Association 2020 Flashcards
What is S310 CA1961?
310 Conspiring to commit offence
(1)
- Every one who conspires with any person
- to commit any offence,
- or to do or omit,
- in any part of the world,
- anything of which the doing or omission in New Zealand would be an offence,
7 years = if the maximum punishment for that offence exceeds 7 years’ imprisonment,
and
in any other case is liable to the same punishment as if he or she had committed that offence.
(2) This section shall not apply where a punishment for the conspiracy is otherwise expressly prescribed by this Act or by some other enactment.
(3) Where under this section any one is charged with conspiring to do or omit anything anywhere outside New Zealand, it is a defence to prove that the doing or omission of the act to which the conspiracy relates was not an offence under the law of the place where it was, or was to be, done or omitted.
What are the elements of conspiracy?
- conspires
- with any person
- to commit any offence or
- to do or omit, in any part of the world
- anything of which the doing or omission n NZ would be an offence
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. So long as such a design rests in intention only it is not indictable. When two agree t carry it (the intended offence) into effect, the very plot is an act in itself.
What is the essence of a conspiracy, as suggested in Greenfield?
Conspiracy is an agreement to pursue a course of conduct which, if carried out, would amount to the commission of an offence r involve the commission of an offence by one or more parties to the agreement..
Is a person still guilty if they withdraw from an agreement?
Yes however a person can withdraw before the agreement is made.
When is the offence of conspiracy complete?
On the agreement being made with the required intent. No further progression towards the completion of the offence nor further involvement by the parties involved I the agreement is required.
R v Sanders
A conspiracy does not end with the making of an agreement. The conspiratorial agreement continues inspiration and there in existence until it is ended by completion of its performance or abandonment or in any other manner by which agreements are discharged.
What is the actus refs of the offence of conspiracy?
It is the actual agreement which could be physical acts, words, or gestures.
What is the mens rea of the offence of conspiracy?
Only the mental intent is necessary to complete the full offence. There does not need to be the physical intent to commit the full offence.
What are the two different types of intent?
- an intent to commit a deliberate act
- the act or mission must be done deliberately. it must be more than involuntary or accidental - an intent to produce a result
What are some circumstantial evidence from which an offenders intent may be inferred?
- the offenders actions and words before, during, and after the event
- the surrounding circumstances
- the nature of the act itself
R v White
Where you can prove that a suspect conspired with other parties (one or more people) whose identities are unknown, that suspect can still be convicted even if the identity of the other parties is never established and remains unknown.
What is S67 CA1961?
67 Conspiracy between spouses or civil union partners
A person is capable of conspiring with his or her spouse or civil union partner or with his or her spouse or civil union partner and any other person.
Define ‘act’ and ‘omission’.
Act: An action or doing something to bring about a particular result
Omission: the act of excluding or leaving out someone or something. A failure to fulfil a moral or legal obligation.
Under S7 CA1961, jurisdiction is explained. What does that mean for conspiracy?
A person charged with conspiracy need not have been in NZ at the time of the act, omission or event.
It is an offence not only to conspire to commit an offence in NZ but also to conspire to do or omit in any part of the world, anything the doing or omitting of which would be an offence if done or omitted in NZ.Not all acts or omissions forming part of the offence need be committed in NZ, some, perhaps almost all, may occur outside.
Under common law rules, what happens with jurisdiction re conspiracy?
If someone conspires to an offence while being outside of NZ, they are liable if they later enter NZ and they act in continuation of the conspiracy.
What is the defence to conspiracy of an overseas offence?
If the person is able to prove that the act is not an offence under the law of the place where it was to be committed.
What is the admissibility of evidence with conspiracy (hearsay rule)?
Anything a conspirator or party to a joint charge says or does to further the common purpose is admissible against the others involved, this being an exception to the hearsay rule and as such conspirators should be jointly charged.
HOWEVER this does not include explanation made after the common purpose is carried out.
What are some of the offences that contains specific provisions for conspiracy?
Treason, piracy, making false accusations, defeating justice, murder.
When investigating conspiracy and speaking with witnesses, what are 4 things to cover off?
- the ID of the people present at the time of the agreement
- with whom the agreement was made
- what offence was planned
- any acts carried out to further the common purpose
When investigating conspiracy and speaking with suspects, what are 5 things to cover off?
- 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, and
- the intent of those involved in the agreement
- the identity of all people concerned where possible
- whether anything was written, said, or don’t to further the common purpose
Why is it undesirable to lay both the substantive charge and a related conspiracy charge?
- the evidence admissible only on the conspiracy charge may have a prejudicial effect in relation to the other charges
- the judge may disallow the evidence as it will be too prejudicial, ie the jury may assume the defendants guilty knowledge or intent regarding the there charge and not look at the evidence, basing its assumption on the conspiracy charge
- the additional conspiracy charge may unnecessarily complicate and prolong the trial
- where the charge of conspiracy is not founded on evidence or is abuse of process, it may be quashed
- severance may be ordered (each charging document may be heard at seperate trials)
What is S72 CA 1961?
72 Attempts (1) Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his or her object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.
(2) The question whether an act done or omitted with intent to commit an offence is or is not only preparation for the commission of that offence, and too remote to constitute an attempt to commit it, is a question of law.
(3) An act done or omitted with intent to commit an offence may constitute an attempt if it is immediately or proximately connected with the intended offence, whether or not there was any act unequivocally showing the intent to commit that offence.
What are the three elements of an attempt offence?
- intent (mens rea) - to commit an offence
- act (acts reus) - that the did, or omitted to do, something to achieve that end
- proximity - that their act or omission was sufficiently close
Can a person be convicted of ‘attempts’ if it is PHYSICALLY impossible to to commit the offence?
Yes. The offence MUST be legally possible to commit, it need not be physically possible.
Is there an offence for attempted manslaughter?
No. As there is no intent required under the offence of manslaughter and for ‘attempts’ there must be an ‘intent’. An appropriate charge would be attempted murder.
R v Ring
In this case the offenders intent was to steal property by putting his hand 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 action. The remaining elements were also satisfied.
How can intent be inferred when proving ‘attempts’? (example of attempted burglary)
- burglars admit they went to the property with the intent to commit the burglary
- the burglars were found in possession of tools or disguises t the back door of the premises before actually entering
When proving intent, who decides?
Whether intent exists or not is a question of the fact; a question that the jury decides.
Define actus reus
Guilty Act
What is meant by ‘sufficiently proximate to the full offence’ (attempts)?
The accused must have started to commit the full offence and have gone beyond the phase of mere preparation - this is the ‘all but’ rule.
What are some examples of ‘sufficiently proximate to the full offence’ under the American Model Penal Code? (6)
- lying in wait, searching for or following the vic
- enticing the vic t go to the scene of the contemplated crime
- reconnoitring the scene of the contemplated crime
- unlawfully entering a structure, vehicle, or enclosure where the contemplated crime will be committed
- possessing, collecting, or fabricating materials to be employed in the commission of the crime
- soliciting an innocent agent to engage in conduct constituting an element of the crime
R v Harpur
The court may have regarded to the conduct viewed cumulatively up to the point when the conduct in question stops. The defendants conduct may be considered in its entirety. Considering how much remains to be dine is always relevant, though not determinative
The test for proximity has been explained under Simester and Brooks. What are two questions that should be asked when determining the point at which mere preparation may become an attempt?
- Has the offender done anything more than getting himself into a position from which he could embark on an actual attempt? or
- Has the offender actually commenced execution; that is to say, has he taken a step in the actual crime itself?
* If the answer is yes, then there as been an attempt as the matter of the law.
What is meant by “whether in the circumstances it was possible to commit the offence or not”?
A person can be convicted if an offence that was physically impossible to commit, but cannot be convicted of an offence that was legally impossible to commit.
What are the 3 caselaw that relate to ‘impossibility’ under attempts?
- R v Ring
- Higgins v Police
- Police v Jay
Higgins v Police
Where plants being cultivated as cannabis are not in fact cannabis, it is physically, not legally impossible to cultivate such prohibited plants. Accordingly, it is possible to commit the offence of attempting to cultivate cannabis.
Police v Jay
A man bought hedge clippings believing they were cannabis.
R v Donnelly
Where stolen property has been returned to the owner or legal title to any such property have been acquired by any person, it is not an offence to subsequently receive it, even though the receiver may know that the property had previously been stolen or dishonestly obtained.
Once acts are sufficiently proximate to the act, the defendant has no defence that they… (3)
- were prevented by some outside agent from doing something that was necessary to complete the offence; eg. interruption from the Police
- failed to complete the full offence due to ineptitude, inefficiency or insufficient means, eg. not enough explosives to blow up the safe
- were prevented from committing the offence because an intervening event made it physically impossible eg. removal of property before intended theft
What is the function of the judge and jury when proving an offence of ‘attempt’?
Judge: decides that the defendants actions were more than mere preparation - the case then goes to the jury
Jury: decides that the facts are proved beyond reasonable doubt AND that the defendants acts are close enough to the full offence.
When are you unable to charge a person with attempt?
- where the criminality depends on recklessness or negligence, eg. manslaughter
- where an attempt to commit an offence is included within the 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 demand accompanied by the menace that constitutes the offence
S311 CA1961 explains ‘Attempt to commit or procure commission of offence’. What does it outline?
if the maximum imprisonment is life = 10 years
any other case = not more than half the maximum punishment which he would have been liable if he had committed that offence
What is S66 CA1961?
S66 - 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.
(2) Where 2 or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose.
When must participation must have occurred? (conspiracy)
Before or during (contemporaneous with) the commission of the offence and BEFORE the completion of the offence. (if it is afterwards, it becomes accessory after the fact).
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.
What is a principal party? (parties)
Person who satisfies the acts reus and mens rea requirements of the offence. Liable under S66(1)(a).
What is a secondary party? (parties)
Those people whose assistance, abetment, incitement, counselling or procurement is sufficient under S66(1)(b)(c)or(d)
They do not necessarily need to be present when the offence is committed.
When there are multiple offenders, what are the two methods by which offenders may be considered to be principals. (parties)
Method 1: Each offender satisfies elements of offence committed
- each principal offenders may, separately, satisfy the necessary elements of the relevant offence committed.
Method 2: Each offender separately satisfies part of the acts reus
- under S66(1)(a) each offender may separately satisfy part of the acts reus and when combined with the actions of others, complete the acts reus requirement of the offence
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).
Define ‘aids’ (parties)
To assist in the commission of the offence, either physically or by giving advice and information.
Larkins v Police
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 some examples of ‘assistance’? (parties)
- keeping lookout for someone committing a burglary
- providing a screwdriver to someone interfering with a motor vehicle
- telling an associate when a neighbour is away from their house so it can be burgled
Define ‘aiding by omission’ (parties)
It arises where A, who has legal duty to act and a right or power of control over B, fails to observe or discharge the duty by exercising that control to prevent B committing an offence.
Define ‘abets’ (parties)
To instigate, encourage, or urge another person to commit the offence.
What is ‘passive acquiescence’ and how may it be considered as abetting? (parties)
If there is a special relationship between that person and the principal offender or where they owe a legal duty to the victim or to the general public.
Ashton v Police
An example of a secondary party owing a legal duty to a third person or to the general public is a person teaching another person to drive. That person is, in New Zealand, under a legal duty to take reasonable precautions, because under S156 of the CA1961 he is deemed t be in charge of a dangerous thing.
R v Russell
The court held that the accused was morally bound to take active steps to save his children, but by his deliberate abstention from doing so, and by giving the encouragement and authority of his presence and approval to his wife act, he became an aider and abettor and thus a secondary offender.
Define ‘incites’ (parties)
To rouse, stir up, stimulate, animate, urge, or spur a person to commit the offence. Like a sports fan.
Define ‘counsels’ (parties)
To intentionally instigate the offence by advising a person(s) nohow best to commit an offence, or planning the commission of an offence for another person(s). Counselling may also mean ‘urging someone to commit an offence’, in which case it will overlap incitement.
There is no specific need for the person offering advice or assistance to be completely familiar with the offence intended.
