Associated Offences Flashcards
Liability - Conspiracy
Conspiracy
Section 310(1) CA1961
Penalty 7 years if exceeds 7 years, matches if under 7 years
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 NZ would be an offence
Can a person be charged with conspiracy if they enter an agreement but are incapable of carrying out the substantive offence?
Yes
Conspiracy - MULCAHY v R - Conspires
An agreement by 2 or more people to do an unlawful act or to do a lawful act by unlawful means
Conspiracy - R v WHITE - 2 or more people
Where you can prove a suspect conspired with another that suspect can still be convicted even if the others identity is never established
Conspiracy - R v SANDERS - ways Conspires ends
Conspiracy does not end with the making of an agreement
The agreement continues until it is ended by completion of its
Performance or
Abandonment or
The agreement is discharged
Conspiracy - when is the offence complete?
On the agreement being made, accompanied by the required intent
Doesn’t require progression toward its completion
Conspiracy - 5 points when interviewing suspects
1) Existence of agreement to commit an offence
2) Existence of agreement to omit or do something amounting to an offence
3) The intent of those involved in agreement
4) Identity of people involved
5) Anything written, said or done to further common purpose
When is a person involved in a conspiracy?
A person is involved in a conspiracy when he/she agrees with another party to commit another offence or omission
Conspiracy - Withdrawal
A person can only withdraw before the agreement is made not to be liable. If the withdraw after the agreement is made they are still liable for conspiracy
What is the mens rea and the actus reus in a conspiracy?
Requires both mens rea and actus reus
Mens rea requires 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. The intent must be to carry out the full offence
Actus reus is the actual agreement by 2 or more to carry out the illegal conduct. Physical acts, words or gestures is considered the actus reus
What is intent and how is it proved?
Intention to commit an act and an intention to get a specific result
Proved by circumstantial evidence from where the intent can be inferred:
Actions and words before, during and after
Surrounding circumstances
Nature of the act itself
Conspiracy - What is Section 67 CA1961?
A person can conspire with their spouse or civil union partner (AND additionally any other person)
Conspiracy to commit offence overseas
Still an offence unless they can prove that it is not an offence in the place where it was to be committed
Conspiracy - Admissibility of evidence
Conspirators should be jointly charged as anything said or done to further the common purpose is admissible against the others involved
Conspiracy - 4 points when interviewing witnesses
1) ID of people present at time of agreement
2) With whom the agreement was made
3) What offence was planned
4) Any acts carried out to further the common purpose
Conspiracy - why is laying a substantial charge undesirable?
Laying both a substantive charge and a related conspiracy charge is often undesirable because:
- Evidence for conspiracy charge may be prejudicial to other charges
- Judge may disallow evidence as it will be too prejudicial ie jury assumes guilt
- Addition of conspiracy charge may complicate or prolong trial
- May be quashed if conspiracy not founded on evidence or an abuse of process
- Severance may be ordered causing separate trials
Liability - Attempts
S72(1) CA1961
Penalty (S311): Life = 10years, others = no more than half of maximum
Everyone
Having an intent to commit an offence
Does or omits an act for the purpose of accomplishing his/her object
What are the 3 conditions that must apply for an attempt?
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
Additionally there is a requirement that it must be legally possible to commit the offence
What is needed to prove an attempt?
It must be shown that the accused’s intention was to commit the substantive offence
Attempts - Proving intent
Intent of the offenders may be inferred from the act itself (what they did) and/or admissions or confessions
Whether that intent exists or not is a question of fact; a question that the jury decides
Attempts - R v Ring
Offenders intent was to steal property by putting his hand in a pocket, the pocket was empty and he was convicted of attempted theft because the intent to steal was present in his mind as demonstrated by his actions
What does 72(3) CA1961 state when it comes to sufficiently proximate
The accused must have done or omitted to do some act that is sufficiently proximate to the full offence. The accused must have started to commit the full offence and have gone beyond the phase of mere preparation
Examples of attempts (American Model Penal Code)
- Lying in wait
- Enticing the victim to go to the scene
- Recon of the scene
- Unlawfully entering a structure, vehicle or enclosure of where the crime will be committed
- Possessing, collecting or fabricating materials to be used in the crime
- Soliciting an innocent agent to engage in conduct constituting an element of the crime
Attempts - R v Harpur
The Court may have regard to the conduct viewed cumulatively up to the point when the conduct inn question stops. The defendants conduct may be considered in its entirety. Considering how much remains to be done is always relevant though not determinative
Independent acts may look as preparatory, when viewed collectively can make up a criminal attempt
Attempts - Under S72(2) states proximity is a question of law - who makes the decision?
Judge based on the assumption that the facts of the case are proved
What are elements that help determine proximity
There is no clear definition. When determining proximity you must take into consideration fact, degree, common sense and the seriousness of the offence. Combined or each on a case-by-case basis
Attempts - Define impossibility
A person can be convicted of an offence that was physically impossible to commit but cannot be convicted of an offence that was legally impossible to commit
Define physically and factually impossible referring to R v Ring, Higgins V Police and Police v Jay
The suspect is unable to commit it due to interruption, ineptitude or any other circumstances beyond their control
R v Ring - Hand in pocket, pocket empty
Higgins v Police - Where plants being cultivated as cannabis are not cannabis, it is physically, not legally, impossible to cultivate such plants. Can be convicted of attempted cultivate cannabis
Police v Jay - A man bought hedge clippings believing it was cannabis
Define legally impossible referring to R v Donnelly
What is attempted must be an offence despite the persons belief at the time
R v Donnelly - Where stolen property has been returned to the owner or legal title to any such property has 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
When is an attempt complete?
An attempt is complete even if the defendant changes their mind or makes a voluntary withdrawal after completing an act that is sufficiently proximate to the intended offence
Once sufficiently proximate there is no defence if they:
- Were prevented by outside agent eg interruption from Police
- Failed to complete full offence due to ineptitude, inefficiency or insufficient means eg not enough explosives
- Were prevented because of an intervening event eg property removed prior to theft
What is the function of the judge and jury in an attempts case
The judge must decide whether the defendant had left the preparation stage and was trying to effect the completion of the offence. This will then move to the jury. The jury must decide if the facts prove beyond reasonable doubt and if they do if the acts are close enough to the full offence. The jury must then decide if the mens rea has been proved beyond reasonable doubt
When are you unable to charge with an attempt?
- The criminality depends on recklessness or negligence eg manslaughter
- An attempt is included within the definition of the offence eg assault
- The act has to have been completed for the offence to exist at all eg demands with menace
Parties to - S66(1) and 66(2) CA1961
1) Everyone 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 people form a common intention to prosecute any unlawful purpose each of them is party to every offence committed by any one of them in the prosecution of the common purpose if that offence was known to be a probable consequence
What do you need to prove for Parties?
You must prove
- The identity of the defendant
- The offence has been committed
- The elements of S66(1) have been satisfied
When does participation have to occur in a Parties offence?
Participation must have occurred before or during the offence and before the completion of the offence
Parties - 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
Parties - R v Renata
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)
Does a secondary party have to be present?
No eg a person leaves a door unlocked so a burglary can occur
Difference between principal party and secondary party
Principal party is liable under S66(1)(a) where the mens rea and actus reus is satisfied. Can be more than one principal offender
Secondary party are those who assist, abet, incite and counsel as per S66(1)(b),(c),(d) despite them not actually committing the offence
Parties - Define aids
Means to assist in the commission of the offence, either physically or by giving advice and information. Does not need to be present (R v Turanga)
Parties - 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
Parties - Define Abets
Means to instigate or encourage, that is to urge another person to commit the offence
Passive acquiescence may be considered abetting if they are present and do nothing to prevent an offence unless there is a special relationship with the principal offender or they owe a legal duty to the victim or to the general public
Parties - Define legal duty as part of abets
Ashton v Police
Legal duty to act and a right or power of control over the principal offender.
Ashton v Police - Legal duty to a third person or the general public eg a person teaching another person to drive. That person is, in NZ, under a legal duty to take reasonable precautions, because under S156 CA1961 he is deemed in charge of a dangerous thing
Parties - Define special relationship as part of abets
R v Russell
Where there is a special relationship and no intervention might amount to approval and encouragement of the principal offenders actions
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’s act he became an aider and abettor and thus a secondary offender
Parties - Define incites, counsels and procures
All take place before the offence is committed and none of those people need to be in attendance.
Incites - Means to rouse, stir up, stimulate, urge or spur in a person to commit the offence
Counsels - Means to intentionally instigate the offence by advising a person on how best to commit the offence
Procures - Is setting out to see that something happens and taking the appropriate steps to ensure that it does eg a woman obtains the services of a hit man
Parties - Define common intention
2 or more offenders form a common intention and embark on a joint enterprise can be charged as parties to the offence
They can also be charged as parties to any other offence that any one of them commits in order to assist in the commission of the offence provided the other offence is a known probable consequence of their common purpose