Association Offences Flashcards
Act, Section & Elements of Conspiring to Commit Offence
Conspiring to Commit an Offence
Section 310 Crimes Act 1961
Sentance: Half the term of the full offence or a maximum of 7 years.
- 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.
Define Conspires
Two of more people forming an agreement to do an unlawful act or to do a lawful act by unlawful means. Where there is only the intent to commit the offence without an agreement, then no offence is committed.
Mulcahy v R
A conspiracy consists not merely in the intent of two or more people, but in the agreement of two or more people to do an unlawful act.
Can someone withdraw from a conspiracy agreement?
No, once an agreement is made they cannot withdraw. One may however reconsider and withdraw before the agreement is made.
R v Sanders - When a conspiracy ends
A conspiracy does not end with the making of the agreement. The agreement continues until it is ended by its completion or abandonment.
What are the elements of an agreement?
- Mens rea (Mental Intent)
- An intention of the parties involved to agree, and
- an intention that the relevant course of conduct should be pursued by those parties to the agreement.
The offenders’ intent must be to commit the full offence.
- Actual Agreement (Actus reus)
- The actual agreement of two or more people to carry out the offence. Physical acts such as words or gestures are considered to be the actus reus, whether express or implied.
Additional info:
A simple verbal agreement will suffice and there is no need for the parties involved to have made a decision on how they will actually commit the offense .
Mere passive presence or knowledge of an intention does not amount to being a party to the conspiracy.
Define intent
A deliberate act or omission with intent to produce a specific result. The act or omission must be more than accidental or involuntary.
R v Collister
The circumstantial evidence from which an offenders’ intent may be inferred by;
-Their words and actions before, during and after the offence
- The surrounding circumstances
- The nature of the act itself.
R v White
Where you can prove that a suspect conspired with two or more people whose identities are unknown, that suspect can still be convicted even if the identity of the other parties is never established.
Defense to Conspiracy
The defense for conspiracy comes from Section 310(3) CA1961 - It is a defense if the accused can prove that doing the act or omission in the plan country is not an offense there.
E.g Planning while in New Zealand to marry a second wife (Bigomy) in Saudi Arabia is not an offence as Bigomy is not an offence in Saudi Arabia.
Why is laying a substantive charge and a related conspiracy charge undesirable?
- Evidence admissible only on the conspiracy charge may have a prejudicial effect in relation to other charges. A judge may disallow evidence as it will be too prejudicial.
- The addition of a conspiracy charge may unnecessarily complicate and prolong a trial.
- A judge may order the matters to be separated into different trials.
Define Offence
Any act or omission that is punishable on conviction under any enactment and a demarcated into four categories described in section 6 of the criminal procedure Act 2011
Define Offence / Crime
Any act or omission that is punishable on conviction under any enactment.
When Interviewing suspects for conspiracy points should be covered?
- The existence of an agreement to commit an offence
- An omission to do something that would amount to an offence
- The intent of those involved in the agreement
- Identity of all parties
- Whether anything was written, said or done to further the common purpose.
There must be independent evidence of the conspiracy for a conspirator’s evidence to be admitted as evidence against his or her co-conspirator(s).
Act, Section and elements of Attempting to commit an Offence
Section 72(1) Crimes Act 1961
- Intent to commit and offence
- Act - They did or omitted to do something to achieve the offence
- Proximity - Their act or omission was sufficiently close to the full offence.
R v Ring
An attempt is made if the offender has the relevant intent and this is demonstrated by their actions.
Define sufficiently proximate
Section 72(3) outlines the accused must have acted sufficiently proximate to the full offence. Effectively the accused must have stated the full offence and gone beyond the point of mare preparation.
R v Harpur
The court may have regard to the conduct viewed cumulatively up to the point when the conduct in question stops. How much remains to be done is always relevant but not determinative.
Higgins v Police
It is possible to commit an attempted offence where it is legally possible but not physically possible. Eg mistakingly growing tomato plants, believing Cannabis is growing.
Police v Jay
A man bought hedge clippings believing they were cannabis - Its physically impossible as the Cannabis does not exist however he had the relevant intent to purchase Cannabis when he paid for the grass clippings.
R v Donnelly
Where stolen property has been returned to the owner, it is not an offence to subsequently receive it, even though the receiver may know that the property had previously been stolen.
Attempts - Function of the Judge and Jury
Judge - Decide whether the defendant had gone beyond mare preparation and was already trying to effect the completion of the full offence.
Jury - Decide whether the facts have been established beyond a reasonable doubt and that the defendant intended to commit the full offence.
You cannot prosecture someone for an attempt to commit an offence where?
- Criminality depends on recklessness or negligence - eg manslaughter
- An offence where the act must be completed for the offence to exist - eg. demands menace
- An attempt to commit an offence is included within the definition - eg assault
When is an attempt complete?
When the defendant commits an act that is sufficiently proximate to the intended offense, even if they then change their mind and voluntarily withdraw.
Once an offender has committed acts that are sufficiently proximate to the full offence, there are three situations that do not amount to a defense to the charge. what are those three situations?
- They were prevented by some outside agent from doing something that was necessary to complete the offence - Eg interruption by Police.
- They failed to complete the full offence due to ineptitude, inefficiency or insufficient means - Eg Insufficient explosives to plow apart a safe.
- They were prevented from committing the crime because an intervening event made it physically impossible - Eg. Removal of the property before the intended theft.
Act, Section, Elements of Parties to Offences
Parties to Offences Section 66 (1) (a - d) CA1961
(1) Everyone is a party to and guilty of an offence who -
(a) Actually commit 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.
What do you need to prove for parties to 66(1)?
- The identity of the defendant
- An offence has been successfully committed
- The elements of the parties to offence (66(1)) have been satisfied.
When must have participation have occurred for parties to?
Participation must have occurred before or during the commission of the offence and before the completion of the offence.
What is 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 R v Renata
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 3 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 Section 66(1)
What is Larkins v Police
It is not necessary that the principal knows they are being assisted however, there must be proof of actual assistance.
Define Aids
Aids means to assist, either physically or by giving advise and information.
Define Abets
Abets means to instigate or encourage.
What is 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 drive. That person is in New Zealand under a legal duty to take reasonable precautions because 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, by this deliberate inaction, and by giving the encouragement and authority of his presence and approval to his wife act he became an aider and abettor and thus a secondary offender.
Define Incite
To rouse, stir up, stimulate, animate, urge or spur on a person
Define Counsels
advising a person, or planning the commission of an offence for another person.
Define Procures
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.
R v Betts and Ridley
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.
Probable Consequence Qualifications
- No requirement that person ‘A’ knows of foresees the precise manner in which a secondary offence may be committed by person ‘B’, ‘A’ only needs to realise that an offence of that type is probable.
- There is no requirement that ‘A’s foresight of the secondary offence includes any appreciation of the consequences of the physical elements of the offence,
How might the involvement of parties be established?
- A reconstruction of the offence committed, thus indicating more than one person was involved.
- The principal offender acknowledges or admitting that others were involved in the offence.
- A suspect or witness admitting to proving aid or assistance when interviewed.
- A witness proving you with evidence of another person’s involvement based on their observations
- Receiving information indicating that others were inveoved in the offence.
How might the involvement of parties be established?
- A reconstruction of the offence committed, thus indicating more than one person was involved.
- The principal offender acknowledges or admitting that others were involved in the offence.
- A suspect or witness admitting to proving aid or assistance when interviewed.
- A witness proving you with evidence of another person’s involvement based on their observations
- Receiving information indicating that others were involved in the offence.