Association

Question 1

Parties - Section 66(1) Crimes Act 1961

Answer 1

(1) Every one 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.

Question 2

Parties - Section 66(2) Crimes Act 1961

Answer 2

(2) Where two or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is 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.

Question 3

Accessory After the fact - Section 71(1) Crimes Act 1961

Answer 3

(1) An accessory after the fact to an offence is one who, knowing any person to have been a party to the offence, receives, comforts, or assists that person or tampers with or actively suppresses any evidence against him or her, in order to enable him or her to escape after arrest or to avoid arrest or conviction

Question 4

Can a spouse or civil union partner be convicted as an accessory after the fact?

Answer 4

No -
71(2) No person whose spouse or civil union partner has been a party to an offence becomes an accessory after the fact to that offence by doing any act to which this section applies in order to enable the spouse or civil union partner, or the spouse, civil union partner, and any other person who has been a party to the offence, to escape after arrest or to avoid arrest or conviction

Question 5

Attempts - Section 72(1) Crimes Act 1961

Answer 5

(1) Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his or her object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.

Question 6

What must be proved to show an attempt

Answer 6

The acts must be sufficiently proximate to the full offence. Effectively the accused must have started to commit the full offence and gone beyond the phase of mere preparation, this is the all but rule

Question 7

Receiving - Section 246(1) Crimes Act 1961

Answer 7

(1) Everyone is guilty of receiving who receives any property stolen or obtained by any other imprisonable offence, knowing that property to have been stolen or so obtained, or being reckless as to whether or not the property had been stolen or so obtained.

Question 8

When is the offence of receiving complete?

Answer 8

Section 246(3) - The act of receiving any property stolen or obtained by any other imprisonable offence is complete as soon as the offender has, either exclusively or jointly with the thief or any other person, possession of, or control over, the property or helps in concealing or disposing of the property

Question 9

What is the punishment for receiving?

Answer 9

Section 247 -
Under $500 - 3 months imprisonment
$500 - $1000 - 1 year imprisonment
over $1000 - 7 years imprisonment

Question 10

Conspiracy - Section 310 Crimes Act 1961

Answer 10

(1) Everyone who 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 New Zealand would be an offence, is liable to imprisonment for a term not exceeding 7 years if the maximum punishment for that offence exceeds 7 years’ imprisonment, and in any other case is liable to the same punishment as if he or she had committed that offence.

Question 11

Punishment for accessory after the fact?

Answer 11

Section 312 Crimes Act 1961 -
- 7 years if offence punishable by life imprisonment

• 5 years if offence punishable by 10 or more years
• half the penalty for any other offences

Question 12

Define Recklessness

Answer 12

A conscious and deliberate taking of an unjustifiable risk.

Question 13

What knowledge must accused have for accessory after the fact?

Answer 13

The accused must have a knowledge that the person they are being an accessory to was party to an offence at the time of assisting them.

Question 14

Define knowing - Simester and Brookbanks

Answer 14

Knowing means correctly believing, the defendant may believe something wrongly but cannot know something that is false.

Question 15

Define Offence

Answer 15

Act or omission that is punishable on conviction under any enactment, and are demarcated into four categories.

Question 16

Proof of offence committed - accessory after the fact

Answer 16

A person charged with being an accessory after the fact is entitled to insist of proof of the principal crime and to challenge the evidence of it, even if the principal offender has pleaded guilty.

Question 17

Define tampers with or actively suppresses evidence

Answer 17

Must do a deliberate act in relation to evidence against the offender for the purpose of assisting the person to evade justice. The act must actually help the person.

Question 18

Completion of the Offence

Answer 18

R v MANE - to be considered an accessory after the fact the acts done by the person must be after the completion of the offence

Question 19

Define stolen - Section 219 Crimes Act 1961

Answer 19

Dishonestly without claim of right takes any property with intent to deprive any owner permanently of that property or any interest in that property.

Question 20

Define receives, comforts, assists

Answer 20

The accused does a deliberate act for the purpose of assisting the person to evade justice. The act done must actually help the person in some way.

Question 21

Define agreement - conspiracy

Answer 21

The conspiratorial agreement requires the operation of both the physical and mental faculties.

The actus reus of the conspiracy is the agreement between two or more people to put their common design into effect.

The mens rea necessary is:
• an intention of those involved to agree
• an intention that the relevant course of conduct should be pursued by those party to the agreement

Question 22

What was held in R v HARNEY

Answer 22

Recklessness involves a foresight of dangerous consequences that could well happen, together with an intention to continue the course of conduct regardless of the risk

Question 23

What was held in R v CROOKS

Answer 23

Knowledge means actual knowledge or belief in the sense of having no real doubt that the person assisted was party to the relevant offence.

Question 24

What was held in R v BRIGGS

Answer 24

Knowledge may also be inferred from wilful blindness or a deliberate abstention from making enquiries that would confirm the suspected truth

Question 25

What was held in R v MANE

Answer 25

To be considered an accessory, the acts done by the accessory must be after the completion of the offence

Question 26

What was held in R v RING

Answer 26

In this case the offender’s intent was to steal property by putting his hand into the pocket of the victim. Unbeknownst to the offender the pocket was empty. Despite this he was able to be convicted of attempted theft, because the intent to steal whatever property might have been discovered inside the pocket was present in his mind and demonstrated by his actions. The remaining elements were also satisfied.

Question 27

What was held in R v HARPUR

Answer 27

[The Court may]”have regard to the conduct viewed cumulatively up to the point when the conduct in question stops … the defendant’s conduct [may] be considered in its entirety. Considering how much remains to be done … is always relevant, though not determinative

Question 28

What was held in Police v JAY

Answer 28

A man brought hedge clippings, believing it was cannabis.

Question 29

What was held in R v DONNELLY

Answer 29

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.

Question 30

What was held in R v SANDERS

Answer 30

A conspiracy does not end with the making of the agreement. The conspiratorial agreement continues in operation and therefore in existence until it is ended by completion of its performance or abandonment or in any other manner by which agreements are discharged”.

Question 31

What was held in R v WHITE

Answer 31

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 identity of the other parties is never established and remains unknown.

Question 32

What was held in R v PENE

Answer 32

A party must intentionally help or encourage - it is insufficient if they were reckless as to whether the principal was assisted or encouraged.

Question 33

What was held in R v RENATA

Answer 33

Three offenders beat the victim to death in the car park of a tavern. The prosecution was unable to establish which blow was the fatal one or which of the three offenders administered it. 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 s66(1)

Question 34

What was held in LARKINS v Police

Answer 34

While it is unnecessary that the principal should be aware that he or she is being assisted, there must be proof of actual assistance. The mere commission of an act intended to have that effect is insufficient. Absence of knowledge by the principal that he is being assisted removes a common foundation for a finding of actual assistance, namely that the principal was able to proceed with his enterprise with the additional confidence gained because his accomplice was on the lookout for unwanted intervention

Question 35

What was held in ASHTON v Police

Answer 35

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, that the person is in NZ, under a legal duty to take reasonable precautions, because under s156 CA1961 he is deemed to be in charge of a dangerous thing.

Question 36

What was held in R v RUSSELL

Answer 36

The accused was charged with murder of his wife and two son’s following an argument between the accused and his wife, the wife in the presence of the accused jumped into a swimming pool with both children drowning them all, failed to render assistance to his wife or children. 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, abettor and thus a secondary offender

Question 37

What was held in R v BETTS & RIDLEY

Answer 37

An offence where no violence is contemplated and the principal offender in carrying out the common aim uses violence, a secondary offender taking no physical part in it would not be held liable for the violence used.

Question 38

What was held in R v KENNEDY

Answer 38

The prosecution must prove an intent on the part of the receiver to possess the property

Question 39

What as held in R v LUCKINSKY

Answer 39

The property received must be the property stolen or illegally obtained (or part thereof), and not some other item for which the illegally obtained property had been exchanged or which are the proceeds.