Association Practice Flashcards
CON: When can you withdraw from an agreement?
If a person withdraws before the agreement is made, they would not be liable.
A person is still guilty of conspiracy if they are party to the agreement then withdraw afterwards.
CON: What is the mental and physical element of a conspiracy?
The mens rea (mental element):
- 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 acts reus (physical element):
- 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 which make up the full offence and the object of the conspiracy
- physical acts, words, or gestures used by the conspirators in making their agreement (whether this is an express or implied agreement)
*mere passive presence or knowledge of an intention does not amount to being a party to the conspiracy
CON: Explain what ‘intent’ is
There are two specific types of intent.
Deliberate Act:
- and act or omission must be done deliberately
Intent to produce a result:
- aim, object, or purpose
CON: What are three examples to prove a persons intent?
- the offenders actions and words, before, during, and after the event
- the surrounding circumstances
- the nature of the act itself
Can a person conspire on their own?
No, There must be another conspirator for the offence to be committed.
(R v White)
R v Malcahy
A conspiracy consists not merely in the intention of 2 or more but in the agreement of 2 or more to do an unlawful act.
What happens if a person enters into a conspiracy overseas?
Under common law rules, a person who entered into a conspiracy overseas is amendable to the jurisdiction of NZ law, ONLY if they are later physically present in NZ and they act in the continuance of the conspiracy.
NZ Courts have no jurisdiction over a conspirator who enters into the conspiracy abroad and who never comes to NZ.
CON: What is the admissibility of hearsay evidence?
Anything a conspirator or party to a joint charge says or does to further the common purpose is admissible against the others involved, this being an exception to the hearsay rile and as such conspirators should be jointly charged,
However this does not include explanations made after the common purpose is carried out. Then, the explanation is evidence only against the person making it.
CON: What do you need to cover off in a WITNESS statement re conspiracy?
- 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
CON: What do you need to cover off in a SUSPECTS interview re conspiracy?
- the existence of an agreement to commit an offence, OR
- the existence of an agreement to omit to do something that wold amount to an offence, and
- the intent of those involved in the agreement
- the identity of all people concerned where possible
- where anything was written, said or done to further the common purpose
CON: When charging, why is it undesirable to lay both a substantive charge and a related conspiracy charge?
- the evidence admissible only on the conspiracy charge may be 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 defendants 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 unneccessarily 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 mens that each charging document may be hard at seperate trials
ATTEMPT: What are the 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
R v Ring
In this case the offenders 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 action. The remaining elements were also satisfied.
ATTEMPT: Explain what is meant by ‘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.
ATTEMPT: What are some examples of acts that may constitute an attempt to commit an offence?
- lying in wait searching for or following the contemplated victim
- enticing the victim to go to the scene of the contemplated crime
- reconnoitring the scene of the contemplated crime
- unlawfully entering a structure, vehicle or enclosure in which it is contemplated that the crime will be committed
- possessing, collecting, or fabricating materials to be employed in the commission of the crime
- soliciting an innocent agent to engage in conduct constituting an element of the crime
ATTEMPT: Can a person still be charged with an attempt when an act is physically or factually impossible?
Yes, as they acted with criminal intent.
Suspects may be unable to commit the offence due to interruption, ineptitude, or any other circumstances beyond their control eg. a person failing to force open a door due to being to weak or they were interrupted by attending Police.
AATF: What does an “offence” mean?
Any act or omission that is punishable on conviction under any enactment, and are demarcated info four categories within S6, Criminal Procedures Act 2011.
R v Crooks
Knowledge means actual knowledge or belief in the sense of having no real doubt that the person assisted was a party to the relevant offence. Mere suspicion of their involvement in the offence is insufficient.
R v Briggs
As with a receiving charge under S246(1), knowledge may also be inferred from wilful blindness or a deliberate abstention from making inquiries that would confirm the suspected truth.
PERJ: Explain what is held under S113 CA1961 - Fabricating evidence.
Everyone is liable to 7 yers who, with intent to mislead any tribunal holding any judicial proceeding to which section 108 applies, fabricates evidence by any means other than perjury.
What are the elements of perjury?
- a witness making any
- assertion as to any matter of fact, opinion, belief, or knowledge
- in any judicial proceeding
- forming part of that witness’s evidence on oath
- known by that witness to be false, and
- intended to mislead the tribunal
PERJ: What is an opinion?
Opinion, in relation to a statement offered in evidence means a statement of opinion that tends to prove or disprove a fact.
PERJ: Under the Evidence Act 2006 (S24), what are some examples of opinion evidence that a witness may give?
- apparent age
- identity
- speed
- physical and emotional state of people
- condition of articles (worn, used, or new)
- whether a person is under the influence of drink
‘A witness may state an opinion in evidence in a proceeding if that opinion is necessary to enable the witness to communicate, or the fact-finder to understand, what the witness saw, herd, or otherwise perceived’
PERJ: When is the offence of perjury complete? And is there a defence?
At the time the false evidence is given accompanied by an intention to mislead the tribunal. There is no defence where the witness later recants and informs the tribunal of the falsity of the earlier evidence given.
There must be an intention to mislead the tribunal, where this intention is absent, no offence is committed.
PERJ: What are NINE examples of misleading justice under S116 & S117?
- preventing a witness from testifying
- wilfully going absent as a witness
- threatening or bribing witnesses
- concealing the fact an offence has been committed
- intentionally giving Police false information to obstruct their enquiries
- supplying false information to probation officers
- assisting a wanted person to leave the country
- arranging a false alibi
- threatening or bribing jury members
PERJ: When may you commence a prosecution for perjury?
Where it is recommended by the Courts or you are directed to do so by the Commissioner of Police. You may however, begin enquiries into an allegation of perjury without reference to the Court or Commissioner of Police.
How can complaints of perjury arise?
- an individual may complain that someone has perjured themselves
- a judge may state or direct in a court recommendation that the Police undertake inquiries into the truth of the evidence given by a witness
REC: What are the elements of receiving?
- act of receiving
- any property stolen, or obtained by any other imprisonable offence
- knowing that at the time of receiving the property that it had been stolen or obtained by any other imprisonable offence, or being reckless as to whether or not the property had been stolen or so obtained
REC: What are the three elements required to satisfy the act of receiving?
- there must be property which has been stolen or has been obtained by an imprisonable offence
- the defendant must have ‘received’ that property, which requires that the receiving must be from another (you cannot receive from yourself)
- the defendant must receive that property in the knowledge that it has been stolen or illegally obtained, or being reckless as to that possibility
REC: Under S246(3)
The act of receiving any property stolen or obtained by any other imprisonable offence is complete as soon s the offender has, with exclusively or jointly with the the or another person, possession of, or control over, the property or helps in concealing or disposing of the property.
R v Cullen
There are four elements of possession for receiving:
- awareness that the item is where it is
- awareness that the item was stolen
- actual or potential control of that item
- an intention to exercise that control over the item
REC: What must the prosecutor prove in order to establish a person has exercised control over an item?
The prosecution must prove the receiver arranged for the property to be delivered there, or alternatively, that on discovering the property, he or she intentionally exercised control over it. Intent to possess the property must also be satisfied.
R v Donnelly
Where stolen property has been returned to the owner or legal title to the property has been acquired by any person, it is not an offence to subsequently receive it, even though the receiver may know the the property had previously been stolen or dishonestly obtained.
REC: Define property
Property includes real and personal property, and any estate or interest in any real and personal property, money, electricity, and any debt, and anything in action, and any other right or interest.
REC: What is the concept of title? (define title)
A right or claim to the ownership of property. Title or ownership of a thing is the legal right to possession of that thing.
If property is obtained by deception, the offenders gets possession and title, however there are limitations to that title.
REC: What is voidable title?
Title that has been obtained by deception is ‘voidable title’. It means that the title can be avoided by the seller (complainant). Although the title is voidable, it is still title.
If an innocent buyer bought the property off the deceiver, they acquire good title. If the title has been voided prior to the innocent buyer purchasing the item, they do not acquire title to the goods.
