Association Offences

Question 1

Conspiracy

- Liability

Answer 1

Section 310, Crimes Act 1961
• 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.

• Punishment: 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 had committed that offence.

Question 2

Section 310(2)

Answer 2

This section shall not apply where a punishment for the conspiracy is otherwise expressly prescribed by this Act or by some other enactment.

Question 3

Conspiracy

- defence

Answer 3

Section 310(3)
Where under this section any one is charged with conspiring to do or omit anything anywhere outside New Zealand, it is a defence to prove that the doing or omission of the act to which the conspiracy relates was not an offence under the law of the place where it was, or was to be, done or omitted.

Question 4

Mulcahy v R

Answer 4

“A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rests in intention only it is not indictable. When two agree to carry it (the intended offence) into effect, the very plot is an act in itself ….”

Question 5

R v Sanders

Answer 5

“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 6

The mens rea (mental intent) necessary for a conspiracy is:

Answer 6

• 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.

Question 7

The actus reus (physical element) of conspiracy

Answer 7

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 which make up the full offence and the object of the conspiracy.

Question 8

R v Mohan

Answer 8

“a decision to bring about, in so far as it lies within the accused’s power, the commission of the offence …”

Question 9

R v Waaka

Answer 9

A “fleeting or passing thought” is not sufficient; there must be a “firm intent or a firm purpose to effect an act”.

Question 10

Circumstantial evidence from which an offender’s intent may be inferred can include:

Answer 10

• the offender’s actions and words before, during and after the event
• the surrounding circumstances
• the nature of the act itself.

Question 11

R v White

Answer 11

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 12

Conspiring with a spouse or partner

Answer 12

Section 67, Crimes Act 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.

Question 13

Act

- Def

Answer 13

To take action or do something, to bring about a particular result
- Oxford Dictionaries

Question 14

Omission

- Def

Answer 14

The action of excluding or leaving out someone or something, a failure to fulfil a moral or legal obligation
- Oxford Dictionaries

Question 15

Jurisdiction

- Conspiracy

Answer 15

Section 7, Crimes Act 1961
For the purpose of jurisdiction, where any act or omission forming part of any offence, or any event necessary to the completion of any offence, occurs in New Zealand, the offence shall be deemed to be committed in New Zealand, whether the person charged with the offence was in New Zealand or not at the time of the act, omission, or event.

Question 16

Conspiracy

- Witness statements cover

Answer 16

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.

Question 17

Conspiracy

- Suspect interviews cover

Answer 17

Interview the people concerned, and obtain statements, to establish:
• the existence of an agreement to commit an offence, or
• the existence of an agreement to omit to 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.

Question 18

Generally, charges of conspiracy should not be filed in situations where the specific (substantive) offence can be proved. Why?

Answer 18

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 other charges.
• The judge may disallow the evidence as it will be too prejudicial, ie the jury may assume the defendant’s guilty knowledge or intent regarding the other charge and not look at the evidence, basing its assumption on the conspiracy charge.
• 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. This means that each charging document may be heard at separate trials.

Question 19

Withdraw from conspiracy

Answer 19

You can effectively withdraw from a conspiracy before an agreement is reached, but not following the agreement to commit the intended offence.

Question 20

Conspiracy

- independent evidence

Answer 20

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).

Question 21

Attempting to commit an offence

72(1)

Answer 21

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.

Question 22

Attempting to commit an offence

72(2)

Answer 22

The question whether an act done or omitted with intent to commit an offence is or is not only preparation for the commission of that offence, and too remote to constitute an attempt to commit it, is a question of law.

Question 23

Attempting to commit an offence

72(3)

Answer 23

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

Attempts
- Case law has established the following three conditions that must apply for an ‘attempt’ conviction to succeed. What are they?

Answer 24

• 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

Question 25

Attempts

- Intent must be established

Answer 25

The requirement for “intent” in section 72(1) suggests that only an intention to commit the offence will be sufficient and that there cannot be an attempt where an offence is defined solely in terms of recklessness or negligence.
(i.e. no offence of attempted manslaughter)

Question 26

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. 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 27

Attempts

- A question of fact

Answer 27

Whether that intent exists or not is a question of fact; a question that the jury decides.

Question 28

“all but” rule

Answer 28

Generally, to prove an attempt the accused must have done or omitted to do some act(s) that is/are sufficiently proximate (close) to the full offence. Effectively, the accused must have started to commit the full offence and have gone beyond the phase of mere preparation

Question 29

R v Harpur

Answer 29

[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 30

Attempts

- The test for proximity

Answer 30

• 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; that is to say, has he taken a step in the actual offence itself?

Question 31

Higgins v Police

Answer 31

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 32

Police v Jay

Answer 32

A man bought hedge clippings believing they were cannabis.

Question 33

R v Donnelly

Answer 33

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 34

Attempts:

Act completed sufficiently proximate to intended offence

Answer 34

Once the acts are sufficiently proximate, the defendant has no defence that they:
• were prevented by some outside agent from doing something that was necessary to complete the offence; eg interruption from police
• failed to complete the full offence due to ineptitude, inefficiency or insufficient means, eg insufficient explosive to blow apart a safe
• were prevented from committing the offence because an intervening event made it physically impossible, eg removal of property before intended theft.

Question 35

Attempts:

Function of the judge and jury

Answer 35

The judge must decide whether the accused had left the preparation stage and was already trying to effect completion of the full offence.
The accused need not have taken all steps necessary towards completing 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 acts are close enough to the full offence.
If the jury finds that the actus reus has been established, it must also find the same in respect of the mens rea – that is, the prosecution’s evidence must also convince the jury beyond reasonable doubt that the defendant intended to commit the full offence.

Question 36

Attempts:

Unable to charge with attempt

Answer 36

You are not able to charge someone with an attempt to commit an offence where:
• The criminality depends on recklessness or negligence, eg manslaughter.
• An attempt to commit an offence is included within the definition of that offence, eg assault.
• The offence is such that the act has to have been completed in order for the offence to exist at all. For example, demanding with menaces: it is the demand accompanied by the menace that constitutes the offence.

Question 37

Attempts:

Filing of charges

Answer 37

Where an accused is charged with the full offence, but is found guilty of only the attempt, they can be convicted of the attempt (s149 Criminal Procedure Act 2011).

Where an accused is charged with an attempt, yet the full offence is proved, the accused can only be convicted of the attempt (s150 Criminal Procedure Act 2011).

When framing the charge, add the words “attempted to” before the main text. After the reference to the Act and section that creates the full offence, add the Act and section that creates the offence of attempt.

Question 38

Attempts

- Penalties

Answer 38

Several provisions provide for express penalties for attempts to commit specific offences, eg s129(1) of the Crimes Act 1961, attempted sexual violation.

Where no punishment is expressly provided, the penalty section to be applied is s311(1):

• Attempt to commit or procure commission of offence:
• Every one who attempts to commit any offence in respect of which no punishment for the attempt is expressly prescribed by this Act or by some other enactment is liable to imprisonment for a term not exceeding 10 years if the maximum punishment for that offence is imprisonment for life, and in any other case is liable to not more than half the maximum punishment to which he would have been liable if he had committed that offence.
• Life = 10 years
• other = half penalty

Question 39

Attempt

- must prove

Answer 39

− the identity of the suspect(s), and
− they intended to commit an offence, and
− they did, or omitted to do, something to achieve their object.

Question 40

You cannot prosecute someone for an attempt to commit an offence where:

Answer 40

− the criminality depends on recklessness or negligence, eg in manslaughter an attempt to commit an offence is included within the definition of that offence; in assault ‘that he has, present ability to effect his purpose’.
− the offence is such that the ultimate act must be completed in order for the offence to exist at all, eg a person cannot attempt to demand money with menaces.

Question 41

Parties to offence

- Sec 66(1)

Answer 41

(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 42

Parties to offence

- Sec 66(2)

Answer 42

Where 2 or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a 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 43

Offence committed other than offence intended

- Sec 70(1)

Answer 43

Every one who incites, counsels, or procures another to be a party to an offence of which that other is afterwards guilty is a party to that offence, although it may be committed in a way different from that which was incited, counselled, or suggested.

Question 44

Offence committed other than offence intended

- Sec 70(2)

Answer 44

Every one who incites, counsels, or procures another to be a party to an offence is a party to every offence which that other commits in consequence of such inciting, counselling, or procuring, and which the first-mentioned person knew to be likely to be committed in consequence thereof.

Question 45

Parties to an offence

- must prove

Answer 45

In each case of charging a person with being a party to an offence, you must prove:
• The identity of the defendant, and
• an offence has been successfully committed; and
• the ingredients of the offence (s66(1)) have been satisfied.
Where there is more than one offence committed, the ingredients must be applied to each offence separately.

Question 46

Parties to an offence

- When participation must have occurred

Answer 46

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.

Question 47

R v Pene

Answer 47

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

Question 48

Parties to an offence

- Secondary party

Answer 48

Secondary parties are those people whose assistance, abetment, incitement, counselling or procurement is sufficient under s66(1)(b),(c) or (d) of the Crimes Act 1961 to make them also liable due to their participation in the offence committed by the principal(s). This is despite the fact that the secondary party does not themselves commit that offence.

Question 49

Parties to an offence

- Principal party

Answer 49

A person will be a principal offender, and liable under s66(1)(a), where he or she personally satisfies the actus reus and mens rea requirements of the offence. (There may be more than one principal offender in relation to the offence committed.)

Question 50

R v Renata

Answer 50

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 51

Aids

Answer 51

To aid means to assist in the commission of the offence, either physically or by giving advice and information. In order to aid, the presence of the person offering the aid is not required at the scene, before, or at the time of the offence being committed.

Question 52

Larkins v Police

Answer 52

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 53

Parties to:

- examples of assistance

Answer 53

• 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.

Question 54

Aiding by omission

Answer 54

Note that it is possible to aid or abet by omission. Liability for aiding by omission will arise where A, who has a legal duty to act and a right or power of control over B, fails to observe or discharge the duty by exercising that control to prevent B committing an offence.

Question 55

Abets

Answer 55

Abets means to instigate or encourage; that is, to urge another person to commit the offence.

Example: A husband discovers his wife with another man. A fight breaks out between the husband and the other man. While the fight continues the woman encourages the man to kill her husband.

As with aiding, the presence of the abettor at the scene of the offence at the time of its commission is not required.

Question 56

Ashton v Police

Answer 56

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 under s156 of the Crimes Act 1961 he is deemed to be in charge of a dangerous thing.

Question 57

R v Russell

Answer 57

The accused was charged with the murder of his wife and two sons. Following an argument between the accused and his wife, the wife, in the presence of the accused, allegedly jumped into a swimming pool with both children, drowning them all. The accused failed to render assistance to his wife or their children. 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 58

Incites

Answer 58

To incite means to rouse, stir up, stimulate, animate, urge or spur on a person to commit the offence.

For example, a sports fan spurs on another fan to assault a protester and yells approval while the offence takes place.

Question 59

Counsels

Answer 59

Counsels means to intentionally instigate the offence by advising a person(s) on how best to commit an offence, or planning the commission of an offence for another person(s). Counselling may also mean “urging someone to commit an offence”, in which case it will overlap with incitement.

It is not necessary that the counsellor knows the clear detail in respect of the offence to be committed; it is sufficient that they know that an offence of that kind was intended. Thus, it is sufficient for the person to know that a robbery is to be committed, they need not know the actual target address nor the details of the intended victim.

There is no specific need for the person offering advice or assistance to be completely familiar with the offence intended.

Question 60

Procures

Answer 60

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. It requires a stronger connection between the secondary party and the commission of the offence than is evidenced in aiding, abetting or inciting.

Procurement may be carried out by fraud, persuasion, words or conduct, such as an offer of payment.

Example:
A woman obtains the services of a ‘hit man’ to kill her husband and offers money or sexual services to him as payment.

Question 61

R v Betts and Ridley

Answer 61

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 62

Parties to:

A question of fact

Answer 62

Whether an accused knew that furthering their common aim in a particular way would probably result in another of the parties committing a particular offence is a question of fact, on which the jury must decide.

Question 63

Innocent agents

Answer 63

Innocent agents are sometimes used by the offenders. An innocent agent is someone who is unaware of the significance of their actions. In cases where the offenders use an innocent agent to bring about the actus reus, the innocent agent is not regarded as a participant in the offence, they are simply the mechanism. The law treats the offender as the principal in such cases.

An innocent agent cannot be convicted as a secondary party.

Example:
An offender prepares a poison and puts it in a wine glass before handing it to a waiter for it to be given to the intended victim. Despite it being the waiter who gives the victim the poison, it is the offender who is responsible for the offence committed.

Question 64

Parties to

- Establishing involvement of parties

Answer 64

The involvement of parties may be established by:
• 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.

Question 65

Parties to

- time limits

Answer 65

Any time limits associated with charging a person as a secondary party is the same as that for the principal offender(s).