Association Offences Flashcards Preview

CIB Modules SF > Association Offences > Flashcards

Flashcards in Association Offences Deck (65)
Loading flashcards...
1

Conspiracy
- Liability

Section 310, Crimes Act 1961
• 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.

* Punishment: imprisonment for a term not exceeding 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 had committed that offence.

2

Section 310(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

Conspiracy
- defence

Section 310(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.

4

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 to carry it (the intended offence) into effect, the very plot is an act in itself ….”

5

R v Sanders

“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”.

6

The mens rea (mental intent) necessary for a conspiracy is:

• an intention of those involved to agree, and
• an intention that the relevant course of conduct should be pursued by those party to the agreement.

7

The actus reus (physical element) of conspiracy

the agreement between two or more people to put their common design into effect. The agreement must be made before the commission of the acts which make up the full offence and the object of the conspiracy.

8

R v Mohan

“a decision to bring about, in so far as it lies within the accused’s power, the commission of the offence ...”

9

R v Waaka

A “fleeting or passing thought” is not sufficient; there must be a “firm intent or a firm purpose to effect an act”.

10

Circumstantial evidence from which an offender’s intent may be inferred can include:

• the offender’s actions and words before, during and after the event
• the surrounding circumstances
• the nature of the act itself.

11

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.

12

Conspiring with a spouse or partner

Section 67, Crimes Act 1961

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.

13

Act
- Def

To take action or do something, to bring about a particular result
- Oxford Dictionaries

14

Omission
- Def

The action of excluding or leaving out someone or something, a failure to fulfil a moral or legal obligation
- Oxford Dictionaries

15

Jurisdiction
- Conspiracy

Section 7, Crimes Act 1961
For the purpose of jurisdiction, where any act or omission forming part of any offence, or any event necessary to the completion of any offence, occurs in New Zealand, the offence shall be deemed to be committed in New Zealand, whether the person charged with the offence was in New Zealand or not at the time of the act, omission, or event.

16

Conspiracy
- Witness statements cover

Interview and obtain statements from witnesses covering:
• the identity 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.

17

Conspiracy
- Suspect interviews cover

Interview the people concerned, and obtain statements, to establish:
• 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 done to further the common purpose.

18

Generally, charges of conspiracy should not be filed in situations where the specific (substantive) offence can be proved. Why?

Laying both a substantive charge and a related conspiracy charge is often undesirable because:
• The evidence admissible only on the conspiracy charge may have a prejudicial effect in relation to other charges.
• The judge may disallow the evidence as it will be too prejudicial, ie the jury may assume the defendant’s guilty knowledge or intent regarding the other charge and not look at the evidence, basing its assumption on the conspiracy charge.
• The addition of a conspiracy charge may unnecessarily complicate and prolong a trial.
• Where the charge of conspiracy is not founded on evidence or is an abuse of process, it may be quashed.
• Severance may be ordered. This means that each charging document may be heard at separate trials.

19

Withdraw from conspiracy

You can effectively withdraw from a conspiracy before an agreement is reached, but not following the agreement to commit the intended offence.

20

Conspiracy
- independent evidence

There must be independent evidence of the conspiracy for a conspirator’s evidence to be admitted as evidence against his or her co-conspirator(s).

21

Attempting to commit an offence
72(1)

Every one 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.

22

Attempting to commit an offence
72(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.

23

Attempting to commit an offence
72(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.

24

Attempts
- Case law has established the following three conditions that must apply for an ‘attempt’ conviction to succeed. What are they?

• 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 ommission was sufficiently close

25

Attempts
- Intent must be established

The requirement for “intent” in section 72(1) suggests that only an intention to commit the offence will be sufficient and that there cannot be an attempt where an offence is defined solely in terms of recklessness or negligence.
(i.e. no offence of attempted manslaughter)

26

R v Ring

In this case the offender’s 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 actions. The remaining elements were also satisfied.

27

Attempts
- A question of fact

Whether that intent exists or not is a question of fact; a question that the jury decides.

28

"all but" rule

Generally, to prove an attempt the accused must have done or omitted to do some act(s) that is/are sufficiently proximate (close) to the full offence. Effectively, the accused must have started to commit the full offence and have gone beyond the phase of mere preparation

29

R v Harpur

[The Court may]”have regard to the conduct viewed cumulatively up to the point when 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.”

30

Attempts
- The test for proximity

• 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 offence itself?