Association Flashcards
CL: Conspiracy
s310(1) CA61:
(1) every one 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 NZ would be an offence
- > liable 7 years if max punishment > 7 years AND
- > otherwise liable to the same punishment as if he had committed that offence.
Case: Mulcahy
A conspiracy is more than the mere intention of two or more, it is the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means.
This very plot is an act in itself.
Conspiracy does not apply where a punishment for conspiracy is otherwise expressly prescribed. Which section outlines this?
s310(2)
When is conspiracy complete?
The offence is complete on the agreement being made with the required intent.
No further progression towards the completion of the offence is required.
Case: Sanders
A conspiracy does not end with the making of the agreement. It in existence until it is ended by:
- completion of its performance or
- abandonment or
- in any other manner by which agreements are discharged
What is the actus reus of Conspiracy?
The actual agreement by two or more to carry out the illegal conduct.
Merely being passively present without actual agreement is not sufficient.
Define: Intent
In a criminal law context there are two specific types of intent. Firstly there must be an intention to commit the act and secondly, an intention to get a specific result.
What are 3 types of circumstantial evidence from which an offender’s intent may be inferred?
- the offender’s actions and words before, during and after the event
- the surrounding circumstances
- the nature of the act itself.
Case: 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 identity of the other parties is never established and remains unknown.
Can a person conspire with there spouse or civil union partner? What section?
Yes. s67 CA61
Up until which stage can you still withdraw from a conspiracy?
Until an agreement has been reached
What 4 things should you seek to establish in a suspect interview regarding conspiracy?
- the existence of an agreement to:
- commit an offence OR
- omit to do something that would amount to an offence AND
- the existence of an agreement to:
- the intent of those involved
- the identity of all people concerned where possible
- whether anything was written, said or done to further the common purpose
CL: Attempt
s72 CA61
(1) Every one who,
- having an intent to commit an offence,
- does or omits an act for the purpose of accomplishing his object,
- is guilty of an attempt to commit the offence intended,
- whether in the circumstances it was possible to commit the offence or not.
Is the question of whether an act/omission an attempt a question of law or fact?
s72(2):
a question of law
What are the three elements of an attempt?
- intent to commit an offence
- act - did or omitted something to achieve that end
- proximity - act/omission sufficiently close to intended offence.
What are the rules around committing impossible offences?
- offence must be legally possible to commit
- whether an offence was physically possible does not matter, you can be convicted of an attempt either way.
What 3 Cases provide examples of physically impossibility as it relates to Attempts?
Ring
The offender’s intent was to steal property by putting his hand into the pocket of the victim. He was convicted of attempted theft even though the pocket was empty and theft was physically impossible.
Higgins
Where plants being cultivated as cannabis are not cannabis it is physically impossible to cultivate such prohibited plants and therefore it is still legally possible.
Jay
A man bought hedge clippings believing they were cannabis.
Case: Harpur
The defendant’s conduct is to be viewed in its entirety and considering how much remains to be done … is relevant, but not determinative.”
What is Simester and Brookbanks test for attempting?
- Has the offender done anything more than getting himself into a position from which to make an attempt?
OR
- has the offender actually commenced execution; i.e. has he taken a step in the actual crime itself?
if yes to either = attempt
Donnelly
Where stolen property has been returned to the owner or legal title has been transferred to another 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?
Once the defendant completes an act sufficiently proximate to the intended offence.
What is the role of judge and jury?
The judge decides where the defendant’s actions were more than mere preparation.
The jury decides whether the facts have been proved beyond reasonable doubt and, if so, whether the act’s are close enough to the full offence.
When are you unable to charge with an attempt? (3)
- Criminality depends on recklessness or negligence (e.g. manslaughter)
- An attempt is included within the definition of the offence.
- Offence is such that the act has to have been completed in order for the offence to exist at all. (e.g. demanding with menace: it is the demand accompanied by menace that constitutes the offence)
What is the penalty for an attempt?
s311 CA61:
Life = 10 years
Otherwise = half of penalty
What are the three situations that do not amount to a defence to an attempt?
- Prevented by some outside agent (e.g. police)
- Failed due to ineptitude, inefficiency or insufficient means (e.g. not strong enough to open door)
- Physical impossibility (e.g. nothing to steal)
What must you prove for Being A Party to an Offence?
- identity of the the defendant, AND
- an offence has been committed, AND
- the elements of the offence (s66(1)) have been satisfied.
When must participation have occurred for Being a Party to an Offence?
Before or during the commission of the offence.
Case: Pene
A party must intentionally assist or encourage the principal party
- it is insufficient if they were reckless as to whether the they were assisted or encouraged.
What is the Principal party in relation to a Party to the Offence?
What is the Secondary party?
s66(1)(a):
Actually commits the offence andpersonally satisfies the Actus Reus and Mens Rea
s66(1)(b)-(d):
Person who:
- assists,
- abets,
- incites,
- counsels
- procures
and in doing so is liable for the offence committed by the Principal offender.
What are the two methods by which multiple offenders may be considered Principals?
Method 1:
Each offender satisfies the elements of the offence committed.
E.g. each person assaults the victim. In such circumstances there is no requirement to refer to s66.
Method 2:
Each offender separately satisfies part of the actus reus. E.g. Where one person prepares a poison and the other administers it.
Case: Renata
Where the principal offender cannot be established, it is sufficient to prove that each individual must have been the principal or a party in one of the ways contemplated by s66(1).
Case: Larkins
While it is unnecesary that the Principal should be aware that he or she is being assisted, there must be proof of actual assistance.