Association Offences Flashcards
Conspiracy - definition
A conspiracy is an agreement between two or more people to commit an offence.
A conspiracy occurs before the intended offence is committed.
A conspiracy comes after intent and before the attempt to commit the offence.
Conspiracy - When the charge of conspiracy if appropriate
When the intended offence had not actually been committed and there is insufficient evidence to prove an attempt.
Conspiracy - Legislation
Section 310 C.A.1961
1. Subject to provisions of subsection (2) of this section, everyone who conspires with any person to commit any offence, or to do or omit, in any party of the world, anything of which the doing or omission in NZ would be an offence, is liable to imprisonment for a team not exceeding 7 years if the maximum punishment for that offence is 7 years imprisonment, and in any other case is liable to the same punishment as if he had committed that offence. 2. This section shall not apply where a punishment for the conspiracy is otherwise expressly prescribed by this Act or by some other enactment. 3. Where under this section anyone if charged with conspiring to do or omit anything anywhere outside NZ, it is a defense to prove that the doing or omission of the act to which the conspiracy relates was not an offence under the law if the place where it was, or was to be, done or omitted.
Conspiracy - Elements
- Conspires
- With any person
- To commit any offence or
- To do or omit, in any party of the world
- Anything of which the doing or omission in NZ would be an offence
Conspiracy - Mulcahy v R (not only intention but also agreement)
MULCAHY v R
A conspiracy consists not merely in the intention of two or more, but in the agreement of to or more to do an unlawful act, or lawful act by unlawful means. So long as such a design rests on 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.
Where there is only the intention to commit an offence without agreement, then no offence is committed.
Conspiracy - Omission
The agreement between the parties to commit an offence may also involve an omission (failure to act) as oppose to action - the commission of an offence.
I.e. security deliberately fails to lock a door to allow the associates to gain entry and commit burglary.
Conspiracy - Withdrawing from the conspiracy agreement (who is guilty/not guilty)
A person is guilty of conspiracy who:
• Withdraws from the agreement;
• Becomes a party to the agreement after it has been made.
A person is not guilty of conduct who:
• Withdraws before the agreement has been made.
Conspiracy - Completion of conspiracy (when offence is complete)
The offence is complete as soon as the agreement is made with required intent.
Conspiracy - R v Sanders (When conspiracy ends)
R v Sanders
Conspiracy does not end with 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.
Conspiracy - Agreement - actus reus
- Actus Reus of conspiracy is the actual agreement between two or more persons to commit an offence.
- Actus Reus can involve physical act/words/gesture used by the conspirators to make an agreement.
- The offence does not have to be committed.
- If the offence is carried out - the appropriate charge is attempt or actual commission of the offence.
Conspiracy - Simple verbal agreement will suffice.
There is no need for the conspirators to decide how they will actually commit the offence.
Mere presence or knowledge or an intention to commit an offence does not amount to conspiracy. There must be an agreement to commit the offence.
Conspiracy - Agreement - mens rea
Mens Rea:
• Intention to agree (by those who involved)
• Intention to pursue relevant course of conduct (by those who involved)
The offender must intent to commit the full offence.
If there is no intent - there is no offence.
Conspiracy - Intent
In a criminal law context there are two specific types of intention in an offence.
Firstly, there must be an intention to effect the act.
Secondly, there must be an intention to get a specific result.
Intent means that the act or omission must be done deliberately.
The act or omission must be more than involuntary or accidental.
Conspiracy - Proving intent
The onus is on the persecution to prove the offender’s intent beyond reasonable doubt.
A good practice to support any admissions/confessions with circumstantial evidence such as:
• Action/Words before, during, after the offence
• Surrounding circumstances
• Nature of the act
Conspiracy - Two or more people
+
R v White (unknown identity)
Proven circumstantially - a person cannot conspire alone, there must be another conspirator.
R v White (unknown identity)
Where you can prove that a suspect conspired with other parties (one or more people) whose identity are unknown, that suspect can still be convicted even if the identity of the other parties is never established and remains unknown.
Conspiring with spouse or partner - Legislation
Section 67 C.A.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 or any other person.
Act and omission - definition
Act:
To take action or to do something, to bring about a particular result.
Omission:
The action of excluding or leaving out someone or something, a failure to fulfill a moral or legal obligation.
The purpose of the act/omission must be so that the offense can be facilitated.
Conspiracy - Jurisdiction
- A person charged with conspiracy need not have been in NZ at the time of the act/omission/event.
- Acts/omissions forming part of the offense need not be done in NZ.
- To conspire to commit an offence in NZ is an offence.
- To conspire to do/omit anything in any party of the world, the doing/omitting of which would be an offence if done/omitted in NZ it also an offence.
Conspiracy - Conspiracy entered overseas
NZ courts have no jurisdiction over a conspirator who enters into conspiracy overseas and who never comes to NZ.
NZ courts have jurisdiction only if the offender later is physically present in NZ and act in continuance of the conspiracy.
Conspiracy - Conspiracy to commit an offence overseas
Under section 310(1) it is an offence to conspire to commit an offence or to do or omit anything, in any party of the world, that would be an offence in NZ.
Under section 310(3) it is a defence to prove that the doing or omission of the act to which conspiracy relates was not an offence under the law of that place where it was or was to be done or omitted.
Conspiracy - Conspiracy between parties in NZ and other country
The court will take view that the conspiracy was formed in both countries simultaneously, and given that NZ is one of those countries, it would lie within jurisdiction of NZ courts.
Conspiracy - Admissibility of evidence
There must be:
• Common aim to commit an offence and
• Intention to effect the aim
Anything a conspirator does/says to further the common aim is admissible against the co-offender.
This is an exemption to hearsay rule and as such conspirators should be jointly charged.
However, it does not include explanations after the offence had been committed.
Then, the explanation is evidence only against the person making it.
There must be independent evidence of the conspiracy for an offender’s evidence to be admitted as evidence against his co-offender.
Conspiracy - conspirator is incapable
A person can be charged with conspiracy in the circumstances where that person himself is incapable to carry out the substantive offence.
Conspiracy - specific offences
C.A. 1961 and MODA1975 have some specific provisions for conspiracy to commit certain offences (murder, piracy, making false accusations, etc), in those cases action is to be taken under the relevant provisions. In all other cases section 310 applies.
Conspiracy - investigation - witness
Interview witness covering the following:
1. ID of people present at the time of the agreement 2. With whom the agreement was made 3. What offence was planned 4. Any acts taken to further common purpose
Conspiracy - Investigation - Suspect
Interview suspect to establish the following:
1. Existence of agreement to commit an offence, OR 2. Existence of agreement to do/omit something that would amount to an offence 3. ID of people involved in an agreement 4. Intent of people involved in an agreement 5. Whether was anything said/written/done to further common purpose
Conspiracy - investigation - search warrant
Consider SW, interception of e-mails/phone calls/social media to locate evidence to support the charge.
Conspiracy - Prosecution - Charging
- If the commission of the offence can be proved, a person should not be charged with conspiracy.
- Although a person can be charged with conspiracy if a charge of substantive offence does not represent the total criminality.
(i. e. A and B burn a house and then conspire to murder witness. Arson - substantive charge, conspiracy to murder - conspiracy charge)
Charging with both, substantive charge and related conspiracy charge is not appropriate because:
1. Evidence admissible on conspiracy charge may have prejudicial effect in relation to other charges 2. Judge may disallow the evidence as they may be too prejudicial 3. Addition of conspiracy charge may complicate and prolong trial 4. Where the charger of conspiracy is not founded on evidence, it may be quashed 5. Each charging document may be heard in separate trial (severance)
Conspiracy - NCO approval
Supervisor is to evaluate evidence and is to approve conspiracy charge.
Attempt - Legislation
Section 72 C.A.1961 - Definition of attempt
1. Everyone who, having an intent to commit an offence, does or omitts 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. 2. 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. 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.
There conditions of attempt and what must be proved
All three conditions must apply:
1. Intent (mens rea) - to commit an offence
2. Act (actus reus) - done/omitted something to achieve the aim
3. Proximity - act/omission was sufficiently close
In addition to that:
• It must be legally possible to commit an offence
• A person can be convinced if it was physically impossible to commit an offence
In each case the following must be proved:
1. Suspect's ID 2. Suspect intended to commit an offence 3. Suspect did/omitted something to achieve his object
Attempt - intent must be established
It must be shown that the accused intended to commit a substantial offence.
There must be intent. Recklessness or negligence is not sufficient.
Attempt - proving intent
The intent may be inferred from:
• The act itself (what they did)
• Admission/confession (what they said)
R v Ring (offender’s intent)
In this case the offender’s intent was to steal property by putting his hands into the pocket of the victim. Unbeknown to the offender the pocket was empty. Despite this he was be able to be convicted of an 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 action. The remaining elements were also satisfied.
Attempt - intention - question of fact
Whether the intent exist or not is a question of fact.
The jury is to decide.
Attempt - Actus Reus
Does or omitts an act for the purpose of accomplishing his object.
Referred to physical action/conduct which constitutes an element of an offence.
Attempt - Act 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.
Attempt - Acts that may constitute an attempt
Attempt - Acts that may constitute an attempt
1. Lying in wait, searching for or following a contemplated victim 2. Inciting the victim to go to the scene of contemplated crime 3. Recce of the scene of the contemplated crime 4. Unlawfully entering a structure or vehicle in which it is contemplated that the crime will be committed 5. Possessing/collecting material to be employed in the commission of the crime 6. Soliciting an innocent agent to engage in conduct constituting an element of the crime
Attempt - Several facts together may constitute an attempt
The actions need not be considered in isolation and may be viewed collectively.
R v Harpur
R v Harpur
The court may have regard to the conduct viewed cumulatively up to the point where 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.
Attempt - proximity test
The determination of proximity comes down to circumstances which exist for each individual offence under investigation.
The accused’s action must be immediately or sufficiently proximate to the intended offence.
Attempt - test for proximity
• 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? Has the offender taken a step t in the actual crime itself?
“yes” - attempt
“no” - preparation / not an offence
Attempt - proximity is a question of law
The judge is to decide on proximity based on the assumption that the facts of the case are proved.
Attempt - elements to help to determine proximity
Take into consideration:
1. Fact 2. Degree 3. Common sense 4. Seriousness of the offence
Attempt - impossibility
“whether in the circumstances it was possible to commit an offence or not” referred to physical or factual impossibility, not to a legal impossibility.
Person can be convicted of an offence which was physically impossible to commit, but cannot be convicted of an offence which was legally impossible to commit.
Attempt - Act physically/factually impossible
Act in question amounts to the offence, but the offender is unable to commit it due to interruption or any other circumstances beyond his control.
Higgins v Police (cannabis was not cannabis)
Police v Jay
Higgins v Police
Where plants are being cultivated as cannabis are not in fact cannabis it is physically, not legally, impossible to cultivate such prohibited plant. Accordingly, it is possible to commit the offense of attempting to cultivate cannabis.
Police v Jay
A man bought hedge clipping believing they were cannabis.
Attempt - Act legally impossible
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R v Donnelly
Where the completed act would not be an offence, even if the offender had criminal intent.
(i.e. an attempt to sell a hallucinatory plant, which is not illegal to sell)
R v Donnelly
Where stolen property has been returned to the owner or legal title to any such property has been acquired by any other 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.
Attempt - when attempt is complete
An attempt is complete after completion of the act which is sufficiently proximate to the intended offence
(Even if the defendant changes his mind or makes voluntarily withdrawal after completion of that act)
Once the act is sufficiently proximate, there is no defense that the defendant:
1. Was interrupted by someone from doing what was necessary to complete the offence
○ Interrupted by police
2. Failed to complete the full offence for to insufficient means
○ Insufficient amount of explosive to be a safe
3. Was prevented from committing the offence because it was physically impossible
○ Property intended to be stolen was removed
Attempt - attempt to commit an attempt
There is no such a thing as attempt to commit an attempt.
There is an offence under Summary Offences Act 1981 to prepare to commit an offence.
Attempt - function of judge and jury
Judge:
Is to decide whether the defendant had left the preparation stage and was trying to effect the completion of the full offence.
If the Judge decides that the accused’s action was more than mere preparation, the case goes to jury.
Jury:
If to decide whether the facts were proved beyond reasonable doubt and when the accused’s action was close enough to the full offence.
The jury must also be satisfied that the accused intended to commit the offence.
Attempt - unable to charge with attempt
Attempt - unable to charge with attempt
1. Criminality depends on recklessness or negligence (manslaughter) 2. Attempt to commit an offence included in definition (assault) 3. The act has to be completed in order for the offense to exist (demand with menaces)
Attempt - filling the charges
- Offender charged with full offence but found guilty of an attempt only - can be convicted of an attempt (s.149 Criminal Procedure Act 2011)
- Offender charged with attempt but but full offence is proved - can only be convicted of an attempt (s.150 Criminal Procedure Act 2011)
Attempt - Penalty - Legislation
Attempt - Penalty - Legislation
Where no punishment expressly provided, section 311 C.A.1961 applies
Section 311 C.A.1961 - Attempt to commit or procure commission of offence
1. Everyone 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.
Parties - Legislation
Section 66 C.A.1961 - Parties to offence
1. Everyone is a party to and guilty of an offence who - a. Actually commits the offence, or b. Does or omitts 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 2. Where two 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 of the commission of that offence was known to be a probable consequence of the prosecution of the common purpose.
Parties - Section 70 C.A.1961 - Offence committed other than offence intended
Section 70 C.A.1961 - Offence committed other than offence intended
1. Everyone 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, counseled or suggested. 2. Everyone 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, counseling or procuring, and which the first mentioned person knew to be likely to be committed in consequence of thereof.
Parties - What must be proved
• Suspect ID
• An offence has been successfully committed
• The elements of the offence s.66(1) have been satisfied
Where there is more than one offence, the elements must apply to each offence separately
Parties - When participation must occur
The participation must occur before or during the commission of the offense and before the completion of the offence.
Participation/Assistance after the commission of the offence is an offence of Accessory After the Fact s.71 C.A.1961
Parties - Intention to help or encourage must exist (R v Pene)
R v Pene
A party must intentionally help or encourage - it’s is insufficient if they were reckless as to whether the principal was assisted or encouraged.
Parties - Principal party
Principal party is a person who actually commits an offence.
The person satisfies actus reus and mens rea of the offence.
There may be more than one principal offender (two assault third person)
Parties - Secondary party / Secondary offender
People who assisted, abet, incited, counseled or procured the principal offender.
Secondary party do not themselves commit the offence.
The acts of the secondary offender must be before or contemporaneous with the acts of principal offender.
Where the act was a part of the original planning (providing means of escape, etc), then the person would deemed to be a principal party.
Where the act was done after the commission of the offense, then the person becomes accessory after the fact (not a party).
Second party does not have to be present during the commission of the offense (ie person who unlocked the door for burglar)
Parties - Methods to consider multiple offenders to be principal
Method 1: Each offender satisfies elements of the offence committed
Method 2: Each offender separately satisfies part of each actus reus with necessary mens rea.
When combined with actus reus of another party, this makes complete actus reus oof the offence.
(i.e. one person prepared a poison, another delivers the poison)
R v Renata (principal offender is not identified)
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)
Parties - To aid
To aid means to assist in the commission of the offence (physically / advice / information)
The person aiding the principal does not have to be present at the scene.
The secondary party must assist the principal in some way.
That assistance must be proved.
The principal must be aware that they are being assisted by the secondary party (ideally but not necessary)
Parties - Actual proof of assistance is required (Larkin v Police)
Larkin v Police
While it is unnecessary that the principal should be aware that he or she is being assisted, there must be proof of actual assistance.
Parties - Examples of assistance:
- Keeping lookout for someone committing burglary
- Providing a screwdriver for someone interfering with a vehicle
- Telling someone that their neighbours are away, so that burglary can be committed
Parties - Aiding by omission
Person A has a legal duty and control over person B.
Person A fails to perform that duty to prevent person B from committing an offence.
Person A is liable by omission.
Parties - To abet
To abet means to instigate / encourage / urge another to commit an offense.
Person must be present at the scene.
Mere presence at the scene is no sufficient - thete must be some kind of support and encouragement.
(i.e. person A encourage person B to kill person C during the fight between B and C)
Parties - Abetting by omission (passive acquiescence)
Person must be present at the scene.
Mere at the scene and observing the commission of the office without doing anything is insufficient, unless then person has a legal duty to the victim or public or there is a special relationship between that person and principal party.
Parties - Legal duty
(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 NZ, under a legal duty to take reasonable precautions, because under section 156 of the C.A.1961 he is deemed to be in charge if a dangerous thing.
Parties - Special relationship
Where there is a special relationship and no intervention on the part of secondary party, then it might amount to approval and encouragement.
