Association CIB 006 Part 1

Question 1

R v Donnelly

Answer 1

• 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 2

All but Rule

Answer 2

Sufficiently Proximate

The accused must have started to commit the full offence and have gone beyond the phase of mere preparation

Question 3

R v Harpur

Answer 3

“[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.”

I.E

• actions need not be considered in isolation;
• sufficient evidence of his intent was available from the events leading up to that point.’

Question 4

Section 72(2) CA 1961

Answer 4

The difference between an attempt and preparation to committ an offence is a question in law - to which the Judge must decide

Question 5

R v Russell

Answer 5

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 abettor and thus a secondary offender.

Question 6

R v Briggs & Wilful blindness

Answer 6

As with a receiving charge under s246(1),

R V Briggs

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

Comment:

A person is considered wilfully blind in only two situations, these being:
• where the person deliberately shuts their eyes and fails to inquire; this is because they knew what the answer would be, or
• in situations where the means of knowledge are easily at hand and the person realises the likely truth of the matter but refrains from inquiring in order not to know.

Question 7

R v Larkins

Answer 7

• While it is unneccessary that the principal should be aware that he or she is being assissted,
• there must be proof f actual assisstance.

Question 8

R v Sanders

Answer 8

• A conspiracy does not end in the making of the agreement.
• The conspirational 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 9

R v Ring

Answer 9

R v Ring

• In this case the offender’s intent was to steal property by putting his hand into the pocket of the victim.
• Unbeknown 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 10

R v Lucinsky

Answer 10

R v Lucinsky

• The property received must be the property stolen (or part of)
• and not some other item for which is illegally obtained property that has been exchanged or which are the proceeds of.

Question 11

Higgins v Police

Answer 11

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

Question 12

Liability - Recieving

Answer 12

• Recieves
• [Sec 246(3); R v COX; Cullen v R; Rv Donnelly]*
• Any property stolen or obtained by any other crime
• [Sec 2 CA; R v Lucinsky; Sec 219(4); Anderson v Police; Sec 49 E]*
• Knowing the property to be stolen or so obtained,

OR

Being reckless wether or not the property had been stolen or so obtained

[Simester & Broobanks; R v Kennedy; R v Harney; R v Crooks]

Question 13

Liability - Accessory After the Fact

Answer 13

Section 71(1) CA 1961

​1- Knowing any person to be party to an offence

[Rv Crooks; Rv Briggs; 2 Points to prove in K; Sec 66(1); R v Mane]

2- Recieves, Comforts or assists that person, or

Tampers with or actively suppressors any evidence

[Definitions; R v Levy; Rv Reddy]

3- In order to enable him of her to escape after arrest or avoid arest or conviction

Question 14

Liability - Conspiracy

Question 15

Liability Attempts

Question 16

Penalities for Attempts

Answer 16

S311(1) CA61

Life imprisonment charge - 10 Years Imp
Any other penalty - half the penalty

Question 17

Test for proximity

Answer 17

• Has the offender done anything more than getting himself into a position from which he could embark on an actual attempt? or
• Has the offender actually commenced execution?

Question 18

Innocent Agent

Answer 18

A person who is unaware of the significance of their actions this may be due to age, mental abiltity

Where an innocent agent is employed by the accessory, the actions of the innocent agent will be held to be the actions of the accessory.

Question 19

Accessory After the Fact

Points to prove

Answer 19

• That the person (person A), who is received, comforted or assisted by the accessory (person B) is a party (principal or secondary party) to an offence that has been committed.
• That, at the time of receiving, comforting or assisting that person (person A), the accessory (person B) knows that person (person A) was a party to the offence.
• That the accessory (person B) received, comforted or assisted that person (person A) or tampered with or actively suppressed any evidence against that person (person A).
• That, at the time of the receiving, comforting or assisting etc, the accessory’s (person B) purpose was to enable that person (person A) to escape after arrest or to avoid arrest or conviction.

Question 20

Function of Judge & Jury

Answer 20

The judge:

Must decide whether the defendant had left the preparation stage and was already trying to effect completion of the full offence.

If the judge decides that the defendant’s actions were more than mere preparation, the case goes to the jury.

The jury:

Must then decide whether the facts presented by the Crown have been proved beyond reasonable doubt and, if so, must next decide whether the defendant’s .intended to commit the full offence and were they close enough to the full offence

Question 21

Accessory After the Fact

Indirect Assistance

Answer 21

There is no requirement that the offender (person A) is directly assisted by the accessory (person B).

Example:
Person A commits an offence and is assisted directly by another accessory (person C). Person B assists person C directly, but does not directly assist person A. Despite this distance, person B is still an accessory after the fact to person A.

Question 22

Attempts - participation

Answer 22

To be considered a party to the offence, participation must have occurred:

• before or during (contemporaneous with) the commission of the offence and
• before the completion of the offence.

Note where circumstances are contemporaneuos eg- driver in a get away car

Question 23

Attempts S72(3) CA61

Answer 23

S72 CA61

(3) An act done or omitted with intent to commit an offence may constitute an attempt if

• it is immediately or proximately connected with the intended offence,
• whether or not there was any act
• unequivocally showing the intent to commit that offence.

Question 24

Elements of an Attempt

Answer 24

Elements of an attempt

• identity of the suspect
• 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 ommission was sufficiently close

All three must be present, must be legally possible but can be physically impossible

Question 25

Accessory After the fact –proof of knowledge

Answer 25

Accessory After the fact –proof of knowledge

• An offence has been committed, and
• The person they are assisting was a party (principal or secondary) to that offence

Where this knowledge comes about following the rendering of the assistance they are not liable as an accessory