Association 006 Flashcards
How is conspiracy defined in Mulcahy v R?
A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means.
What was found in R v Sanders regarding when a conspiracy ends?
A conspiracy does not end with the making of the agreement. The conspiratorial agreement continues in operation and therefore in existence until it is ended by completion of its performance or abandonment or in any other manner by which agreements are discharged.
What does s67 say about who can commit a conspiracy?
s67, CA 61
A husband and wife or civil union partners can commit conspiracy.
What was found in R v White regarding the people involved in a conspiracy?
The conspiracy may be by a person who could not commit the crime and where you can prove that a suspect conspired with other parties whose identities are unknown, that suspect can still be convicted even if the identity of the other parties is never established and remains unknown.
Churchill v Walton
The conspirators need not know it is an offence but must know the act is unlawful.
How is knowledge defined in Simester and Brookbanks?
Knowing means ‘knowing’ or ‘correctly believing’. The defendant may believe something wrongly, but cannot ‘know’ something that is false.
How is knowledge defined in R v Crooks?
Knowledge means actual knowledge or belief in the sense of having no real doubt that the person assisted was a party to the relevant offence. Mere suspicion of their involvement in the offence is insufficient.
What was held in R v Briggs - wilful blindness.
Knowledge may also be inferred from wilful blindness or a deliberate abstention from making inquiries that would confirm the suspected truth.
For the purposes of the liability for Accessory After the Fact, how is Party defined in the Crimes Act? What are the elements?
Party - s66(1), CA 61
Defined as being anyone who
a) Actually commits the offence
b) Does or omits an act for the purpose of aiding any person to commit the offence
c) Abets any person in the commission of the offence
d) Incites, counsels, or procures any person to commit the offence
R v Mane
To be considered an accessory the acts done by the person must be after the completion of the offence.
For the purposes of the liability for Receiving when is receiving complete according to the Crimes Act?
Receiving
Receiving is complete as soon as the offender has, either exclusively or jointly with the thief or any other person, possession of, or control over, the property or helps in concealing or disposing of the property,
s246(3), CA 61
R v Donnelly as it appears in the element of ‘Receives’ in the liability for Receiving.
R v Donnelly
Where stolen property has been physically recovered by the Police it is legally impossible to commit the crimes of receiving or attempted. It must be legally possible to receive the property.
R v Lucinsky
The property received must be the property stolen or illegally obtained (or part thereof) and not some other item for which the illegally obtained property had been exchanged or which are the proceeds.
Discuss the element ‘Stolen’ in the liability for Receiving.
Stolen
s219(1), CA 61
Dishonestly and without claim of right, taking any property with intent to deprive any owner permanently of that property or of any interest in that property.
How is obtains defined in the Crimes Act?
Obtains
s217, CA 61
Means obtain or retain for himself or herself or for any other person.
R v Kennedy as it appears in the liability for Receiving.
R v Kennedy
A guilty knowledge that the thing has been stolen or dishonestly obtained must exist at the time of receiving.
When is a conspiracy complete?
The offence is complete on the agreement being made, accompanied by the required intent.
List three types of circumstantial evidence from which intent may be inferred.
- offender’s actions and words before, during and after the event
- surrounding circumstances
- nature of the act itself
How does the Oxford Dictionary define ‘Act’?
To take action or do something, to bring about a particular result.
How does the Oxford Dictionary define ‘Omission’?
The action of excluding or leaving out someone or something, a failure to fulfil a moral or legal obligation.
In what situation could someone conspiring outside of NZ be charged with conspiracy in NZ courts?
If they were later physically present in NZ and there act in continuance of the conspiracy.
In what situation could someone conspiring to commit an offence overseas still be charged under the Crimes Act? What would be the defence?
If they conspire to commit anything, the doing or omitting of which would be an offence if done or omitted in NZ.
They have a defence if they can prove that the act is not an offence under the law of the place where it was to be committed.
What is the exception to the hearsay rule in regards to the admissibility of evidence for a Conspiracy charge? What effect does this have on how people should be charged?
Anything a conspirator or party to a joint charge says or does to further the common purpose is admissible against the others involved. Therefore conspirators should be jointly charged.
What five points should be covered when interviewing conspiracy suspects?
- the existence of an agreement to commit an offence
-OR the existence of an agreement to omit to do something that would amount to an offence - the intent of those involved in the agreement
- the identity of all people concerned where possible
- whether anything was written, said or done to further the common purpose
Explain the liability of a person who agrees to commit an offence with another person but then withdraws from the agreement before the completion of the intended offence.
A person withdrawing from the agreement is still guilty of conspiracy, as are those people who become party to the agreement after it has been made. However a person can effectively withdraw before the actual agreement is made.
What are three groups of offences that do not allow for a prosecution in respect of an attempt?
Offences where:
- the criminality depends on recklessness or negligence, eg. manslaughter
- an attempt to commit an offence is included within the definition of that offence, eg. assault
- the offence is such that the act has to have been completed in order for the offence to exist at all. Eg. Demanding with menaces (it is the demand accompanied by menace that constitutes the offence)
What three elements must apply for attempts?
- intent (mens rea) - to commit an offence
- act (actus reus) - that they did, or omitted to do, something to achieve that end
- proximity - that their act or omission was sufficiently close
Quote the definition of attempts in the Crimes Act.
s72(1), CA 1961
Everyone who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.
Summarise the case law that is significant when considering the issue of inferring intent from an act (in relation to an attempt).
R v Ring
In this case the offender’s intent was to steal property by putting his hands into the pocket of the victim. Unbeknown to the offender the pocket was empty. Despite this he was able to be convicted of attempted theft, because the intent to steal whatever property might have been discovered inside the pocket was present in his mind and demonstrated by his actions. The remaining elements were also satisfied.
Explain the rule used to decide whether a defendant’s actions are sufficiently proximate.
Effectively the defendant must have started to commit the full offence and have gone beyond the phase of mere preparation - this is the “all but” rule.
What was held in R v Harpur in relation to Attempts?
The Court may have regard to the conduct viewed cumulatively up to the point where the conduct in question stops. The defendant’s conduct may be considered in its entirety. Considering how much remains to be done is always relevant, though not determinative.
What are the two questions suggested by Simester and Brookbanks in relation to the proximity test?
- Has the offender done anything more than getting himself into a position from which he could embark on actual attempt?
OR - Has the offender actually commenced execution; that is to say has he taken a step in the actual offence itself?
Briefly outline the three pieces of case law in relation to an act being physically or factually impossible.
R v Ring - put his hand in the pocket of a woman but there was nothing to be stolen
Higgins v Police - cultivated plants that weren’t cannabis so attempted to cultivate cannabis
Police v Jay - bought hedge clippings thinking they were cannabis
Outline the role of judge and jury in regards to Attempts.
Judge must decide whether defendant has left preparation stage and was already trying to effect completion of the full offence. If Judge decides defendant’s actions were more than mere preparation the case goes to jury.
Jury decides whether facts presented by Crown have been proved beyond reasonable doubt then whether defendant’s actions are close enough to full offence. Jury must decide whether it’s beyond reasonable doubt that the defendant intended to commit full offence.
Outline penalties for Attempts.
If max punishment is life = 10yrs
Everything else = half max punishment
True or false? Where a person is charged with the full offence but are found guilty only of an attempt they may be convicted of the attempt.
TRUE
True or false? Where a person is charged with the attempt but the evidence establishes that they committed the full offence they can be convicted of the full offence.
FALSE
In each case of charging a person with being a party to an offence, what needs to be proved?
- Identity of the defendant
- An offence has been successfully committed
- The elements of the offence (s66(1)) have been satisfied
When must participation have occurred for someone to be considered a party to an offence?
Before or during the commission of the offence and before the completion of the offence
R v Pene
A party must intentionally help or encourage - it is insufficient if they were reckless as to whether the principal was assisted or encouraged.
There are two methods by which multiple offenders may be considered to be principals. What are those methods?
- Each offender satisfies elements of the offence committed. They separately satisfy the necessary elements of the offence committed. No need to refer to s66(1).
- Each offender separately satisfies part of the actus reus. Their actions must also be accompanied by the mens rea.
Summarise R v Renata.
Three offenders beat the victim to death in the car park of a tavern. The prosecution was unable to establish which blow was the fatal one or which of the three offenders administered it.
R v Renata
The court held that where the principal offender cannot be identified it is sufficient to prove that each individual accused must have been either the principal or a party in one of the ways contemplated by s66(1).
Larkins v Police (not verbatim)
While it is unnecessary that the principal should be aware that he or she is being assisted, there must be proof of actual assistance.
What are the two pieces of case law that relate to legal duty and special relationship?
Legal duty = Ashton v Police: a person teaching another person to drive is a secondary party with a legal duty owing to the general public.
Special relationship = R v Russell: A man has a special relationship with his wife and children and is morally bound to take active steps to save his children.
Define ‘aid’ in the context of party to an offence.
To assist in the commission of the offence, either physically or by giving advice and information.
Define ‘abet’ in the context of party to an offence.
To instigate or encourage; to urge another person to commit the offence.
Define ‘incites’ in the context of party to an offence.
To rouse, stir up, stimulate, animate, urge or spur on a person to commit the offence.
Define ‘counsel’ in the context of party to an offence.
To intentionally instigate the offence by advising a person on how best to commit an offence, or planning the commission of an offence for another person. May also mean urging someone to commit an offence (overlap with incitement).
Define ‘procure’ in the context of party to an offence.
Setting out to see that something happens and taking the appropriate steps to ensure that it does.
R v Betts and Ridley
An offence where no violence is contemplated and the principal offender in carrying out the common aim uses violence, a secondary offender taking no physical part in it would not be held liable for the violence used.
