ASSOCIATION Flashcards
Conspiracy to Commit Offence
Section 310(1) CA 1961
Conspires
- 2 or more people forming an agreement to do an unlawful act or do a lawful act by unlawful means
Mulcahy v R: once they make an agreement the very plot is an act in itself
R v Collister: Does a deliberate act with intent to get a specific result. Intent inferred from the circumstances, actions and words said before during and after the event, the surrounding circumstances, the nature of the act itself
With any person
- Gender neutral and proven by judicial notice and circumstantial evidence
To commit any offence
- An act or omission that is punishable on conviction under any enactment
OR
To do or omit, in any part of the world
Anything of which the doing or omission in NZ would be an offence
R v Darwish: if conspiracy is made in NZ and elsewhere the courts will likely view that the conspiracy was form in both countries simultaneously. Given NZ is one of those countries, it will lie within the jurisdiction of the NZ court
R v Sanders: it was deemed sufficient if one act or omission forming part of an offence or “any event necessary to the completion of any offence” occurs in NZ
Conspires
Two or more people forming an agreement to do an unlawful act, or to do a lawful act by unlawful means
Mulcahy v R (conspires)
Relies on two or more people forming an intention and with the agreement to carry out the offence
Once they make an agreement, the very plot is an act in itself
Can a conspiracy involve an omission (Failure to act)?
Yes. It can be an agreement between the parties not to act
For example: A security guard deliberately leaving a door unlocked that he would normally secure so that his associates could burgle the place
Can you withdraw from an agreement?
A person is still guilty of conspiracy if they withdraw after the agreement was made
However, if a person withdraws before the actual agreement they will not be liable
When is a conspiracy complete?
Once the agreement is made, accompanied by the require intent
It does not require any further progression towards its completion
R v Sanders
(When a conspiracy ends)
A conspiracy does not end with the making of the agreement
The conspiratorial agreement continues until they have carried out their objective or until it is abandoned, or in any other manner by which agreements are discharged
What is the Mens Rea and Actus Reus for an agreement?
MENS REA
- An intention of those involved to agree, and
- An intention that the relevant course of conduct should be pursued by those parties to the agreement
ACTUS REUS
- An agreement between two or more people to put their common design into effect
What are some things that can help prove the Actus Reus of an agreement?
Physical acts, words or gestures (express or implied)
A verbal agreement
- There is no need for them to have made a decision on how they will actually commit the offence
R v Collister (Intent)
Does a deliberate act with intent to get a specific result
Intent inferred from the circumstances:
- Actions and words said before, during and after the event
- The nature of the act
- The surrounding circumstances
R v White
(unknown identities)
Where you can prove that a suspect conspired with other 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
Conspiring with Spouse or Partner
Section 67 CA 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
What is the difference between offence and crime?
Nothing
They’re basically the same and are described as:
- Any act or omission that is punishable on conviction under any enactment
Define Act and Omission
ACT
- To take action or do something
- To bring about a particular result
OMISSION
- The action of excluding or leaving out someone or something
- A failure to fulfil a moral or legal obligation
R v Sanders
(Jurisdiction)
It was deemed sufficient if one act or omission forming part of the offence or “any event necessary to the completion of any offence” occurs in NZ
Jurisdiction in relation to conspiracy
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, if doing that thing or omitting would be an offence in NZ
Conspiracy to Commit an Offence Overseas (s310)
defence
If a person conspires to commit an act overseas, it is a defence to a charge of conspiracy if they can prove that the act or omission is not an offence under the law of the country where it was to be carried out
R v Darwish
(Conspiracy between NZ and other country)
If the conspiracy is made between two parties, one in NZ and one elsewhere, the courts will likely take the view that the conspiracy was formed in both countries simultaneously
Given NZ is one of those countries, it will lie within the jurisdiction of the NZ courts
What are the two points in relation to admissibility of evidence for a conspiracy
- Independent evidence of the conspiracy can be admitted as evidence against the co-conspirator’s
- Explanation’s made after the common purpose can only be used as evidence against the person making it
When interviewing witnesses for conspiracy what should their statements contain?
- The identity of 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
What should you ask a suspect in relation to a conspiracy?
- The existence of an agreement to commit or omit something that would amount to an offence
- The intent of those involved
- The identity of those involved
- Whether anything was written, said or done to further the common purpose
Can you file a charge of conspiracy when a substantive offence can be proved?
Where a substantive charge can be proved you should avoid laying a conspiracy charge, unless the substantive charges fail to adequately represent the total criminality of the offending encountered
What must you prove for cases of attempt?
- The identity if the suspect/s
- They intended to commit an offence
- They did, or omitted to do, something to achieve their object
What are the three elements of an attempted offence
MENS REA
- An intent to commit an offence
ACTUS REUS
- An act that they did or omitted to do to achieve that end
PROXIMITY
- That their act or omission was sufficiently close to the full offence
When can you not charge someone with an attempt?
- The criminality depends on recklessness or negligence (Manslaughter)
- An attempt to commit an offence is included within the definition of the offence (Assault)
- The offence is such that the act has to have been completed for the offence to exist at all (Demand with menace)
What are two examples of offences where an attempt isn’t relevant?
- Manslaughter
- Assault with intent to commit sexual violation
R v Ring (Attempt)
The offender intended to steal property by putting his hand into the victims pocket but the pocket was empty, so he did not obtain anything
This still qualifies as an attempt even though the theft wasn’t actually possible
A question of fact (conspiracy)
Whether the intent exists or not is a question of fact, a question that the jury decides
- The jury decides whether the facts presented by the Crown have been proved beyond reasonable doubt and if the defendant’s acts are close enough to the full offence
Actus reus in attempts
Does or omits an act for the purpose of accomplishing his object
The act must be immediately or proximately connected with the intended offence and goes beyond the (too remote) stage of mere preparation
Examples of acts that might constitute as an attempt
- Lying in wait, searching for or following the contemplated victim
- Enticing the victim to go to the scene of the contemplated crime
- Doing a recon of the scene of the contemplated crime
- Unlawfully entering a structure, vehicle or enclosure in which it is contemplated that the 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 (Attempt)
The court views the conduct cumulatively up until the conduct in question stops. How much remains to be done is always relevant, though not determinative
What question do you ask yourself in relation to proximity
Do the facts show mere preparation, or are the defendants acts or omissions immediately or sufficiently proximate to the intended offence?
What are the two questions you ask when doing the proximity test?
- Had the offender done anything more to embark in an actual attempt?
OR - Has he taken a step in the actual crime itself?
If yes, then we can say there has been an attempt as a matter of law
If no, then the conduct is classed as preparation and is not an offence
Who decides proximity?
It is a question of law, decided by the Judge, based on the assumption that the facts of the case are proved
What are the four elements that help determine proximity?
The acts carried out by the defendant may be look at collectively when determining proximity. You must take into consideration:
- Fact
- Degree
- Common sense
- The seriousness of the offence
Define Impossibility
A person can be convicted of an attempt to commit an offence that was physically impossible to commit, but cannot be convicted of an offence that was legally impossible to commit
What are the three case laws in relation to a physically or factually impossible?
- R v Ring
- Higgins v Police
- Police v Jay
In these cases it was held that the offenders could be convicted of an attempt, because they acted with criminal intent
Higgins v Police (Physically or factually impossible)
A person growing tomato plants believing they were cannabis plants. It is possible to commit the offence of ‘attempting to cultivate cannabis’
Police v Jay
(Physically or factually impossible)
A man brought hedge clippings believing they were cannabis
R v Donnelly (Legally impossible act)
Where stolen property has been returned to the owner, 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
What did the Court decide despite Donelly’s Mens rea and Actus reus?
It was legally impossible for him to receive stolen property as those goods were no longer deemed to be stolen
When is an attempt complete?
An attempt is complete when the defendant commits an act that is sufficiently proximate to the intended offence, even if they then change their mind and voluntarily withdraw
Once the acts are sufficiently proximate, what are three things that aren’t a defence
The defendant:
- Was prevented by some outside agent from doing something that was necessary to complete the offence (Interruption from Police)
- Failed to complete the full offence due to ineptitude, inefficiency or insufficient means (Faulty bomb did not explode)
- Was prevented from committing the offence because an intervening event made it physically impossible (Property has been removed before intended theft)
What is the function of the judge and jury for an attempt?
THE JUDGE MUST DECIDE
- Whether the act was sufficiently proximate to the full offence
- Whether the defendant’s actions were more than mere preparation
THE JURY THEN DECIDES
- Whether the facts presented by the Crown have been proved beyond reasonable doubt and if so, whether the defendant’s acts are close enough to the full offence
- And whether the defendant intended to commit the full offence
When filing charges for an attempt can the defendant be convicted of the full offence?
- Where a person is charged with the full offence, but they are found guilty only of an attempt they may be convicted of the attempt
- Where a person is charged with the attempt, but the evidence establishes that the defendant did in fact commit the full offence, they can only be convicted of the attempt
If there is no express punishment for an attempted offence, what is the punishment?
s311(2) CA 1961
If the sentence for the full offence is life imprisonment then it is no more that 10 years, in any other case it is half of the sentence of imprisonment
Parties to Offences
Section 66(1) CA 1961
(a) Actually commits the offence
(b) Does or omits an act for the purpose of aiding any person to commit the offence
(c) Abets any person in the commission of the offence
(d) Incites, counsels, or procures any person to commit the offence
Deals with situations where the people involved are a party to the intended offence
What do you need to prove when charging someone as a party s66(1)(a)-(d) ?
- The identity of the defendant AND
- An offence has been successfully committed AND
- The elements of the offence s66(1) have been satisfied
When someone is a party to an offence, when must participation occur?
- Before or during the offence
- Before the offence is complete
If a person was reckless as to whether the principal was assisted or encouraged, they are not liable. They must intentionally be helping
R v Pene (Party to)
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 the difference between the principal or secondary offender
PRINCIPAL
- The person who commits the offence s66(1)(a)
SECONDARY
- Someone who assists the principal offender either before or during the commission of an offence
- The person whose assistance, abetment, incitement, counselling or procurement is sufficient under s66(1)(b)(c) or (d)
- They do not need to know the precise detail involved in planning or committing the offence
R v Renata (Party to)
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 section 66(1)
Does a party to an offence need to be present when the offence is committed?
No, they can do something like leaving a door unlocked
Define Aids
To assist in the commission of an offence, either physically or by giving advice and information
R v Turanga (Aids)
The presence at the scene is not a requirement for any form of secondary participation. The central question in any case is whether the accused did in fact help the principal party
Does the principal party need to be aware the secondary party is helping them?
It’s not always necessary, the principal party also doesn’t need to agree to the assistance
Larkins v Police (Proof of assistance)
While it is not necessary 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?
- Keeping lookout for someone committing burglary
- Providing a screwdriver to someone interfering with a motor vehicle
- Telling an associate when a neighbour is away from their home so as to allow the opportunity to commit burglary
Can you aid by omission?
Yes, if a person, who has a legal duty or power of control, fails to observe or discharge the duty to prevent someone from committing an offence
A police officer stands by and watches someone getting beaten up and doesn’t help
Define Abets
- To instigate or encourage, urge another person to commit an offence
- You do not need to be present at the scene to do this
In R v Loper and R v Makita what was the rule about presence and encouragement?
Mere presence that does not provide encouragement is insufficient to ‘abet’
However deliberate presence intended to signify approval of the acts of the principal will support an inference of encouragement in fact
Ashton v Police
(Legal duty)
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
The person is, in NZ, under a legal duty to take reasonable precautions, because under s156 of the CA 1961 he is deemed to be in charge of a dangerous thing
When may passive acquiescence be considered abetting
In circumstances where there is a special relationship between the person and the principal offender or where they owe a legal duty to the victim or to the general public
R v Russell
(Special relationship)
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 acts he became an aider and abettor and thus a secondary offender
Wife drowns herself and children in pool after argument and husband watches
Define Incite
To rouse, stir up, stimulate, animate, urge or spur on a person to commit an offence
fan cheering on another fan who is assaulting a protester
Define Counsels
- Intentionally instigate the offence by advising a person’s on how best to commit an offence or
- Planning the commission of an offence for another person
Can also mean urging and can overlap with incites
An offender found with a letter of instructions on how to blow up a safe
Define Procures
- Setting out to see that something happens and taking the appropriate steps to ensure that it does
- The secondary party deliberately causes the principal party to commit the offence
- May be carried out by fraud, persuasion, words or conduct, such as an offer of payment
A woman hires a hitman to kill her husband and offers money or sexual services
Define Any Person
Any person carries its natural meaning and means any other person
Parties to Offences
Section 66(2) CA 1961
Where 2 or more people 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
Deals with situations where the people involved are a party to the intended offence and a party to any secondary offence committed in pursuance of the intended offence
Define Common Intention
- Where two or more offenders form a common intention and embark on a joint enterprise together, all who entered into the agreement can be charged as parties to that offence
- They can also be charged if the other person commits another offence which is a probable consequence of the prosecution of the common purpose
- However, if one offender goes beyond what was agreed, then the others are not liable for the unauthorised act
R v Betts and Ridley (common intention)
If no violence is contemplated but the principal offender uses violence, the secondary offender will not be liable
robs a man on the way to the bank, strucks the man in the head that he ends up dying
What is a question of fact? (Party to)
The jury must decide whether the defendant knew that furthering their common aim in a particular way would probably result in another of the parties committing a particular offence