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