DEFINITIONS Flashcards
Conspires
(Mulchay v R)
Conspiracy consists of an intention and agreement between 2/more people to do an unlawful act or a lawful act by unlawful means. So long as such a design rests on intention only, it is not indictable. Where 2 people agree to carry out the intended offence into effect, the very plot is the act itself.
Conspiracy requires mental and physical elements:
- Actus Reas
An agreement between 2/more people to put their common design into effect
- Mens Reas
An intention of those involved to agree. An intention that the relevant course of conduct should be pursued by those party to the agreement.
(R v Sanders)
Conspiracy does not end with the making of an agreement. The conspirational agreement continues in operation and existence until it is ended with the completion of it’s performance/abandonment or in any other manner which agreements are discharged
With any person
Gender neutral, proven by Judicial Notice
Between 2/more persons, a person cannot conspire by themselves.
Section 67 - Crimes Act 1961 - A husband and wife/civil union partner can be convicted of conspiracy.
(R v White)
Where you can prove a suspect conspired with a party whose identity is unknown, that suspect can be convicted or conspiracy even if the identity of the parties is never established or remains unknown
To commit any offence
Offence - any act/omission punishable on conviction by any enactment
(Churchill v Walton)
The Conspirators need not know that the act was an offence, but they must know the act is unlawful.
Knowing any person to be a party to an offence
Knowledge:
The accused must have knowledge the person they are being an accessory to was party to an offence at the time of assisting them
(Simester and Brookbanks)
Knowing means correctly believing. The belief must be correct, where belief is wrong, a person cannot know something
(R v Crooks) Knowledge
Actual knowledge or belief, having no real doubt that the person assisted was a party to the relevant offence.
(R v Briggs)
Knowledge may also be inferred from willful blindness or a deliberate abstention from making inquiries that would confirm the suspected truth
Person:
Gender Neutral proven by Judicial Notice
Parties - Section 66(1) Crimes Act 1961
Everyone is party to and guilty of an offence who:
a) actually commits the offence OR
b) does or omits 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
Receives/Conforts/Assists that Person
OR
Tampers with OR Actively suppresses any evidence against him or her
Receives:
Harboring an offender or offering them shelter
Comforts:
Accessory provides an offender with foot and clothing
Assists:
Deliberate act to assist person evade justice. Act must actually help person
Tampers with:
Alter evidence against the offender
Actively suppresses evidence:
Concealing/destroying evidence against the offender
In Order to enable him or her to escape after arrest
OR
To avoid arrest or conviction
Escape after arrest:
Act specifically assisted offender after they were arrested
(R v Mane)
To be considered an accessory the acts done by the person must be after the completion of the offence.
Avoid arrest/conviction:
(R v Gibbs)
Acts done by accessory must have helped other person evade justice
(R v Levy)
Deliberate act in relation to the evidence against the offender for the purpose of assisting the offender evade justice.
A witness making any
Witness:
Person who gives evidence and is able to be cross-examined in a proceeding
Assertion as to any matter of fact/opinion/belief/knowledge
Assertion:
Something declared or stated positively
Matter of Fact:
Fact is a thing done, actual occurrence or event
Opinion:
Section 4 - Evidence Act 2006
In relation to a statement offered in evidence, means a statement of opinion that tends to prove or disprove a fact
Belief:
Essentially a subjective feeling regarding the validity of an idea or sets of facts
Knowledge:
(Simester and Brookbanks)
Knowing means correctly believing. The belief must be correct, where belief is wrong, a person cannot know something .
In any judicial proceeding
Judicial Proceeding:
Includes giving evidence by audio-visual link from another location (overseas/in NZ)
Forming part of that witness evidence on oath
Oath:
Declaration before a person who has authority to administer an oath, invokes some religious belief and says a thing is true or right.
Intended to mislead the Tribunal
Intention to mislead:
Offence of perjury is complete when false evidence is given accompanied by an intention to mislead the tribunal.
NO DEFENCE - If witness later recants and informs tribunal of the falsity of earlier evidence given.
Receives
Receiving - Section 246(3)
Receiving is complete as soon as the offender has either exclusively or jointly with the thief or any other person, possession or, or control over, the property or helps in concealing or disposing of the property.
(R v Cox)
Possession involves 2 elements:
Physical - Actual/potential physical custody/control
Mental - knowledge and intention (Knowledge having possession and intention to exercise possession)
(Cullen v R) - 4 elements of possession
a) awareness the item is where it is
b) awareness the item has been stolen
c) actual or potential control over the item
d) an intention to exercise control over the item
Any Property
Property:
Section 2 - Crimes Act 1961
Real/personal property, estate or any interest
(R v Lucinsky)
The property received must be the property stolen or illegally obtained and not some other item for which the illegally obtained property had been exchanged or which are the proceeds.
Stolen
OR
Obtained by any other imprisonable offence
Theft:
Section 219(1) - Crimes Act 1961
Dishonestly, without claim of right, taking any property with intent to permanently deprive the owner of any interest in that property.
Obtains:
Section 217 Crimes Act 1961
Obtains or retains for themselves or any other person
Imprisonable Offence:
Section 5 - Criminal Procedures Act 2011
Offence punishable by imprisonment
Knowing that property to have been stolen or obtained by any imprisonable offence
OR
Being reckless as to whether that property had been stolen or so obtained
Knowledge:
(Simester and Brookbanks)
Knowing means correctly believing. The belief must be correct, where belief is wrong, a person cannot know something.
(R v Kennedy)
Guilty knowledge the thing has been stolen or dishonestly obtained must exist and the time of receiving
Reckless:
Conscious and deliberate taking of an unjustified risk
(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.
(R v Harney):
Recklessness involves proof the consequences companied of could well happen, together with an intention to continue the course of conduct regardless of the risk.
