What is the difference between aiding and abetting?
Party liability in criminal and regulatory proceedings
In any criminal case a defendant can either be charged as a principal or as a party to the offence. The principal is the person who actually commits the offence - for example in a bank robbery the principal would be the person who points a gun at the teller and demands money. A party is someone who helps the principal – so in a bank robbery, a party would be someone who stood as a lookout or was waiting outside the bank in a getaway car.
Similarly, in regulatory proceeding, such as civil pecuniary penalty proceedings under the Financial Markets Conduct Act, there can be a person or persons who actually committed the contravention (such as market manipulation or insider trading) and a person or persons who were involved in a contravention.
In the Crimes Act 1961, party liability is addressed under s 66:
66 Parties to offences
(1) Every one is a party to and guilty of an offence who—
(a) Actually commits the offence; or
(b) Does or omits an act for the purpose of aiding any person to commit the offence; or
(c) Abets any person in the commission of the offence; or
(d) Incites, counsels, or procures any person to commit the offence.
In the regulatory context, party liability is addressed in provisions such as s83 of the Commerce Act, s 43 of the Fair Trading Act, and s 533 of the FMCA:
533 Involvement in contraventions
(1) In this Act, a person is involved in a contravention if the person—
(a) has aided, abetted, counselled, or procured the contravention; or
(b) has induced, whether by threats or promises or otherwise, the contravention; or
(c) has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention; or
(d) has conspired with others to effect the contravention.
(2) Subsection (1) does not apply to proceedings for offences (but see Part 4 of the Crimes Act 1961, which relates to parties to the commission of offences).
The approach taken to the application of these regulatory provisions is the same as that taken in respect of party liability in the criminal law: a party will be liable only if he or she intentionally participates in the contravention, which means that the person must have knowledge of the essential matters which go to make up the contravention.[1]
Note that s 533(1)(a) uses the same aiding and abetting language that is found in s 66. The essence of aiding and abetting is intentional help.[2]
So what is the difference between aiding and abetting?
Aiding
“Aiding”, as the names suggests, is helping.
First, to convict a defendant as a party to an offence under s 66(1)(b), the Crown must prove an act by that person that aids another to commit the offence.[3] So proof of causation is required: the person alleged to be a party must have assisted the principal offender in the commission of the crime, by words or conduct or both.[4]
Second, such action must be deliberately taken, with the intention that the conduct will aid the principal offenders in their criminal actions.[5] So the Crown must prove that the defendant intended to assist the principal offenders to commit the offence.
Third, the party must know both the physical and mental aspects of the principal’s conduct, that is, the actions planned to be taken and the intention with which they are to be done.[6]
Abetting
To abet means to urge on, instigate, or encourage. For criminal liability, any abetting must occur while the principal offender is committing the offence.[7]
A defendant cannot be held guilty as an abettor unless an actual intent to encourage is proved.[8]
While the Crown need not prove a causal connection between the act of encouragement and the commission of the offence, some connection between the abettor and the principal offender is required.[9]
The encouragement relied upon by the Crown must be communicated to the principal offender.[10]
At a bare minimum, the principal offender must be aware of the presence of the person said to be an abettor.[11] But mere presence at the scene, or mere intention to encourage, is insufficient for party liability.[12]
In general, an inference of intention to encourage is more likely to be available in cases where presence is according to prior agreement with the principal party or is accompanied by some positive act or implicative circumstance.[13]
Implications
The first key implication of the foregoing is that to prove party liability for a strict liability regulatory offence or in a civil pecuniary penalty proceeding, the regulator has to prove a full mens rea breach by the alleged party – essentially the regulator has to prove a breach as if it were a criminal offence.
By way of example, under the FMCA it suffices to prove against principals that they ought reasonably to have known that:
(a) their trading was likely to have the prohibited effect (for market manipulation); or
(b) the information they possessed was material information not generally available to the market (for insider trading).[14]
So that imports an objective test and does not require proof of actual knowledge – that is reserved for the criminal offences (see ss 244 and 269 FMCA).
However, to prove party liability for market manipulation or insider trading, the prosecution must prove for each trading instance an act of intentional assistance or participation.
For market manipulation, this would including proving actual knowledge of the trading or intended trading of one of the principal defendants, and that such trading was at least likely to have one of the prohibited effects (ie creating a false or misleading appearance with respect to the extent of active trading in quoted financial products or with respect to the supply of, demand for, price for trading in, or value of financial products).
For insider trading, this would including proving actual knowledge that the information the principal possessed was material information that was not generally available to the market and actual knowledge of the trading,[15] disclosing,[16] or advising[17] that was intended by the principal.
Second, even if there is evidence that the secondary party was aware of what was going on and knew some of the key ingredients listed above, the regulator or the Crown still have to prove an act of actual assistance or encouragement – knowledge on its own is not enough.
For example, in a recent case, I acted for a defendant charged with attempted murder. It was alleged by the Crown that, as he was near the scene at the time of the offence, he must have been there to act as a lookout or help out if something went wrong for the assailants. The Crown said in opening that my client was there “to encourage, even if only by [his] presence, and perhaps also to be a backup person in the event that further assistance was needed”. At the end of the Crown case, after more than 4 weeks of evidence, I was successful in arguing that the Crown had not proved any act of assistance or encouragement and the charge against my client was dismissed under s 147 of the Crimes Act.[18] While the High Court found that there was sufficient evidence to go to the jury that my client knew the principal offenders were going to attack the victim with the intention to kill him,[19] the Court found that his alleged assistance was “completely ineffectual” and concluded: [20]
It might have had some effect only if events had turned out differently, but in my view, there is no basis for a finding of actual assistance. Nor is there any evidence of actual encouragement.
[1] NZ Bus Ltd v Commerce Commission [2008] 3 NZLR 433 at [260]; Specialised Livestock v Borrie CA72/01, 20 September 2002 at [155] – [157]; Megavitamin Laboratories (NZ) Ltd & Stewart v Commerce Commission (1995) 6 TCLR 231 at p245 – 250.
[2] R v Samuels [1985] 1 NZLR 350, 356.
[3] Ashin v R [2015] 1 NZLR 493 at [82]. The principal party does not need to know he is being assisted, but “a lookout who has no occasion to warn the principal party of an unwelcome intervention, and who does nothing else by way of actively helping the principal party, actually assists the principal party only if the latter is aware of the lookout’s presence” (Adams on Criminal Law, online ed., at [CA66.18 (1)]).
[4] At [83] (b). See Larkins v Police [1987] 2 NZLR 282 at 290: “… there is a consistent thread in the authorities that at common law actual assistance or encouragement is required as a prerequisite for conviction of a secondary party for aiding or encouraging. … the need for actual assistance is implicit in the concept of “aid”, and …there reference to “purpose” is descriptive of the state of mind required of the secondary party. … there must be proof of actual assistance.”
[5] At [82].
[6] At [82] and [83] (d).
[7] Garrow and Turkington's Criminal Law in New Zealand (online ed) at [CRI 66.6(i)]: “One who abets is one who instigates, incites, or encourages another in the commission of an offence; while that other is actually committing the offence, the abettor is urging him on or inciting him in its commission: Theeman v Police [1966] NZLR 605 (SC) at 607.”
[8] R v Pene CA63/80 , 1 July 1980; R v Lewis [1975] 1 NZLR 222, R v Witika (1991) 7 CRNZ 621 at 622: “… an intention to encourage is an essential ingredient.”
[9] R v Schriek [1997] 2 NZLR 139 at 149 (CA).
[10] Ibid. Adams on Criminal Law (online ed.) at [CA66.18 (2)(a)]: “In R v Thomson CA1/05, 14 June 2005, the Court of Appeal was unable to see how a person could encourage the principal party to commit an offence “without that encouragement being communicated one way or another”. Thus there would be no actual encouragement of the principal party “in the commission of the offence” (s 66(1)(c)), if the proffered encouragement did not reach the mind of the principal party or if the principal party was unaware of the encourager’s presence: Schriek (above)”.
[11] At 149.
[12] R v Clarkson [1971] 3 All ER 344. In R v Coney (1882) 8 QBD 534, Hawkins J stated: “It is no criminal offence to stand by, a mere passive spectator of a crime, even of murder. Non-interference to prevent a crime is not itself a crime, but the fact that a person was voluntarily and purposely present witnessing the commission of a crime, and offered no opposition to it, though he might reasonably be expected to prevent and had the power so to do, or at least to express his dissent, might under some circumstances, afford cogent evidence upon which a jury would be justified in finding that he wilfully encouraged and so aided and abetted. But it would be purely a question for the jury whether he did so or not. So if any number of persons arrange that a criminal offence shall take place, and it takes place accordingly, the mere presence of any of those who so arranged it would afford abundant evidence for the consideration of a jury of an aiding and abetting.” R v Loper CA502/99, 22 May 2000: “… merely standing by as an onlooker is not enough”. "Mere presence alone will not be sufficient to make a party an aider and abettor; but it is essential that he should by his countenance and conduct in the proceedings, being present, aid and assist the principals": R v Young (1838) 8 C & P 644 at 652 , per Vaughan J. "In our judgment, before a jury can properly convict a defendant of being a principal in the second degree …, they must be convinced by the evidence that, at the very least, he by some means or other encouraged the participants. To hold otherwise would be, in effect,... to convict a man on his thoughts, unaccompanied by any physical act other than the fact of his mere presence": R v Allan [1965] 1 QB 130 at 138.
[13] Adams on Criminal Law (online ed.) at [CA66.18 (2)(a)].
[14] For the tipping prohibition under s 242, the prosecution would also need to prove that the principal (person A) ought reasonably to have known or believed that B was likely to trade or advise or encourage another person (C) to trade.
[15] Section 241 FMCA.
[16] Section 242 FMCA.
[17] Section 243 FMCA.
[18] R v Singh [2023] NZHC 2741.
[19] At [25].
[20] At [26].