cons that can be argued in relation to adopting each of these two key alternatives.
There are zero individual pros and three individual cons that can be argued in relation to adopting the first key alternative to New Zealand’s current law on PAL, of adopting an approach like what was adopted in the Jogee decision in the United Kingdom into New Zealand's law on PAL. The first is that its mens rea requirement of intention may set the standard for PAL too high, meaning that PAL is impossible to prove in practice and as a result, diminishing the utility of PAL in combatting crime, particularly group crime.426 However, this con can be mitigated by the fact that when the mens rea requirement of intention for PAL was introduced by the Jogee decision in the United Kingdom, it did not affect the number of people charged and convicted of PAL.427 The second is it would reduce the flexibility and effectiveness of New Zealand’s law on secondary liability, as it would mean there was only one avenue to hold a defendant liable under s 66,428 because liability under the section for PAL would depend on the same requirements as s 66(1)(b)-d).429 The third is that in the United Kingdom, the Jogee decision, which is the origin of this alternative, is seen as creating injustice,430 and having the potential to be discriminatory and being discriminatory.431
423 Hill, above n 2, at 187.
424 Tolmie, above n 8, at 468.
425 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 498. 426 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 498. 427 Carvalho, above n 230, at 336-337.
428 Cecil and Mehigan, above n 6, at 19.
429 Tolmie and Gledhill, above n 229, at 67.
430 Carvalho, above n 230, at 336-337.
431 Carvalho, above n 230, at 349-350.
There are four individual pros, and two individual cons that can be argued in relation to adopting the second key alternative of adopting an endorsement-based approach to New Zealand's law on PAL. The first pro is it would retain the flexibility and effectiveness of New Zealand’s law on secondary liability,432 because it would preserve the two avenues for imparting secondary liability for incidental offences under s 66.433 The second pro is that it would preserve the two features of the application of the section that act to prevent PAL resulting in over-criminalisation, discussed in the second chapter of this dissertation because it preserves foresight as part of the mens rea requirement for PAL.434 The third pro is that it has not received the same criticism or negative response as the Jogee decision, from which the first alternative originates, though this is mostly because no jurisdiction has adopted an endorsement-based approach into its law on PAL. The fourth pro is that its mens rea requirements of foresight and endorsement would provide a middle ground between the problems posed by the mens rea requirement in New Zealand's current law on PAL and the potential problem posed by the first key alternative’s mens rea requirement, of impossibility of proof in practice.435 The first con is it would create the anomaly that a secondary party must meet a higher standard to be liable for PAL murder in the form of reckless murder, than a principal party, because its mens rea requirement for PAL includes more than foresight, though this is a minor problem.436 The second con is it would mean that New Zealand’s law on PAL still limits the freedom of association and freedom of thought BORA rights, because its mens rea requirement for PAL would still essentially be imparting liability for association and thought.437 However, this con can be mitigated because BORA allows rights to be limited when doing so can be demonstrably justified in a free and democratic society,438 which is likely the case here because of the need to combat group crime and the utility of PAL in combatting group crime.439This examination supports New Zealand's law adopting the second key alternative of an endorsement-based approach into its law on PAL, where the mens rea for PAL would require foresight and endorsement for three reasons.440 The first is because it would mitigate or solve many of the significant problems posed by New Zealand’s current law on PAL. The second is
432 Tolmie and Gledhill, above n 229, at 75-76.
433 Grigg, above n 228, at 130.
434 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 490. 435 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 498. 436 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 490. 437 New Zealand Bill of Rights Act.
438 New Zealand Bill of Rights Act, s 5.
439 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 498.
440 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 490.
that its pros greatly outweigh its cons. The third is that the sum of this second alternative’s pros and cons greatly outweighs the sum of the first key alternatives, pros, and cons.
Therefore, the appropriate recommendation for the future of New Zealand’s law on PAL is that the second key alternative discussed in this dissertation, of adopting an endorsement-based approach to New Zealand’s law on PAL, should be adopted, which means that the mens rea for PAL in New Zealand should be changed to require endorsement as well as foresight of the incidental offence.441
It is appropriate and necessary to consider whether this recommendation that New Zealand adopt the second key alternative discussed in this discussion, of an endorsement-based approach, into its law on PAL, could and will be implemented. The Court in Jogee in the in United Kingdom felt it could change the United Kingdom's law on PAL and that it was not Parliament’s role to do so.442 The Court's logic, in Jogee, was that because PAL in the United Kingdom is a common law doctrine and because the Courts had made mistakes in the application and requirements of the PAL doctrine, it was only fitting that the Court corrected these mistakes.443 It has been argued that the logic of the Court in Jogee could be applied in New Zealand to change New Zealand's current law on PAL under the section because the logic from Jogee could be applied to errors of statutory interpretation.444 However, the case of Uhrle has made it clear that the Courts are unwilling to depart from the stipulations of the section and the elements Ahsin identified as required for PAL under the section.445 Therefore, while it is arguable that New Zealand's law on PAL could be changed to implement this recommendation of an endorsement-based approach, it is unlikely this recommendation will be implemented into New Zealand’s law on PAL without Parliamentary statutory reform of the section. This is unlikely, as although Parliament has reformed the section in the past, nothing suggests it intends to do so again.446
C. The Answer to the Burke Manslaughter Question.
441 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 490.
442 At [85].
443 At [85].
444 Gledhill, above n 25, at 409.
445 Uhrle v R, above n 20, at [5]-[7].
446 Adams on Criminal Law – Offences and Defences, above n 14, at [CA66.27].
The discussion in this dissertation’s second chapter makes it abundantly clear that the appropriate answer to the Burke manslaughter question is the first plausible answer to the Burke manslaughter question that the standard for liability for unlawful act PAL manslaughter should require a defendant foresaw that an unlawful act likely to do more than trivial harm to the deceased was a probable consequence of the prosecution of the common purpose and that unlawful act was a substantial and operative cause of the deceased’s death. However, this dissertation’s previous discussion and recommendation of adopting an endorsement-based approach into New Zealand's law on PAL should not be ignored. This means that it is recommended that liability for unlawful act manslaughter PAL should also require the defendant endorsed the unlawful act that resulted from pursuing the unlawful common purpose and was a substantial and operative cause of the deceased’s death. Therefore, it is submitted that the correct answer to the Burke manslaughter question is that the standard for liability for unlawful act manslaughter PAL should require a defendant foresaw that an unlawful act likely to do more than trivial harm to the deceased was a probable consequence of the prosecution of the unlawful common purpose, that unlawful act was a substantial and operative cause of death, and that the defendant endorsed that unlawful act. Accordingly, it is recommended that New Zealand's law adopt this answer to the Burke manslaughter question.
It is likely that this recommended answer to the Burke manslaughter question, without the requirement that the defendant endorsed the unlawful act that resulted from pursuing the unlawful common purpose and was a substantial and operative cause of the deceased 's death, could easily be adopted into New Zealand's law on PAL. This is because the New Zealand Court of Appeal has already done this in current relevant authority of Burke,447 and Kuru.448 However, the Uhrle case and the fact that Parliament has not indicated it intends to change New Zealand's law on PAL means that New Zealand’s law on PAL is unlikely to answer the Burke manslaughter question in a way that requires a defendant endorsed the unlawful act that resulted from prosecuting the unlawful common purpose and was a substantial and operative cause of the deceased’s death, for unlawful act manslaughter PAL, without Parliamentary reform of the Section.449 However, how the Supreme Court will answer the Burke manslaughter question in the appeal of the Court of Appeal’s decision in Burke is ultimately unknown.450
447 Burke v R, above n 26.
448 Kuru v R, above n 155.
449 Uhrle v R, above n 20, at [5]-[7].
450 Burke v R, above n 26.
D. Conclusion.
Therefore, New Zealand's law on PAL should adopt the second key alternative and the first plausible answer to the Burke manslaughter question.
Conclusion.
This dissertation has examined two key issues. The first key issue being what the future of New Zealand’s law on PAL should be. The second key issue being how New Zealand’s law should answer the Burke manslaughter question. The recommended resolution of the first issue is that New Zealand should adopt an endorsement-based approach to its law on PAL, where the mens rea required for PAL would include an endorsement requirement as well as a foresight requirement.451 This would mean that PAL would depend on the defendant foreseeing the incidental offence as a result of pursuing the unlawful common purpose and endorsing that incidental offence.452 The recommended resolution of the dissertation’s second key issue is that the standard for liability for unlawful act PAL manslaughter should require a defendant foresaw that an unlawful act likely to do more than trivial harm to the deceased was a probable consequence of the prosecution of the unlawful common purpose, that unlawful act was a substantial and operative cause of the deceased’s death, and that the defendant endorsed that unlawful act. Whilst the Uhrle case, and the fact there has been no indication from Parliament that it intends to change New Zealand's law on PAL, means it is unlikely the recommendations in relation to either of this dissertation’s two key issues will be implemented into New Zealand’s law on PAL, progress and miracles should never cease.453
451 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 490. 452 Krebs, “Mens Rea in Joint Enterprise: A Role for Endorsement?”, above n 233, at 490. 453 Uhrle v R, above n 20.
Bibliography.
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Antonio Cassese “The Proper Limits of Individual Responsibility under the Doctrine of Joint Criminal Enterprise” (2007) 5(1) JICJ 109.
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Kris Gledhill “Common purpose liability” (2016) 11 NZLJ 406.
James Grant “Common Purpose: Thebus, Marikana and Unnecessary Evil” (2014) 30(1) SAJHR 1.
Edward Grigg “Joint Enterprise Liability: Recent Developments and Judicial Responses” (2019) 83(2) The Journal of Criminal Law 128.
Judith Hayem “Marikana: Analysing Miners’ Subjectivity and the Crisis of Representation” (2016) 51(2) JAAS 171 at 172.
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Ulrike Kistner “‘Common Purpose': The Crowd and the Public” (2014) 26(1) Law and Critique 27.
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Natalia Perova “Stretching the Joint Criminal Enterprise Doctrine to the Extreme: When Culpability and Liability Do Not Match” (2016) 16(5) International Criminal Law Review 761.
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Alan Reed “Reform of Complicity Precepts: New Pathways and Comparative Solutions” (2022) 86(6) The Journal of Criminal Law 387.
Jenny Richards and Luke McNamara “Just Attribution of Criminal Liability: Consideration of Extended Joint Criminal Enterprise Post-Miller” (2018) 42(6) Criminal Law Journal 372.
Julia Tolmie “Uncertainty and Potential Overreach in the New Zealand Common Purpose Doctrine” (2014) 26(2) NZULR 441.
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F. Internet Materials.
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G. Theses.
Robert Petch “Joint Enterprise Liability in New Zealand: Time for a rethink?” (LLB (Hons) Dissertation, University of Canterbury, 2021).
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