association Flashcards
what is a conspiracy
an agreement between two or more people to commit an offence.
Conspiracy S310 Crimes Act 1961
ELEMENTS
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.
CONSPIRES
A conspiracy is an agreement between two or more people to commit an offence.
CL: 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 do a lawful act by unlawful means.
So long as such a design rests in the 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.
ANY PERSON
Atleast one or more (real) persons.
CL: 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 idenity of the other parties is never established and remains unknown.
COMMIT AN OFFENCE
Any act/ommission that is punishable on conviction under any enactment.
TO OMIT
the action of excluding or leaving out someone or something/ failure to fulfil a moral /legal obligtaion.
ANY PART OF THE WORLD
It is an offence to conspire to commit an offence in NZ and in any part of the world that would be an offence in NZ.
Defence: The person has a defence if they are able to prove that the act is not an offence under the law of the place where it was to be committed.
ANYTHING OF WHICH THE DOING OR OMMISSION IN NZ WOULD BE AN OFFENCE
A person charged with conspiracy need not have been in NZ at the time of the act/ommission.
Though to be charged by NZ courts must be physically in NZ and acted in continuance of that conspiracy.
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 a lawful act by unlawful means.
so long as such a design rests in inttention only
it is not indictable.
When two agree to carry it (then intended offence) into effect, the very plot is an act in intself.
Omission
intentional failure to act or exclude something or someone. failure to fulfil a moral/legal obligation.
is a person who withdraws from the agreement still guilty of conspiracy?
Yes, they are still guilty of a conspiracy, as is those people who become party to the agreement after it has been made.
A person can withdraw before the actual agreement is made, meaning they are not liable for conspiracy.
when is a conspiracy complete?
when the agreement has been made with the required intent.
No further involvement is required from any of the parties.
R v SANDERS
a conspiracy does not end with the making of the agreement.
the conspiractorial agreement continues in operation and therefore in existance until it is ended by completion of its performance or abandonment or in any other manner by which agreements are discharged.
actus reus and mens rea of conspiracy
Mens rea:
an intention of those involved to agree.
an intention to commit the full offence
Actus reus:
the actual agreement between two or more people to carry out illegal conduct.
what makes up the actus reus of conspiracy?
physical acts, words or gestures which form their agreement.
do they need to know how they will carry out the plan for them to be liable for a conspiracy?
no. a simple word agreement will suffice.
are you party to a conspiracy if are present during that agreement?
mere presence and knowledge does not = liable to conspiracy.
If you were merely present but were not a part of/lacked intent- you are not liable.
Intent
deliberate act, specific outcome
R V COLLISTER
intent inferred by circumstance.
how do you prove intent
offenders words, actions, before during or after.
the surrounding circumstances
the nature of the act itself.
R v WHITE
Where you can prove that a suspect conspires with other parties (one or more people) who identities are unknown, that suspect can still be convicted even if the identity of the other parties is never established and remains unknown
can you conspire with a spouse/partner?
S67 CA 1961- a person is capable of conspiring with their spouse/civil union partner/spouse.
are offences and crimes the same thing?
they are words used interchangably in statute and there is no material difference.
they both describe any act or omission that is punishable on conviction under any enactment.
act means
to take action/ do something/ bring about a result
Jurisdiction and offences-
can you conspire to commit an offence in NZ while not physically in the country?
it is an offence to conspire to commit an offence in NZ, though the acts or omissions may take place outside of NZ.
It is sufficient if one act or omission forming part of the offence occured in NZ.
conspiracy entered outside of NZ
Conspiracy committed outside of new zealand is chargable if that person then enters NZ and is physically present for the continuance of that conspiracy.
NZ courts have no juristiction over a person who enters a conspiracy abroud but never comes to NZ.
defense Conspiracy to enter an offence overseas
it is an offence to conspire to commit an offence / omit an act in any part of the world that would be an offence in NZ.
Though the person has a defence if they are able to prove that the act is not an offence under the law of the place where it was to be committed.
conspiracy and provisions against specific legislation includes
defeating justice
false accusations
murder
piracy
treason
what should you cover when interviewing witnesses re conspiracy?
*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.
what should you cover when interviewing suspects re conspiracy?
*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.
why is undesirable to lay a substantive charge and conspiracy charge?
*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.
giving evidence against a co-conspirator
There must be independent evidence of the conspiracy for a conspirators evidence to be admitted as evidence against a co-conspirator.
Can you charge someone with conspiracy if they are physically unable to carry out the offence?
Yes you can charge someone with conspiracy even if they are incapable of carrying the substantive offence.
Can I lay charges for conspiracy and the substantive offence?
If you can prove a substantive offence, only lay charges for the substantive offence, unless it fails to adequately represent the total criminality of the offending encountered.
S72 Crimes Act 1961 Attempts
does or omits an act
for the purpose
of accomplishing his object
is guilty of an attempt
whether or not in the circumstances
it was possible to commit that offence
elements of an attempt offence
intent - to commit an offence
act- that they did/ omitted to do something to achieve their purpose
proximity- that their act or omission was sufficient close.
(must be legally possible does not need to be impossible to commit)
what does mens rea mean?
guilty mind- refers to intent and knowledge of act.
R V RING
the offenders intent was to steal property by putting his hand into the pocket of the victim.
unknown to the offender the pocket was empty.
despite this he was able to be convicted of attempted theft because his intent to steal whatever property might have been discovered inside the pocket was present in his mind and demonstrated in his actions.
the remaining elements were also satisfied.
sufficiently proximate to full offence- attempts
.
did they go beyond preparation and begin to commit full offence?
Start/ did act or omission with intention to commit full offence.
examples of attempts
lying and waiting/ searching for a victim.
reccy on scene for potential crime.
enticing victim to go to scene.
unlawfully entering a structure/vehicle where they intend to commit an offence.
R V HARPUR
The court may have regard to the conduct viewed cummulatively up to the point when the conduct stops… conduct may be considered in its entirety. considering how much remains is always relevant though not determinative.
simester and brookbanks suggested the following questions in determining the difference between preparation and an attempt
- has the offender done anything more than getting themselves into postion from which they could embark on an actual attempt?
- has the offender actually commenced execution of crime?
who decides on the law of proximity?
the judge.
impossibility- attempts
refers to physically impossible not legally imposible.
Higgins v Police
where plants being cultivated as cannabis are not in fact cannabis, it is physically not legally impossible to cultivate such prohibited plants. accordingly it is possible to commit the offence of attempting to cultivate cannabis.
Police v Jay
a man bought hedge clippings believing they were cannabis.
legally impossible- attempts
when the completed act would not be an offence, even if the suspect had criminal intent.
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 has previously been stolen or dishonestly obtained.
is an attempt complete if the offender withdraws?
if the offender changes their mind or makes a voluntary withdrawal after completing an act that is sufficiently proximate then it is an offence
once the offender is sufficiently proximate they can no longer use the defences?
They were prevented by some outside agent from doing something that was necessary to complete offence.
Failed to complete the full offence due to ineptitute.
were prevented from committing the offence because an intervening event made it physically impossible.
functions of a judge and jury re attempts
judge decides whether the offender left prep stage and entered the attempt stage.
Passed onto jury who must decide if mens rea/ actus reus exists.
you cannot charge someone with an attempt under these circumstances
the criminality depends on recklessness or neglience.
at attempt to commit an offence is included within the definition of the offence.
the offence is such that the act has to have been completed in order for the offence to exist at all.
filing charges- charged with full offence
charged with full offence- found guilty of an attempt= convicted with an attempt.
filing charges- charged with an attempt
defendant charged with an attempt but found guilty of full offence= convicted with an attempt
framing the charge- attempts
add the phrase “attempted to” before ingridents.
section written out as [main section] & s72 Crimes Act 1961.
what is the max penality for an attempt
when there is no punishment expressly perscribed for that attempted offence- 10 years.
what must you prove re an attempt
ID of suspect.
intended to commit full offence.
did/ommited something to achieve their object.
who is a party to an offence
any person involved at any or all stages of preparing for, attempting or commiting the offence.
S66(1) Crimes Act 1961 Parties to offences
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
d) incites, counsels, or procures any person to commit the offence
S70 Crimes Act 1961 offence committed other than offence intended
1) incites/ councels/ procures
another to be a party to an offence
even if the offence was committed in a way which was different from that which was incited/ counsels/suggested.
2) incites/ councels/ procures
another party to be a party in an offence
is party to every offence which that other person commits in consequence of such inciting, counselling, procuring.w
what do you need to prove- parties to
the ID of the defendant
an offence successfully committed.
the elements of the offence (S66 have been satisfied)
when must have participation occured- parties to?
before or during the offence.
what is an accessory after the fact?
a person providing assistance to the primary or secondary party of an offence following the commission of a crime.
is an accessory after the fact liable for the original offence?
no they are only liable as an accessory after the fact under S71 and S312 Crimes Act 1961
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.
what is a principle party?
those who satisfy the actus reus / mens rea of the intended offence (there can be more than one principle party)
what is a secondary party?
those who assist abet incite counsell or procure under S66.
the acts of the secondary party must be before or during the principle offence.
A secondary party does not need to commit the intended offence themselves.
R V RENATA
the court held that where the principle offender cannot be identified , it is sufficient to prove that each individual accused must have been either the principle party or party in one of the ways contemplated in S66.
Aids
to aid means to assist in an offence either physically or by giving advice and information.
A person providing aid does not need to be physically present during the actual offence.
Larkins V Police
while it is unnecessary that the principle should be aware that he or she is being assisted, there must be proof of actual assistance.
examples of assistance
keeping lookout for someone
providing a screwdriver to someone interfering with a vehicle.
telling an associate when a neighbour is away from their home so to allow the opportunity to commit a burg.
can you aid someone by omission?
yes if there was a legal duty to act and they chose not to which allowed an offence to occur then that is aiding by omission.
Abets
to instigate or encourage someone to commit an offence.
Does not require the person abetting to be during the actual commission of the offence.
passive acquiescence
mere presence does not make someone liable for abetting however if they are present during the commission of an offence and they have a special relationship with the offender or have a duty to act and fail to do so, this may create liability
Ashton v Police
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 dive. That person is, in NZ under a legal duty to take reasonable precautions, because under s156 CA 1961 he is deemed to be in charge of a dangerous thing
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 so doing and by giving the encouragement and authority of his presence and approval to his wife’s act he became an aider and abetter and thus a secondary offender.
Incite
to rouse, stir up, stimulate, animate, urge, spur on any person to commit an offence.
takes place before the commission of an offence
