Case Law

Question 1

Case Law: Conspires

Answer 1

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.

Question 2

Case Law: When a Conspiracy Ends

Answer 2

R v Sanders

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 3

Case law: Intent

Answer 3

R v Collister

Intent can be inferred by actions and words, said and made, before, during or after the event, the surrounding circumstances and the nature of the act itself

Question 4

Case Law: Two or more people for Conspires

Answer 4

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 parties is never established and remains unknown.

Question 5

Case Law: Jurisdiction for Conspires overseas

Answer 5

Poynter v Commerce Commission

Reinforced the position that New Zealand courts had no jurisdiction over a conspirator who enters into the conspiracy abroad and who never comes to New Zealand

Question 6

Case Law: Intent in attempts

Answer 6

R v Ring

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 7

Case Law: Attempted Murder

Answer 7

R v Murphy

In R v Murphy, an attempted murder matter, the Court held it was necessary for the Crown to establish an actual intent to kill, rather than any of the other implied intents by which murder can occur.

Question 8

Case Law: Sufficiently Proximate

Answer 8

R v Harpur

The Court may have regard to the conduct viewed cumulatively up to the point when the conduct in question stops.

The defendants conduct may be considered in its entirety.

Considering how much remains to be done is always relevant, though not determinative.

Question 9

Case Law: Physically impossible attempts

Answer 9

Higgins v Police

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 10

Case Law: Physically impossible attempts part 2

Answer 10

Police v Jay

A man bought hedge clippings believing they were cannabis

Question 11

Case Law: Legally Impossible Attempt

Answer 11

R v Donnelly

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 12

Case Law: Intention to help in Parties

Answer 12

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.

Question 13

Case law: Multiple Offenders

Answer 13

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 the principal or a party in one of the ways contemplated by s66(1).

Question 14

Case Law: Proof of assistance for Parties

Answer 14

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.

Examples of assistance
* 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 15

Case Law: Legal duty with parties

Answer 15

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

Example:
An army sergeant who watches as a subordinate assaults another person and does nothing to prevent it would be liable as a secondary party to the assault.

This is because the sergeant has a power of control over the subordinate and a lawful duty to prevent such incidents and intervene.

Question 16

Case Law: Special Relationship

Answer 16

R v Russell

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 17

Case Law: Common Intention

Answer 17

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.

Question 18

Case Law: Knowing in accessory after the fact

Answer 18

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.

Question 19

Case Law: Wilful Blindness

Answer 19

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.

Question 20

Case Law: Offence completion for accessory after the fact

Answer 20

R v Mane

To be considered an accessory the acts done by the person must be after the completion of the offence.

Question 21

Case Law: Possession

Answer 21

R v Cox

Possession involves two elements. The first, the physical element, is
actual or potential physical custody or control. The second, the mental
element, is a combination of knowledge and intention: knowledge in the
sense of an awareness by the accused that the substance is in his
possession and an intention to exercise possession.

Question 22

Case Law: Possession for receiving

Answer 22

Cullen v R

There are four elements of possession for receiving:
(a) awareness that the item is where it is;
(b) awareness that the item has been stolen;
(c) actual or potential control of the item; and
(d) an intention to exercise that control over the item.

Question 23

Case Law: Stolen Property for receiving

Answer 23

R v Lucinsky

The property received must be the property stolen or illegally obtained (or part
thereof), and not some other item for which the illegally obtained property had
been exchanged or which are the proceeds.

Example:
Where a thief steals $100 in $20 notes and subsequently provides one of
these notes to a receiver, the offence of receiving is committed (this where
the other elements are also satisfied). If, in the same circumstances, the thief
visits a bank and exchanges the $20 notes for a smaller or larger
denomination and then completes an exchange with the would be receiver,
no offence is committed even where the person receiving the funds is aware
of the initial theft. This is because the notes exchanged are not the property
originally stolen or part thereof.

Question 24

Case law: Guilty Knowledge in receiving

Answer 24

R v Kennedy

The guilty knowledge that the thing has been stolen or dishonestly obtained must
exist at the time of receiving.

Question 25

Case Law: Recklessness

Answer 25

Cameron v R

Recklessness is established if:
(a) the defendant recognised that there was a real possibility
that:
(i) his or her actions would bring about the proscribed
result; and/or
(ii) that the proscribed circumstances existed; and
(b) having regard to that risk those actions were unreasonable.