Warren Brookbanks “The Defence Of Withdrawal – A Unitary Or Bifurcated Construct?” [2016] NZCLR 62

Abstract

Recent judicial commentary in New Zealand and in England has sought to define the parameters of the common law defence of withdrawal. While the approach of the courts has been towards the view that withdrawal is a unitary construct applicable to the two principal modes of parties liability, the thrust of this article is to suggest that there may be two discrete forms of the withdrawal defence, making withdrawal a bifurcated concept. It is argued that it is possible to discern a substantive withdrawal defence, operating in a temporal space close to the commission of the intended offence, and more directly concerned with the conditions of culpability, and a pre-emptive withdrawal defence, operating in the very early stages of a criminal enterprise, and focussing more on actus reus elements of complicity, in particular causation. The article examines the implications of this binary model of withdrawaland questions whether the possibility of a second withdrawal defence should now berecognised by the common law.