Attempts, parties, conspiracy, receiving case law / definitions Flashcards
R v RING
In this case the offenders intent was to steal property by putting his hand in the pocket of the victim. Unbeknown to the offender the pocket was empty. Despite this he was still able to be convicted of attempted theft, because the intent to steal whatever property may have been discoverable in the pocket was present in his mind and demonstrated by his actions. The remaining elements were also satisfied
R v HARPUR
The Court may have regard to the conduct viewed cumulatively up to the point where the conduct in question stops…. the defendants conduct may be viewed in its entirety. Considering how much remains to be done is always relevant, though not determinative.
Police v JAY
A man bought hedge clippings believing they were cannabis
R v DONNELLY
Where stolen property has been returned to the owner or legal title to such property has been acquired by any person, it is not an offence to subsequently receive that property even though the receiver may know that the property had previously been stolen or dishonestly obtained
R v SANDERS
A conspiracy does not end with the making of an agreement. The conspiratorial agreement continues in operation, and therefore in existence until completion of its performance, or abandonment or in any other manner by which agreements are discharged
R v WHITE
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 suspects is never established and remains unknown.
MULCAHY v R
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 or more agree to carry it (the intended offence) into effect, the very plot is an act itself.
Agreement
A person withdrawing from the agreement is still guilty of conspiracy as are those who become party to the agreement after the agreement has been made.
The offence is complete (conspiracy) as soon as the agreement is made
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
R v RENATA
The Court held that where the principal offender cannot be identified, it is sufficient to prove that each individual accused must have been either a principal or a party in one of the ways contemplated by s66(1)
LARKINS 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
ASHTON v Police
An example of a person owing a legal duty to a third party or the general public, is a person teaching another person to drive. That person is, in NZ, under a legal obligation to take reasonable precautions because under s156 CA61 he is deemed to be in control of a dangerous thing
R v RUSSELL
The Court held the accused was morally bound to take active steps to save his children, but by his deliberate abstention from doing so, 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
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.
R v LUCINSKY
The property received must be the property stolen or part thereof, and not some other item for which the illegally obtained property had been exchanged or which are the proceeds.
R v HARNEY
Recklessness means the conscious and deliberate taking of an unjustified risk. In NZ it involves proof that the consequence complained of could well happen, together with an intention to continue the course of conduct regardless of the risk.
R v DONNELLY
Where stolen property has been returned to the owner, or legal title to any such person has been acquired by any person, it is not an offence to subsequently receive it, even though the receiver may know that property had previously been stolen or dishonestly obtained
R v COX
Possession involves two elements. The first, often called the physical element, is actual or potential physical custody or control. The second, often described as the mental element, is a combination of knowledge and intent; knowledge in the sense of awareness by the accused that the substance is in his possession, and and intention to exercise possession
R v CULLEN
There are four elements for receiving:
1) awareness that the item is where it is
2) awareness that the item has been stolen
3) actual or potential control of the item; and
4) an intention to exercise that control over the item
Receives - sec 246(3) CA61
The act of receiving any property stolen or obtained by any other imprisonable offence is complete as soon as the offender has, either exclusively or jointly with the thief or with any other person, possession of or control over the property, or helps in concealing or disposing of the property
Possession
ACTUAL possession arises where the thing in question is in a persons physical custody or control.
POTENTIAL possession arises when the person has the potential to have the thing in question in their control. Eg: storing it at a friends house, or through an agent.
The MENTAL element is a combination of both knowledge that the person possesses the item in question, and an intention to possess the item
Property - s2 CA61
Property includes any real or personal property, or any estate or interest in any real or personal property, money, electricity and any debt, and anything in action, and any other right or interest.
Theft sec 219(4) CA61
For tangible property; theft is committed by a taking when the offender moves the property or causes it to be moved
GUILTY KNOWLEDGE (receiving)
R v KENNEDY
The guilty knowledge that the thing has been stolen or dishonestly obtained must exist at the time of receiving
VALUE (receiving)
Under s247 the value of the relevant property determines the appropriate penalty
TITLE
“a right or claim to the ownership of the property” (Oxford dictionary).
Title or ownership of a thing is the legal right to possession of that thing.
Where property is obtained by deception, the offender gains both possession and title. However the type of title has limitations in these circumstances. Title can be voided.
