Evolution Of The Offence Flashcards
What are the 5 statutory defenses?
Infancy Defence of self or of another Defence of property Insanity Compulsion
What are the six common law defenses?
Impossibility Necessity Consent Intoxication Mistake Sane automatism
Section act and elements of conspiracy?
s310(1) CA 1961
An agreement between two or more persons to commit an imprisonable offence
What does section 72 of the crimes act cover?
Attempts.
Must an intent to commit offence
Must have done or attempted to do an act
And that act must be sufficiently proximate to the completion of the offence
What is the standard of proof required?
Beyond a reasonable doubt.
The prosecution is required to prove that no other logical explanation can be derived from the facts except that the defendant committed the offence.
For a conviction in a case of conspiracy what must the crown prove?
Actus reus: an agreement formed via words acts gestures between two or more people to commit an offence.
Mens rea: an intention to carry out the full offence.
failure doesn’t matter, factually impossible doesn’t matter, legal impossibility does matter. Incompetence doesn’t matter.
Case law Mulcahy
A conspiracy consists not merely of the intention of two or more but in the agreement of two or more to do an unlawful act by unlawful means.
Withdrawing from an agreement
A person withdrawing from an agreement is still guilty of conspiracy
What does section 67 of the Crimes Act outline?
The liability when conspiring with a spouse or partner.
A person is capable of conspiring with his or her spouse or civil union partner or with his or her spouse or civil u ion partner and any other person.
Proof of attempt
The requisite intention may be proven by admissions or confessions, or inferred from the act itself.
Attempts: a question of fact?
Whether the intent exists or not is a question of fact; a question that the jury decides.
The actus reus of attempt
Defendant must have done or omitted to do something that is sufficiently proximate to the full offence.
Must have started to commit the full offence
Must have gone past the phase of preparation
R v Wilcox
The defendants actions must be the commencement of the execution of the intended offence
the defendant must have begun to perpetrate the crime
R v Harper
On assessing the conduct, must evaluate time place and circumstance. What remains to be done is always relevant but not always determinative
Section 72(c): a question of law
Proximity is a question of law decided by the judge based on the assumption that the facts of the case are proved.
Simester and Brookbanks test for proximity
Questions to ask when determining the point that preparation becomes an attempt:
Has the offender done anything more than getting himself in a position to attempt?
Has the offender commenced execution?
If the answer to either is yes then there has been an attempt. If not, conduct can be classed as preparation.
Once an act is sufficiently proximate to the intended offence, the attempt is complete even if:
They were prevented by some outside agent
The failed to complete it due to ineptitude
They were prevented because of an intervening event
Function of the judge for attempts?
Judge must decide whether accused has left the preparation stage And was already trying to effect completion of the full offence.
Situation where you are unable to charge with attempts?
The criminality depends on recklessness or negligence eg manslaughter
At attempt to commit an offence is included within the definition of that offence eg assault
The offence is such that the act has to be completed in order for it to exist at all eg demanding with menace
Parties: what is the distinction between principal and secondary parties?
Person actually committing the offence is liable as a principle
Those who assist, abet, incite, counselling, procure the principle are liable as secondary parties
Difference between parties tō and accessory after the fact?
Parties: participation occurred before or contemporaneous with the commission of the offence and before completion of the offence
Accessory after the fact: provides assistance to principle or secondary offender following the commission of the offence.
Section 66(1)(a)-(d) of the 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
Definition of Aids?
To assist in the commission of an offence, either physically or by giving information
The presence of the person offering the aid is not required at the scene before during or after
Sedition of abets?
To instigate or encourage, to urge another to commit the offence
The presence of the abetted at the scene at the time of its confusion is not required
Definition of incites?
To stir up, stimulate, animate, or spur person to commit the offence
Definition of counsels?
To intentionally instigate offence by advising on how to best commit an offence, or planning the commission of an offence for another person.
Definition of procures?
Setting out to see that something happens, and taking appropriate steps to ensure that it does.
Requires that the secondary party causes the principle to commit the offence
Party to a secondary offence?
S66(2) Crimes Act
Can occur when a common intention is formed by two or more people to assist each other to commit an offence.
R v Betts and Ridley
An offence where no violence is contemplated and the principle offender in carrying out the common aim uses violence, a secondary offender taking no physical part in it would be held liable for the violence used.
s71 accessory after the fact:
knowing a person to have been party to the offence
recieves comforts or assists that person
or tampers with or actively surprises any evidence against him or her
in order to enable him or her to escape arrest or avoid arrest and conviction
Four essential elements must be provided to establish liability under 71:
An offence was committed by the person received comforted or assisted
At the time of reviving comforting or assisting, the accessory knew that person was party to an offence
The accessory received comforted assisted or actively tampered worh or aye pressed any evidence
At this time, the accessory’s purpose was to enable that person to escape after arrest or avoid arrest or conviction
R v Mane
The be considered an accessory the acts done by the person must be after the completion of the offence
R v Crooks
Knowledge means actually knowledge or belief in the sense of having no real doubt that the person assisted was party to the relevant offence. Mere suspicion of their involvement is insufficient.
R v Briggs
Knowledge may also be inferred from wilful blindness or a deliberate abstention from making enquires that would confirm the suspected truth.
Actus reus of accessory
Accessory must do an intentional act with the purpose of escape after arrest, avoid arrest, avoid conviction.
Intentional acts: receive, comfort, assist, tanker with evidence, actively surpress evidence.
What is the intent of an accessory?
To enable offender to:
Escape after arrest
Avid arrest
Avoid conviction
