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PJDP Benchbook - 05 Criminal responsibility

5:

CRIMINAL RESPONSIBILITY

This chapter discusses the principles and rules as to criminal responsibility. It sets out:

• general principles relating to criminal law;
• defences that can be raised which excuse criminal responsibility;
• parties to offences.

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1 Introduction

In Niue, every offence is created by a Statute, Regulation or a by-law.

The Niue Act 1966 is the main Statute that sets out those acts or omissions which should be regarded as a criminal offence in Niue, and the rules related to the criminal law in Niue.

This chapter will discuss the:

• important principles of the criminal law which govern the conviction of criminal offences in Niue;
• defences that can be raised which excuse an accused from criminal responsibility; and
• parties which should be held criminally responsible for those acts or omissions;

2 Principles of Criminal Law

2.1 Innocent Until Proved Guilty

One of the most important principles in criminal law is that the accused is innocent until proved guilty. Unless and until the prosecution proves that the accused is guilty of all the elements of the offence, he or she is innocent in the eyes of the law. You must always remember this.

2.2 Burden and Standard of Proof

The prosecution has the burden, or responsibility, of proving their case. They must prove all the elements of the offence, beyond reasonable doubt.

If, at the end of the prosecution case, the prosecution has not produced evidence of all the elements of the offence, then there is no case to answer and the prosecution has failed.

If the prosecution has succeeded at producing evidence of all the elements of the offence, then the defence has a chance to present their case and you must then decide whether the prosecution has proved their case beyond reasonable doubt, taking into account what the defence has shown.

Remember that the defence does not have to prove anything. It is for the prosecution to prove all elements beyond reasonable doubt. If, after hearing the defence evidence (if any), you have a reasonable doubt on any of the elements, then the prosecution has failed.

2.2 Beyond Reasonable Doubt

This means you are sure the accused is guilty of the charge, based on the evidence that has been presented by the prosecution, and there is no doubt in your mind.

If you are uncertain in any way, you must find the accused not guilty and not ask for further information from either party after they have made submissions: see April 2, 1998 letter from the Chief Justice.

If you have doubts, this means that the prosecution has not proven the charge “beyond reasonable doubt.”

2.4 What Must be Proved

All offences involve the:

• actus reus; and
• mens rea.

Actus reus: the physical act or omission

This is the physical conduct or action, or an omission:

• which is not allowed by law; or
• for which the result is not allowed by law.

These acts or omissions are the physical elements of the offence, all of which must be proved by the prosecution.

An offence may consist of one act or omission or a series of acts or omissions. The failure by the prosecution to prove the act(s) or omission(s), and any accompanying conditions or circumstances means there can be no conviction.

Mens rea: mental capacity

Most offences require the prosecution to prove the accused had a particular state of mind in addition to the act and its consequences. This is called the mens rea.

This could be:

• intention: the accused means to do something, or desires a certain result;
• recklessness: the accused foresees the possible or probable consequences of his actions and although does not intend the consequences, takes the risk;
• knowledge: knowing the essential circumstances which constitute the offence;
• belief: mistaken conception of the essential circumstances of the offence; or
• negligence: the failure of the accused to foresee a consequence that a reasonable person would have foreseen and avoided.

3 Criminal Responsibility

Where a person is not criminally responsible for an offence, they are not liable for punishment for the offence.

Generally, an accused will argue that he or she should not be punished for an offence because:

• the prosecution has not proved all the elements beyond reasonable doubt; or
• he or she has a specific defence, specified in the actual offence (e.g. “lawful excuse”); or
• he or she was not criminally responsible, relying on one of the defences either in Statute, or at common law under s. 238 Niue Act 1966.

Section 238 Niue Act 1966 sets out that all the rules and principles of the common law which render any circumstance a justification or excuse for an act or omission, or a defence to any charge, shall remain in force with respect to the Niue Act or any other enactment unless inconsistent with such enactments.

In the case of a defence, the accused must point to some evidence to support such a defence. Then, it is the prosecution that bears the burden of proving that such evidence should be excluded and that the accused was criminally responsible for his or her act(s) or omission(s).

The exception is insanity. In this case, it is for the accused to prove, on the balance of probabilities, that they were insane at the time of the offence and, therefore, did not have the required mens rea for the offence.

Defences can be divided into two categories:

1. Those rules that relate to a denial of the mens rea of the offence or to a denial that the accused was acting voluntarily:

• Intention;
• Accident;
• Mistake;
• Intoxication; and
• Immature age.

2. Those rules that relate to excuses or circumstances which justify, in law, the conduct of the accused:

• Compulsion; and
• Defence of person or property.

4 Rules Relating to the Mens Rea of an Offence and to Involuntary Acts

4.1 Negligence, Involuntary Acts and Accidents

Subject to the express provisions of any enactment relating to negligent acts and omissions, a person is generally not criminally responsible for an act or omission which occurs independently of the exercise of his or her will or for an event which occurs by accident.

Negligent Acts or Omissions

Criminal negligence is where the accused’s act or omission, which constitutes the offence, fails to comply with the standards of the reasonable person. This is a different standard of fault than most criminal offences, which require proof of the accused’s state of mind.

Therefore, a person can be found criminally negligent for something, even if it is an accident, if a reasonable person would have been aware of the risks of that conduct in the same situation.

Involuntary Acts

Most criminal offences require that the accused’s acts or omissions be ‘willed’ or ‘voluntary’.

Involuntary Acts

An accused will not be criminally responsible for acts or omissions that are involuntary, not only because there is a lack of the required mens rea for the offence but also because involuntary movements cannot constitute the necessary actus reus of any offence.

An example of an involuntary act would be if Tagata Goagoa was thrown out of a shop window by his enemies and landed on a car window. Tagata Goagoa would not be criminally responsible for the damage to the car because it was not Tagata Goagoa’s voluntary act that led to the damage of the car.

Accidents

A person is generally not criminally responsible for an event that occurs by accident.

The event must not be intended by the accused. An event is an accidental outcome of the willed act, which then leads to a result. The event must not have been able to be easily foreseen by the accused under the circumstances.

You must ask:

• Would such an event have been easily foreseen by an ordinary person in the same circumstances?

The prosecution bears the burden of proving that the act or omission was not an accident, beyond a reasonable doubt. However, when the defence of accident is raised by the accused, he or she must point to some evidence in support of the defence.

4.2 Mistake of Fact

For the defence of mistake of fact to succeed:

• the accused must have been under an honest, but mistaken, belief as to the existence of any state of things; and
• the offence must have been committed while holding the honest but mistaken, belief.

Whether the accused was under an honest, but mistaken, belief is a subjective test, that is, from the evidence presented, did the accused actually have a genuine and honest belief as to the state of things, even though he or she was mistaken in that belief?

The common law rules for honest but mistaken belief are:

• the prosecution has the burden of proving the unlawfulness of the accused’s action;
• if the accused has been labouring under a mistake as to the facts, he or she must be judged according to his or her mistaken view of the facts; and
• if the accused was or may have been mistaken as to the facts, it is immaterial that on an objective view, that the mistake was unreasonable: R v Williams (G.) [1984] CrimLR. 163, CA.

4.3 Intoxication

Intoxication itself is not a defence to a crime. Rather, the common law rule is that voluntary intoxication by drink or drugs may only give rise to a defence to crimes of specific intent.

Specific intent offences are those in which a particular state of mind, or mens rea, is a required element of the offence.

For a defence of intoxication to succeed then, it would have to be shown by the evidence that the accused did not have the necessary state of mind required for that offence, because of his or her state of voluntary intoxication.

All offences, other than those of specific intent, can be regarded as crimes of basic intent and the accused should not be allowed to show that he or she lacked the mens rea due to voluntary intoxication.

4.4 Immature Age: ss. 237A & 238A Nuie Act 1966

No person shall be convicted of an offence by reason of any act or omission when under the age of 10 years: s. 237A(1) Niue Act.

No person shall be convicted of an offence by reason of any act or omission when of the age of 10 but under the age of 14 unless he or she knew that it was wrong or that it was contrary to the law: s. 238A(1) Niue Act.

It should be noted however that there should be no presumption of law that any person is incapable of intercourse because of his age for the purposes of Part V: Criminal Offences: s. 161 Niue Act 1966.

Evidence of age

In cases where the defence of “immature age” is raised, evidence as to the child’s age should be given.

Capacity to know and understand for children between 10 and 14 years

From R v Sheldon [1996] 2 CrAppR 50.

It is for the prosecution to prove, beyond reasonable doubt, that when committing the offence, the child knew that his or her act was seriously wrong. This is distinct from an act of mere naughtiness or childish mischief.

Clear evidence as to the child’s capacity is required, not just evidence as to the offence itself.

The surrounding circumstances are relevant and what the accused child said or did both before and after the act may go towards proving guilty knowledge. However, sometimes this behaviour may be consistent with naughtiness or mischief rather than wrongdoing.

Proof that the accused was a normal child for his or her age will not necessarily prove that he or she knew his action was seriously wrong.

Capacity or understanding may be proven by:

• calling any person who knows the child and is able to show that the child did know that he or she ought not to commit the offence, e.g., teachers, parents, relatives;
• the investigating officer asking the following questions:

; Did you know that what you did was seriously wrong?

; Why did you know it was seriously wrong?

; Would you have done what you did if a police officer, your parents, teachers, village elders or your pastor could see you?

5 Rules Relating to Excuses or Special Circumstances

5.1 Compulsion (or Duress)

A person may have an excuse for an offence based on compulsion, also called duress.

Compulsion by Threats

Compulsion by threat is when an accused commits an act or omission in order to comply with the demands of the person threatening him or her.

Type of Threat

• There must be threats of death or grievous bodily harm.
• Serious psychological injury is not enough of a threat: R v Baker and Wilkins [1997] Crim LR, 497.
• Threats of death or grievous bodily harm made to third parties, especially close relatives, may be enough of a threat to give a defence: R v Oritz (1986) 83 Cr App R 173.

Reasonableness

• The fact that the accused believed that a threat of death or grievous bodily harm would be carried out is not sufficient. It is whether a person of reasonable firmness sharing the characteristics of the accused would not have given way to the threats.

The test for compulsion by threats

1. Was the accused driven to act as he or she did because he or she had a reasonable belief, because of what the other party did or said, that if he or she did not act, the other party would kill or cause grievous bodily harm to him or her?

2. If the accused had such reasonable belief, has the prosecution proved that a person of reasonable firmness, sharing the characteristics of the accused, would not have responded the same as the accused if that person reasonably believed what was said or done by the other party to the offence?

Compulsion by Circumstances

Compulsion by circumstances is when an accused does an act or omission in order to escape from the threats of the other person.

This defence is available only if, from an objective standpoint, the accused was acting reasonably and proportionately in order to avoid a threat of death or grievous bodily harm.

5.2 Defence of Person or Property

A person may use such force as is reasonable in the circumstances for the purposes of:

• self-defence;
• defence of another; or
• defence of property.

Principles

• A person may use such force as is reasonable in the circumstances as he or she honestly believes them to be in the defence of him or herself or another: Beckford v The Queen [1988] AC 130.
• What force is necessary is a matter of fact to be decided on a consideration of all the surrounding factors.
• The state of mind of the accused should also be taken into account. This is a subjective test: R v Whyte (1987) 85 CrAppR 283.
• Force may include killing the aggressor, but there must a reasonable necessity for the killing or at least an honest belief based on reasonable grounds that there is such a necessity.
• It would only be in the most extreme circumstances of clear and very serious danger that a Court would hold that a person was entitled to kill simply to defend his or her property, as there are many other effective remedies available.
• The onus is on the prosecution to prove that the accused did not act in self-defence or in defence of property, once the issue has been raised by the accused and evidence has been presented: Billard v R (1957) 42 CrAppR 1; R v Moon [1969] 1 WLR 1705.

6 Parties to Offences

According to the law, different people can be held criminally responsible for an offence, as parties.

In Niue, parties to offences include:

• principal offenders and accessories, under s. 233 Niue Act;
• joint offenders who are in prosecution of a common purpose, under s. 234 Niue Act;
• those who incite another party to an offence, under s. 232 Niue Act;
• accessories after the fact, under s. 236 Niue Act;
• conspirators, under s. 228 Niue Act.

6.1 Principal Offenders

A principal offender is the person(s) whose actual conduct satisfies the definition of the particular offence in question.

Section 233(a) Niue Act states that everyone is a party to and guilty of an offence who actually commits the offence.

It must be proved that the accused had both the mens rea and actus reus for the particular offence that they have been charged with in order to be a principal offender.

In cases where there is only one person who is involved in the offence, he or she will be the principal offender.

For Example:

If a person punches another on the face causing injury, that person would be considered the principal offender for the offence of assault.

6.2 Accessories

An accessory is a person who aids, abets, or counsels or procures the commission of an offence. Although an accessory is not a principal offender, they are charged and can be convicted of the actual offence as if they had been the principal offender.

An accessory may be found criminally responsible for all offences unless it is expressly excluded by Statute.

The actus reus of an accessory involves two concepts:

• aiding, abetting, counselling and procuring;
• the offence.

The mental element (mens rea) for an accessory is generally narrower and more demanding than that required for a principal offender. The mental element for principal offenders includes less culpable states of mind such as recklessness or negligence, while the mental elements required for an accessory are:

• knowledge: he or she must know at least the essential matters which constitute the offence; and
• intention: he or she have an intention to aid, abet, enable, counsel or procure. This does not necessarily mean that he or she had the intention as to the principal offence that was committed. Note that a common intention is not required for procuring.

Aiding and Abetting

Every person is a party to and guilty of an offence who does or omits any act for the purpose of aiding another person to commit the offence: s. 233(b) Niue Act.

Every person is a party to and guilty of an offence who abets any person in the commission of the offence: s. 233(c) Niue Act.

The terms to aid and abet generally mean to give assistance and encouragement at the time of the offence.

In Attorney-General Reference (No. 1 of 1975) [1975] 2 All ER 684, it was found that some sort of mental link is required between the principal offender and the secondary party in order for there to be aiding and abetting. This requires that the principle offender and the secondary party are together at some stage discussing the plans that made be made in relation to the alleged offence.

Elements for Aiding or Abetting:

• An offence must have been committed by the principal.
• Aiders or abetters were acting in concert with the principal offender (encouragement in one form or another is a minimal requirement).
• There was some sort of mental link or meeting of the mind between the secondary party and the principal offender regarding the offence.

Counselling or Procuring

Every person is a party to and guilty of an offence who counsels or procures any person to commit the offence: s. 233(d) Niue Act.

The term, ‘to counsel or procure’, generally describes advice and assistance given at an earlier stage in the commission of the offence.

You should note that every person who counsels and procures another person to be a party to an offence is:

• a party to that offence, even if the offence was committed in a way that was different from what was counselled; or
• a party to every offence which the other commits as a consequence of the counselling and procuring and which the person counselling or procuring knew was likely to be committed as a consequence of the counselling or procuring: s. 235(1) & (2) Niue Act.

Counselling

The normal meaning of ‘counsel’ is to solicit, instruct or authorise.

Counselling does not require any causal link. As long as the advice or encouragement of the counsellor comes to the attention of the principal offender, the person who counselled can be convicted of the offence. It does not matter that the principal offender would have committed the offence anyway, even without the encouragement of the counsellor: Attorney-General v Able [1984] QB 795.

See R v Calhaem [1985] 2 All ER 226.

The Elements for Counselling:

• An offence must have been committed by the principal; and
• The accused counselled the principal to commit an offence; and
• the principal acted within the scope of his or her authority: R v Calhaem [1985] 2 All ER 267.

Procuring

To procure means to bring about or to cause something or to acquire, provide for, or obtain for another.

Procuring must occur prior to the commission of the offence.

Procuring was defined in Attorney-General’s Reference (No. 1 of 1975) [1975] 2 All ER 684:

• Procure means to produce by endeavour.
• You procure a thing by setting out to see that it happens and taking appropriate steps to produce that happening.
• You cannot procure an offence unless there is a causal link between what you do and the commission of the offence.
• There does not have to be a common intention or purpose but there must be a causal link.

The Elements of Procuring:

• An offence must have been committed by the principal; and
• The accused procured the principal to commit an offence; and
• There is a causal link between the procuring and the commission of the offence.

For other case law on parties see John v R (1980) 143 CLR 108; R v Clarkson (1971) 55 Cr App R 455; Ferguson v Weaving (1951) 1KB 814; National Coal Board v Gamble (1958) 3 All ER 203.

Withdrawal

Sometimes there may be a period of time between the act of an accessory and the completion of the offence by the principal offender. An accessory may escape criminal responsibility for the offence if they change their mind about participating and take steps to withdraw their participation in the offence.

What is required for withdrawal varies from case to case but some of the common law rules set down are:

• withdrawal should be made before the crime is committed;
• withdrawal should be communicated by telling the one counselled that their has been a change of mind

; this applies if the participation of counsellor is confined to advice and encouragement;

• withdrawal should be communicated in a way that will serve unequivocal notice to the one being counselled that help is being withdrawn;
• withdrawal should give notice to the principal offender that, if he or she proceeds to carry out the unlawful action, he or she will be doing so without the aid and assistance of the one who withdrew.

See R v Becerra and Cooper (1975) 62 Cr App R 212.

6.3 Prosecution of a Common Purpose

If two or more persons form a common intention to carry out an unlawful purpose with one another and, to assist each other in that purpose, each of them is party to every offence committed by one of them if it was known to be a probable consequence of carrying out that common purpose: s. 234 Niue Act.

Section 234 Niue Act would not apply in circumstances where the offenders form a common intention to commit an offence and, in fact, do nothing further than commit the offence as planned. In this case, one would be a principal offender and one would be an accessory because both are equally culpable for the offence that was proposed and committed.

Section 234 Niue Act applies when, during the commission of the intended, original offence, an additional offence is carried out.

Example:

Steven and Robert decide to commit a robbery. Steven is inside the store taking the money while Robert is holding the door and making sure no one comes into the bank. Steven will be liable for the offence of robbery as the principal offender under s. 233(a) Niue Act, while Robert will be liable for the offence of robbery as a secondary party under s. 233(b) Niue Act.

However, if during the course of the course of the robbery, Steven shoots and kills the shopkeeper, Steven will be liable as the principal offender for killing the shopkeeper.

Whether Robert will be held liable for killing the shopkeeper, which was not part of the common purpose of robbing the shop, will depend on whether Robert knew or ought to have known that killing the shopkeeper would be a probable consequence of robbing the shop.

If Robert knew or ought to have known that killing the shopkeeper was a probable consequence of carrying out the common purpose of robbing the shop, he will be liable for the killing as a secondary party under s. 233(b) Niue Act. Both Robert and Steven will be jointly charged with murder under s. 233 Niue Act and the relevant provisions for murder.

Elements for Prosecution of a Common Purpose:

• A common intention between the accused;
• Carrying out an unlawful purpose;
• An offence is committed while carrying out that unlawful purpose;
• The offence is a probable consequence arising from carrying out the unlawful purpose.

6.4 Accessories After the Fact

A person is said to be an accessory after the fact when he or she:

• has knowledge that a person is a party to an offence; and
• receives, comforts, or assists another, or tampers with or knowingly suppresses evidence against him or her, so that he or she is able to avoid arrest or conviction, or escape after arrest: s. 236 NA.

Any person who becomes an accessory after the fact to any offence punishable by imprisonment, unless an express provision is made by the Niue Act or some other enactment for the punishment of an accessory after the fact, is liable to imprisonment:

• for 7 years if the punishment for the offence is for life; or
• for 5 years if the punishment for the offence is for 10 or more years; or
• in any other case, to no more than half the punishment he or she would have been had been liable to if they had been the principal offender: s. 237 NA.

A married person does not become an accessory after the fact for the offence of the spouse if they:

• receive, comfort or assist the spouse, or suppress or tamper with evidence, in order to enable the spouse to avoid arrest or conviction or escape after arrest; or
• receive, comfort or assist the spouse and any other person who has been a party to the offence, or suppress or tamper with evidence, in order to enable the spouse and any other party to the offence to avoid arrest or conviction, or escape after arrest: s. 236(2) NA.

Elements for Accessories after the Fact:

• The party to the offence was guilty of a offence punishable by imprisonment; and
• The accused knew that he or she was a party to an offence; and
• The accused received or assisted or comforted the party to the offence, or tampered with or suppressed evidence; and
• The accused received or assisted the party to the offence, or tampered with or suppressed evidenced, in order to enable the him or her to avoid arrest or conviction or escape after arrest.

Points to Note

• The principal offender received or assisted must have been guilty of an offence.
• The assistance must be given to the offender personally.
• The assistance must be given in order to prevent or hinder him or her from being apprehended or being punished.

; Assistance given indirectly or for motives other than hindering arrest of the principal offender, such as avoiding arrest him or herself or to make money for him or herself, would not make the person guilty as an accessory after the fact: Sykes v Director of Public Prosecutions (1961) 45 CrAppR 230.

• The Court must be satisfied that the accused knew that an offence had been committed by the principal offender.
• Proof that an offence has been committed is sufficient to prove a person guilty of being an accessory after the fact, even if there has not yet been a conviction of the principal offender: R v Anthony (1965) 49 CrAppR.

6.5 Conspiracy

Every person who conspires with any other person to commit an offence which is punishable by imprisonment is liable to imprisonment for a term not exceeding half the longest term to which the person committing the offence would be sentenced: s. 228 Niue Act.

Elements of Conspiracy:

Actus Reus

• Agreement is the essential element of conspiracy. It is the actus reus of conspiracy. There is no conspiracy if negotiations fail to result in a firm agreement between the parties: R v Walker [1962] Crim LR 458.

; The offence of conspiracy is committed at the moment of agreement: R v Simmonds & Others (1967) 51 CrAppR 316.

; An intention between two parties is not enough for a charge. What is required is an agreement between two or more to do an unlawful act by unlawful means: R v West, Northcott, Weitzman & White (1948) 32 CrAppR 152.

• At least two persons must agree for there to be a conspiracy. However, a single accused may be charged and convicted of conspiracy even if the identities of his or her other fellow conspirators remains unknown.

Mens Rea

• Conspiracy requires two or more people to commit an unlawful act with the intention of carrying it out. It is the intention to carry out the crime that constitutes the necessary mens rea for conspiracy: Yip Chieu-Chung v The Queen [1995] 1 AC 111.
• Knowledge of the facts is only material, in so far as such knowledge throws light onto what was agreed to by the parties: Churchill v Walton [1967] 2 AC 224.
• Knowledge of the relevant law that makes the proposed conduct illegal need not be proved: R v Broad [1997] Crim LR 666.