Executing a u-turn: Withdrawal and secondary party liability following Ahsin v R

Abstract

This article analyses the conceptual nature of withdrawal from secondary participation in crime under section 66 of the Crimes Act 1961. The majority in Ahsin v R held the recognition of withdrawal must be as a ‘true’ defence, and was unable to negate the elements of s 66 because it could not undo the completed actus reus at the point of participation. This required the majority to clarify or alter the legal elements of section 66, which then indicate the derivative basis of s 66 liability to be on an association of the secondary party to the principal. This view is questionable in light of underlying principles of secondary liability and criminal law generally. This article advocates that in order to establish sufficient moral culpability and fault, some connection from the secondary party to the offence should be required. This connection can be broken if the secondary party fully neutralises his participation before the offence is committed. Withdrawal would therefore be able negate the elements of the offence. Policy reasons may have motivated the majority to reject this conclusion, however this approach is arguably more consistent with secondary party liability in New Zealand and in other jurisdictions.