1. Evolution Of The Offence Flashcards
What is Mens Rea?
The guilty mind
How does Mens Rea typically present?
As “intention” or “recklessness.”
Statutes typically set out the required culpability level
What are the two types of Intention?
- Deliberate Act - done deliberately, not accidental, AND
- Intent to produce a certain result - “aim, purpose, result” (Simester & Brookbanks)
What are the two types of recklessness?
- Subjective recklessness - foresight of dangerous consequence that could happen with intent to continue regardless of risk
- Objective recklessness - someone commits an act where an obvious risk a prohibited event will result. The accused has either given no thought to the possibility of risk, or has recognised some level of risk and continued.
Case law:
Cameron v R
Recklessness is established if:
a) the defendant has recognised that there was a real possibility that:
(i) his/her actions would bring about the proscribed result; and/or
(ii) the proscribed circumstances existed; and
(b) having regard to that risk those actions were unreasonable.
Case law:
R v Tipple
Recklessness requires the offender know of, or have conscious appreciation of the relevant risk and a “deliberate decision to run the risk.”
What is Actus Reus?
The act or ommission.
Must be voluntary.
What is the Causal Link/Chain of Causation?
Links the Actus Reus to the consequence.
I.e. the outcome/consequence would not have happened “but for” the actions of the accused.
“But for” test.
What effect does an intervening act have on the causal link?
None. Generally speaking, after the act has been completed, any intervention will not break the causal link.
Do a victim’s health problems that cause a more severe consequence lessen the culpability of the accused?
No. Defendants must “take their victims as they come.”
I.e. will be culpable for any injuries incurred to the Victim regardless of pre-existing conditions.
What is the “Golden thread” of criminal law?
The defendant is presumed innocent until proven guilty.
s25(c) New Zealand Bill of Rights Act 1990.
What is the standard of proof on prosecution in criminal cases?
Prosecution needs to prove “beyond reasonable doubt” that the defendant committed the actus reus and had the requisite mens rea.
Also need to disprove beyond reasonable doubt any defences raised.
Traditionally, what are the two types of defences that can be raised?
- Statutory defences (specifically set out in the Crimes Act 1961)
- Common law defences (uncodified, although preserved under s20(1) of the Crimes Act 1961.
What are the five statutory defences to a crime?
- Infancy (s21)
- Defence of self or another (s48)
- Defence of property (s48)
- Insanity (s23)
- Compulsion (s24)
*All sections are from the Crimes Act 1961
What are the six Common Law defences?
- Impossibility - complying with the law is impossible.
- Necessity - had to choose between two evils and the lesser involved breaking the law.
- Consent - although can’t consent to assault where actual bodily harm was intended or caused. Also does not cover murder (s63 Crimes Act 1961)
- Intoxication - not a defence exactly, although may make it harder to prove Mens Rea.
- Mistake - if ingredients of a crime require intention/knowledge/subjective recklessness, the accused can be acquitted if the state of mind was absent at the time of conduct.
- Sane Automatism - Action without conscious volition which is not caused by a disease of the mind (i.e. sleep walking)
What is Conspiracy?
An agreement between two or more people to commit an offence.
s310 Crimes Act 1961
What is the punishment for Conspiracy?
Depends on the offence:
<7 years - same punishment as the crime that would have been carried out if they were successful.
> 7 years - up to a 7 year maximum.
What is the Mens Rea associated with Conspiracy?
- Intent of those involved to agree.
- Intent that the relevant course of conduct should be pursued.
What is the Actus Reus of Conspiracy?
The agreement.
When can you withdraw from Conspiracy?
You can withdraw up until the agreement is made. Once the agreement is made the offence has been committed.
What is the jurisdiction of NZ Courts related to international Conspiracies?
Any offence planned to be committed in NZ if at least one act/ommission occurs in NZ.
When conspiring to commit an offence from within NZ, intending to carry it out in a different country - although must also be an offence in that different country.
Case law:
Mulcahy v R
Conspiracy is defined as the agreement between two or more to do an unlawful act, or to do a lawful act by unlawful means.
Case law:
R v Sanders (1)
Conspiracy does not end upon agreement, it continues until carried out, abandoned, or discharged by other means.
Case law:
R v Sanders (2)
Regarding NZ Court Jurisdiction
If even one act/ommission contributing to the offence of conspiracy occurs within NZ, then it is sufficient to charge the accused.
What is the definition of Attempts?
With intent to commit an offence, does or omits to do any act for the purpose of achieving their object.
s72 Crimes Act 1961
What must you prove to prosecute for Attempts? (3)
- Intent - to commit an offence.
- Act - that they did/omitted something to achieve that end.
- Proximity - that their act/ommission was SUFFICIENTLY PROXIMATE (close)
If charged with a full offence, but it is deemed by the jury that there was insufficient evidence to prove, can the defendant automatically be convicted of attempts instead? (If sufficient grounds to prove attempts charge)
Yes - s149 Criminal Procedure Act 2011
If a defendant is charged with attempts, but the evidence proves they committed the full offence, can they be convicted instead of the full offence?
No. If charged with attempts can not be convicted of full offence even if the evidence to support it is there. Can’t withdraw the successful attempts charge to replace with the full offence either.
s150 Criminal Procedure Act
What must you prove with regards to intent for a successful charge of attempts?
Must prove intent to commit the offence - can’t be charged with attempts in reckless or unintentional grounds (I.e. can’t be charged with attempted manslaughter).
Nor can you be charged with attempts if the attempt is actually part of the offence in itself (I.e. assault).
What is “factually impossible” and what is the effect on criminal liability?
An act is factually/physically impossible if the act amounts to an offence, but the suspect is unable to commit it due to interruption, ineptitude or other circumstances outside their control.
Can still be charged with attempts due to criminal intent.
What is “legally impossible” and what is its effect on criminal liability?
Where the act would not be an offence. Suspect can not be charged with attempts, even with criminal intent.
I.e. R v Donnelly - stolen suitcase retrieved and returned to rightful owner by Police, prior to the receiver attempting to pick it up. Can’t charge as the goods are no longer stolen - legally impossible.
Explain the “all but” rule when it comes to attempts.
The accused must have started to commit the full offence and gone beyond the phase of mere preparation.
I.e. must have completed “all but” the offence.
What is the judges role in an attempts charge?
Judges role to determine whether the accused has left the preparation stage and was trying to commit the full offence.
If decided it does, then goes to trial.
What is the jury’s role in an attempts charge?
Determine whether the actus reus and requisite Mens rea has been proven beyond reasonable doubt.
Also to determine if defendants actions were close enough (proximate) to the full offence.
What defences do the accused lose once proven they were sufficiently proximate to the intended offence? (3)
- Prevented by some outside agent from completing the full offence (I.e. Police).
- Failed to complete the full offence due to ineptitude/inefficiency/insufficient means.
- Prevented from committing the offence because an intervening event made it physically impossible (I.e. removal of property before it was stolen).
Case law:
R v Ring
Can be convicted of an attempt event if an offence is factually/physically impossible.
(Attempted to steal from empty pockets).
Case law:
R v Harpur
When assessing conduct there must be a full evaluation in terms of time place and circumstance.
Acts viewed in isolation may appear only preparatory, but when viewed collectively amount to an attempt.
Case law:
R v Donnelly
Legally impossible acts can not be charged with attempts.
Stolen suitcase returned to rightful owner by Police before reliever could attempt to take it. Goods were no longer stolen, unable to be convicted.
What is s66(1) of the Crimes Act 1961?
Parties to an offence.
(1) Everyone is party to and guilty of an offence who:
a) Actually commits the offence; or
b) Does/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.
In terms of s66(1) who is considered the primary and who is the secondary party?
Primary party is the one who actually commits the act/ommission [s66(1)(a)]
Secondary party is the one who supports the primary BEFORE OR DURING the act/ommission [s66(1)(b-d)].
What is “aids” in regards to being a party to an offence?
To assist in the commission of the offence - either physically or by giving advice.
What is “abets” in regards to being a party to an offence?
To instigate, encourage, urge another person to commit the offence.
Presence and inaction alone can amount to “abets” if a special relationship exists (parents, police etc.)
What is “incites” in regards to being a party to an offence?
To rouse, stir up, animate, urge or spur on a person to commit an offence.
What is “counsels” in regards to being a party to an offence?
Intentionally instigate by advising how best to commit the act or by planning.
What is “procures” in regards to being a party to an offence?
Requires that the secondary party deliberately cause the principal party to commit the offence (I.e. hiring a hitman).
What is s66(2) of the Crimes Act 1961?
Parties to an offence.
(2) where two or more people form a common intention to prosecute any unlawful purpose, and to assist each other therein, each is a party to every offence committed by any one of them in the prosecution of their common purpose if the commission of that offence was known to be a PROBABLE CONSEQUENCE of the prosecution of the common purpose.
What is “probable consequence” in regards to being a party to an offence?
A subjective appreciation on the part of the offender - must actually forsee that their co-offender will commit another offence in pursuit of their common purpose.
Sufficient to show that they knew there was a real risk this could occur.
What’s an “innocent agent” in regards to being a party to an offence?
Someone unaware of the planned schemes and the significance of their actions.
Innocent agents carry no liability.
What are the four requirements to withdraw from being a party to an offence?
- Notice of withdrawal in words or actions
- Unequivocal withdrawal
- Communicate the withdrawal to the principal parties.
- Taking all reasonable steps to undo the effects of the party’s previous actions.
Can a secondary party be charged with an offence without the primary/principal party being charged?
Yes.
Case law:
R v Betts & Ridley
An offence where no violence is contemplated (by secondary) and the primary uses violence carrying out the common aim, the secondary is not liable for the violence used.
Case law:
R v Renata
Parties
Where the principal offender can’t be ID’d, it is sufficient to prove each party must have been either the primary or secondary
I.e. group bashing resulting in death of the victim - unsure who threw the killing punch though.
Case law:
Larkins v Police
Regarding “aiding”
Not necessary to show the principal party knew they were being assisted, just that actual assistance occurred.
Case law:
R v Russell
Where a special relationship exists with a duty to intervene (Police, Army, Parents, Security etc) failure to do so may amount to abets.
What is the definition of “Accessory after the fact”?
Knowing someone is party to an offence, received, comforts, assists, tampers or suppresses evidence to enable them to avoid arrest, escape arrest or avoid conviction.
s71 Crimes Act 1961
What must you prove for a charge of accessory after the fact? (3)
Knowledge
- an offence has been committed
- the person they are assisting is party to the offence.
Actus reus
- Receives, comforts, assists, tampers with evidence, actively suppresses evidence (only requires one of these)
Mens Rea
With intent to help the party:
- avoid arrest, or
- escape after arrest, or
- avoid conviction
Case law:
R v Mane
To be considered an accessory, the acts done by the person must be AFTER the completion of the prinicpal offence
Case Law:
R v Crooks
“Knowledge” means having no real doubt the person assisted was a party to the relevant offence.
I.e. mere suspicion that someone was party to the offence is not sufficient.
Case law:
R v Briggs
Knowledge may be inferred from “wilful blindness” - Not making enquiries that would confirm the suspected truth.
Give an example of “harbours” in relation to accessory.
Provides shelter to.
Give an example of “comforts” in relation to accessory.
Accommodation/shelter/food/clothes
Give an example of “assists” in relation to accessory.
Lookout/transport/provide authorities with false information/advising/providing information, material or services.
Give an example of “tampers with” in relation to accessory.
Alters evidence against offender
Give an example of “actively surpresses evidence” in relation to accessory.
Conceals/destroys/hides evidence.
Define “Knowledge”.
Cite the relevant source.
Knowledge mean “correctly believing”
Simester and Brookbanks
Can a person conspire with their spouse/civil union partner?
Yes - s67 Crimes Act 1961
Case law
R v Gemmell
The essence of conspiracy is the agreement to commit the substantive offence.
It need not be carried out to its fruition, but there must be an intention to take those steps.
Case law
R v White
Where you can prove a suspect conspired with other, unidentified parties, you can still charge that suspect with conspiracy (despite not knowing the other parties).
