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Common Purpose and Conspiracy Liability in New Zealand: Criminality by Association?

Julia Tolmie is an Associate Professor at the University of Auckland Faculty of Law. Julia researches and teaches in the areas of criminal law and feminist legal theory. 

Kris Gledhill is an Associate Professor and Director of Clinical Legal Education at Auckland University of Technology Law School. His teaching and research is in criminal law, human rights law, experiential education and also the law governing detained people. 

Case law interpreting the common purpose aspect of party liability and the law on conspiracy in New Zealand (as set out in ss 66(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.

(2016) 34(2) Law in Context p58

   
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