Common purpose and conspiracy liability in New Zealand: Criminality by association?

Abstract

Case law interpreting the common purpose aspect of party liability and the law on conspiracy in New Zealand (as set out in ss66(2) and 310 of the Crimes Act 1961 (NZ)) has created a situation of over-reach. Individuals who have a limited relationship to criminality carried out by another or in a group context are potentially caught by extended liability rules that can lead to a poor association between the moral culpability of a defendant and serious criminal liability. Indeed, it is suggested that these forms of liability risk guilt by association rather than on the basis of individual positive fault: we suggest that New Zealand's judges, following and sometimes expanding upon interpretations from other common law jurisdictions, have lost sight of the core concept of individual fault.