Association definitions Flashcards
Conspires
Conspires
Conspiracy is an agreement by two or more people to commit an offence.
Omission
Omission
The agreement between the parties concerned may also have as its object an omission (failure to act) as opposed to the commission of an offence and as such this must not be overlooked.
Example – Security guard leaves a door unlocked that he usually secures (the omission) with the aim being that his associates gain entry to commit a burglary (the offence).
Withdrawing from the agreement
Withdrawing from the agreement
A person withdrawing from the agreement is still guilty of conspiracy as are the people who become party to the agreement after it has been made. However, a person can effectively withdraw before the actual agreement is made.
Completion of conspiracy
Completion of conspiracy
The offence is complete on the agreement being made with the required intent.
Actus Reas Agreement requires physical and mental faculties
Actus Reas Agreement requires physical and mental faculties
The mens rea (mental intent) necessary for a conspiracy is:
An intention of those involved to agree AND
An intention that the relevant course of conduct should be pursued by those party to the agreement
The actus reus (physical element) of conspiracy is the agreement between two or more people to put their common design into effect. The agreement must be made before the commission of the acts.
Mens Rea - conspiracy
Mens Rea - conspiracy
The offender’s mental intent must be to commit the full offence.
Conspiring with a spouse
Conspiring with a spouse
S67 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.
Offence explained
Offence explained
Offence and crime are words that are used interchangeably in statute. May be described as any act or omission that is punishable on conviction under any enactment and are demarcated into four categories.
Act and Omission Defined
Act and Omission Defined
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 legal obligation.
Conspiracy entered into overseas
Conspiracy entered into overseas
Under the common law rules as to jurisdiction over conspiracy offences a person who entered into conspiracy overseas is amenable to the jurisdiction of NZ courts only if they are later physically present in NZ and they act in continuance of the conspiracy.
Conspiracy to commit an offence overseas (defence)
Conspiracy to commit an offence overseas (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.
Admissibility of evidence - conspiracy
Admissibility of evidence - conspiracy
Anything a conspirator or party to a joint charge says or does to further the common purpose is admissible against the others involved.
Investigative procedure
Investigative procedure
Witnesses – Interview and obtain statements from witnesses covering:
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
Suspects – Interview the people concerned and obtained statements to establish:
The existence of an agreement to commit an offence OR
The existence of an agreement to omit or 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
Charging - conspiracy and substantive offence
Charging - conspiracy and substantive offence
Charges of conspiracy should not be filed in situations where the specific (substantive) offence can be proved.
Laying both a substantive charge and a related conspiracy charge is often undesirable because:
The evidence admissible only on the conspiracy charge may have a prejudicial effect in relation to the other charges
The judge may disallow the evidence as it will be too prejudicial
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.
Attempts
Attempts – Section 72(1) CA 1961
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.
Three elements of an attempt offence
Three elements of an attempt offence
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 omission was sufficiently close
Intent must be established - attempt
Intent must be established - attempt
When proving an attempt to commit an offence it must be shown that the accused’s intention was to commit the substantive offence.
Acts must be sufficiently proximate to the full offence
Acts must be sufficiently proximate to the full offence
The accused must have started to commit the full offence and have gone beyond the phase of mere preparation. This is the “all but” rule.
The test for proximity
The test for proximity
Simister and Brookbanks suggest the following questions should be asked in determining the point at which an act of mere preparation may become an attempt:
Has the offender done anything more than getting himself into a position from which he could embark on actual attempt OR
Has the offender actually commenced execution; that is to say, has he taken a step in the actual crime itself?
Impossibility
Impossibility
This means a person can be convicted of an offence that was physically impossible to commit, but cannot be convicted of an offence that was legally impossible to commit.
When an act is physically or factually impossible
When an act is physically or factually impossible
If the act in question amounts to an offence, but the suspect is unable to commit it due to interruption, ineptitude or any other circumstances beyond their control.
Act completed sufficiently proximate to intended offence - no defence
Act completed sufficiently proximate to intended offence - no defence
Once the acts are sufficiently proximate, the defendant has no defence that they:
Were prevented by some outside agent
Failed to complete the full offence due to ineptitude, inefficiency or insufficient means
Were prevented from committing the offence because an intervening event made it physically impossible
Attempt to commit an attempt
Attempt to commit an attempt
No such thing as an attempt to commit an attempt.
Function of the judge and jury - attempt
Function of the judge and jury - attempt
Judge - The judge must decide whether the defendant had left the preparation stage and was already trying to effect completion of the full offence.
Jury – The jury must the decide whether the facts presented by the Crown have been proved beyond reasonable doubt and, if so, must decide whether the Defendant’s acts are close enough to the full offence.
Unable to charge with attempt
Unable to charge with attempt
The criminality depends on recklessness or negligence
An attempt to commit an offence is included within the definition of that offence
The offence is such that the act has to have been completed in order for the offence to exist at all
Penalties - attempts
Penalties - attempts Section 311(1) – Crimes Act 1961
If the full offence carries life imprisonment – 10 years
Any other offence – Half of the full offence
What you need to prove parties to an offence
What you need to prove
You must prove:
The identity of the Defendant AND
An offence has been successfully committed AND
The elements of the offence s66(1) have been satisfied
To be considered a party to, when does participation have to occur? (before or during)
To be considered a party to, when does participation have to occur?
To be considered a party to the offence, participation must have occurred before or during the commission of the offence and before the completion of the offence.
Multiple offenders - parties to offences
Multiple offenders - parties to offences
Two methods which multiple offenders may be considered to be the principle.
Method 1 – Each offender satisfies elements of offence committed.
Each of the principal offenders may, separately satisfy the necessary elements of the relevant offence committed. (ie – assault)
Method 2 – Each offender separately satisfies part of the actus reus.
Under section 66(1)(a) each offender may separately satisfy some part of the actus reus of the offence, where their actions, when combined with the actions of the other person, satisfy the complete actus reus. (ie. Brew poison, hand to another, who administers it)
What are main points in R v Renata - parties to offences
What are main points in R v Renata - parties to offences
- Each offender satisfies the ingredients of the offence committed
- Each offender separately satisfies the actus reus
Aids
Aids
To aid means to assist in the commission of the offence, either physically or by giving advice and information. (Not required at the scene)
Examples of assistance - parties to offences
Examples of assistance - parties to offences
- Keeping lookout for someone committing a 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 a burglary
Abets
Abets
Abets means to instigate or encourage, that is, to urge another person to commit the offence.
Incites
Incites
To incite means to rouse, stir up, stimulate, animate, urge or spur on a person to commit the offence.
Counsels
Counsels
Counsels means to intentionally instigate the offence by advising a person(s) on how best to commit an offence.
Procures - parties to offences
Procures - parties to offences
Procurement is setting out to see that something happens and taking the appropriate steps to ensure that it does.
Procures requires that the secondary party deliberately causes the principal party to commit the offence.
Common Intention parties to offences
Common Intention - parties to offences
Can also be charged as parties to any other offence that any one of them commits in order to assist in the commission of the first offence originally agreed to, provided that the other offence is known to be a probable consequence of the prosecution of their common purpose.
Innocent agents - parties to offences
Innocent agents - parties to offences
An innocent agent is someone who is unaware of the significance of their actions.
(Poison in glass, handed to waiter to deliver
– Waiter does not know about poison therefore innocent agent.)
Situations that establish involvement of parties - ROSWI
Situations that establish involvement of parties - ROSWI
A reconstruction of the offence committed. This would indicate that more than one person was involved or that the principal offender had received advice or assistance.
The principal offender acknowledging or admitting that others were involved in the offence.
A suspect or witness admitting to providing aid or assistance when interviewed.
A witness providing you with evidence of another person’s involvement based on their observations.
Receiving information indicating that others were involved in the offence.
Penalties – s311(2) CA 1961
Penalties – s311(2) CA 1961
Same punishment as if he had attempted to commit that offence.
Knowing - accessory after the fact
Knowing - accessory after the fact
The accused must have knowledge that the person that they are being an accessory to was party to an offence at the time of assisting them.
Simester and Brookbanks
Knowing means knowing or correctly believing. The belief must be a correct one, where the belief is wrong a person cannot know something.
Person
Person
Gender neutral. Proven by judicial notice or circumstantially.