Evolution of the offence Flashcards
Conspiracy defined
Conspiring to commit offence
Section 310 Crimes Act 1961
(1) Subject to the provisions of subsection (2) of this section, everyone who conspires with any person to commit any offence, or do or omit, in any part of the world, anything of which the doing or omission in New Zealand would be an offence, is liable to imprisonment for a term not exceeding 7 years if the punishment for that offence exceeds 7 years imprisonment, and in any other case is liable to the same punishment as if he had committed that offence.
(2) This section shall not apply where a punishment for the conspiracy is otherwise expressly prescribed by this Act or by someother enactment.
(3) Where under this section any one is charged with conspiring to do or omit anything anywhere outside New Zealand, it is a defence to prove that the doing or omission of the act to which the conspiracy relates was not an offence under the law of the place where it was, or was to be, done or omitted.
Mulchahy 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 agree to carry it (the intended offence) into effect, the very plot is an act in itself…..”
R v Sanders (ending agreement)
“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.”
R v Gemmell
The essence of the offence of conspiracy is in the agreement to commit a substantive offence. The agreement need not be carried to fruition (indeed no steps to implement it need be taken), but there must have been an intention that such steps would be taken.
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.
Conspiring with spouse or partner
Conspiracy between spouses or civil union partners
Section 67 Crimes Act 1961
A person is capable of conspiring with his or her spouse or civil union partner or with his or her spouse or civil union partner and any other person.
Jurisdiction
Place of commission of offence
For the purpose of jurisdiction, where any act or omission forming part of any offence, or any event necessary to the completion of any offence, occurs in New Zealand, the offence shall be deemed to committed in New Zealand, whether the person charged with the offence was in New Zealand or not at the time of the act, omission, or event.
R v Sanders (Conspiracy jurisdiction)
It is sufficient if one act or omission forming part of the offence or “any event necessary to the completion of any offence” occurs in New Zealand.
Attempts defined
Attempts
Section 72 Crimes Act 1961
(1) Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his or her object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the act or not.
(2) The question whether an act done or omitted with intent to commit an offence is or is not only preparation for the commission of that offence, and too remote to constitute an attempt to commit it, is a question of law.
(3) An act done or omitted with intent to commit an offence may constitute an attempt if it is immediately or proximately connected with the intended offence, whether or not there was any act unequivocally showing the intent to commit that offence.
R v Ring (Attempts intent)
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.
R v Harpur (Attempt proximity to the offence-time/place/circumstance)
“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.
R v Donnelly (when an act is legally impossible)
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.
Parties defined
Parties to offences
Section 66, Crimes Act 1961
(1) Every one is a 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;
(c) abets any person in the commission of the offence; or
(d) incites, counsels, or procures any person to commit the offence.
(2) Where two or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose.
R v Renata (Parties- unable to identify principle offender)
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 Sec.66(1)
Larkins v Police (Actual proof of assistance is required)
While it is unnecessary that the principal should be aware that he or she is being assisted, there must be proof of actual assistance.
