Conspiracy, Attempts, Together with, Accessory

Question 1

What is Mens Rea?

Answer 1

Mens rea is the presence of a guilty mind.

Question 2

What are some defences for intent?

Answer 2

-Infancy (section 21)
• Defence of self or another (section 48)
• Defence of property (section 52-54)
• Insanity (section 23)
• Compulsion (section 24)

Question 3

What is a conspirary?

Section 310(1), Crimes Act 1961

Answer 3

A conspiracy is an agreement between two or more people to commit an offence.

Question 4

Mulcahy v R (1868) LR 3 HL 306, 317

In relation to conspiracy …

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

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

Answer 5

• 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 6

The following three conditions must apply for an ‘attempt’ conviction to succeed?

Answer 6

• 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
The suspect behavior must satisfy all three conditions, at a minimum, to constitute an attempt.

Question 7

R v Wilcox [1982] 1 NZLR 191

In relation to attempts.

Answer 7

The defendant’s act must be the commencement of the execution of the intended offence; a step in the actual crime itself. In other words, the defendant “must have begun to perpetrate the crime”.

Question 8

R v Harpur [2010] NZCA 319

In relation to attempts and proximity…

Answer 8

“In assessing the conduct there must be a full evaluation in terms of time, place and circumstance”. What remains to be done is always relevant, but not determinative. The Court is permitted to focus more on the quality of the defendant’s acts and the time, place and circumstances in which they occurred, and less on abstract tests of preparation and proximity.

Question 9

Simester and Brookbanks6 suggests the following questions should be asked in determining the point at which an act of mere preparation may become an attempt….

Answer 9

• 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 crime itself?

Question 10

Name three case law examples of physical impossibility as it relates to attempts…

Answer 10

• In R v Ring7 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 and he did not obtain any property.
• Higgins v Police 8 relates to a person growing tomato plants believing they were cultivating cannabis. The Court said it is physically, not legally, impossible to cultivate such prohibited plants. Accordingly, it is possible to commit the offence of attempting to cultivate cannabis.
• In Police v Jay 9 a man bought hedge clippings believing they were cannabis.

Question 11

SITUATIONS WHERE YOU ARE UNABLE TO CHARGE WITH ATTEMPT?

Answer 11

The criminality depends on recklessness or negligence, e.g. manslaughter.
• An attempt to commit an offence is included within the definition of that offence, e.g.
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 12

What is the Act and Section of being a party to an offence?

Answer 12

s66(1)(a) to (d) of the Crimes Act 1961.

Question 13

What is this case law in relation to?

R v Betts and Ridley (1930) 22 Cr App R 148

Answer 13

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 14

When being a party to an offence, how can a party withdraw before the offence has been committed?

Answer 14

• notice of withdrawal either in words or actions;
• unequivocal withdrawal;
• communication of the fact of withdrawal to the principal offenders; and
• the taking of all reasonable steps to undo the effect of the party’s previous actions.

Question 15

Being an accessory after the fact is found in what section?

Answer 15

Section 71, Crimes Act 1961

Question 16

Four essential elements must be proved to establish liability under s 71(1) (Accessory after the fact)?

Answer 16

a) That an offence was committed by the person received, comforted or assisted by an accessory;
b) That, at the time of receiving, comforting or assisting that person, the accessory knew that person was a party to the offence;
c) That the accessory received, comforted or assisted that person or tampered with or actively suppressed any evidence against that person;
d) That, at the time of receiving, comforting or assisting etc., the accessory’s purpose was to enable that person to escape after arrest or to avoid arrest or conviction.

Question 17

R v Mane (1989) 5 CRNZ 375

In relation to accessory after the fact.

Answer 17

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

Question 18

R v Crooks [1981] 2 NZLR 53 (CA)

‘Knowledge’

Answer 18

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

At the time of the assistance being given, an accessory must possess the knowledge of what?

Answer 19

• an offence has been committed, and
• the person they are assisting was a party (principal or secondary) to that
offence.

Question 20

Name the five - ACTUS REUS (acts) OF ACCESSORY?

Answer 20

• receives
• comforts
• assists
• tampers with evidence
• actively suppresses evidence.

Question 21

The intent held by the accessory when performing the act that assists the offender must be one of the three contained within the statute; to enable the offender to?

Answer 21

• escape after arrest
• avoid arrest
• avoid conviction.

Question 22

To be guilty of an attempt to commit and offence a person must?

Answer 22

• Intent to commit the offence, and

- Take real and substantial step towards achieving that aim.