Liabilites Flashcards
Accessory after the fact s71(1) CA61
1) Knowing any person to be part to an offence.
Knowing – the accused must have knowledge that the person that they are being an accessory to party to an offence at the time of assisting them.
Semester and Brookbanks- knowing means knowing or correctly believing the belief must be a correct one, where the belief is wrong a person cannot know something
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.
R v Briggs- knowledge may also be inferred from wilful blindness or a deliberate abstention from making inquiries that would confirm the suspected truth.
Person- gender neutral. Proven by judicial notice or circumstantially.
Party- s66(1) CA61 defined as being anyone who
- commits the offence
- Does or admit an an act for the purpose of aiding any person to commit the offence
- Abets any person in the commission of the offence
- Incites, counsels or procures any person to omit the offence.
Offence- an act or omission that is punishable on convection under any enactment and are demarcated into four categories.
A person charged with being an accessory after the fact is entitled to insist on proof of the principal crime and to challenge the evidence even if the principal offender has pleaded guilty
2) receives comforts or a person OR tempers with or actively suppresses any evidence against him or her
Receives comforts or assists the accused as a deliberate act for the purpose of assisting the person to avoid justice. The act done must help the person in someway.
Conspiracy s310(1)
- Conspires
- With any person
- To commit any offence or
- To do or omit, in any part of the world,
- anything of which the doing or omission in New Zealand would be an offence.
Omission
The agreement between the parties concerned may also have as its object an omission (failure to act) as opposed to the commission of an offence and as such this must not be overlooked.
withdrawing from the agreement
A person withdrawing from the agreement is still guilty of conspiracy as are those people who become party to the agreement after it has been made. However a person can effectively withdraw before the actual agreement is made.
Completion of conspiracy
The offence is complete on the agreement being made with the required intent. No further progression towards the completion of the offence nor further involvement by the parties involved in the agreement is required.
Agreement requires
physical and mental faculties
The mens rea (mental intent) necessary for a conspiracy is:
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
The actus reus (physical element) of conspiracy is the agreement between two or more people to put their common design into effect. The agreement must be made before the commission of the acts which make up the full offence and the object of the conspiracy.
Deliberate act
“Intent” means that act or omission must be done deliberately. The act or omission must be more than involuntary or accidental.
Two or more people
This is proven circumstantially. A person cannot conspire alone; there must be another conspirator for an offence to be committed. This may include, as one of the parties, a person who is unable to carry out the substantive offence themselves. For example, this might be someone who has a physical impediment that does not enable the person to commit the substantive offence. Despite such an impediment it does not lessen their involvement in any conspiracy to which they are a party.
Conspiring with spouse or partner
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.
Offence explained
“Offence” and “crime” are words that are used interchangeably in statute, and there is no material difference between them. They may be described as any act or omission that is punishable on conviction under any enactment, and are demarcated into four categories described in s6, Criminal Procedures Act 2011.
Act omission defined
Act: To take action or do something, to bring about a particular result: Oxford Dictionaries, Oxford University Press.
Omission: the action of excluding or leaving out someone or something, a failure to fulfil a moral or legal obligation: Oxford Dictionaries, Oxford, University Press.
Jurisdiction Section 7, Crimes Act 1961
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 be 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.
Thus a person charged with conspiracy need not have been in New Zealand at the time of the act, omission or event. It is an offence not only to conspire to commit an offence in New Zealand, but also to conspire to do or omit in any part of the world, anything the doing
or omitting of which would be an offence if done or omitted in New Zealand. Not all acts or omissions forming part of the offence need be committed in New Zealand; some, perhaps almost all, may occur outside.
Conspiracy entered into overseas
Under the common law rules as to jurisdiction over conspiracy offences a person who has entered into a conspiracy overseas is amenable to the jurisdiction of New Zealand courts only if they are later physically present in New Zealand and they act in continuance of the conspiracy.
Conspiracy to commit an offence overseas
Under s310 of the Crimes Act 1961, it is an offence to conspire to
commit an offence or to do or omit to do anything, in any part of the world that would be an offence in New Zealand. The person has a defence if they are able to prove that the act is not an offence under the law of the place where it was to be committed.
Admissibility of evidence
The intention, of the parties involved, to actually carry out the offence is an essential element to a conspiracy charge. There must be a common aim to commit some offence and an intention that the aim is to be effected.
Investigation procedure for conspiracy- witnesses and suspects
- Interview and obtain statements from witnesses covering:
the identity of the people present at the time of the agreement - with whom the agreement was made
- what offence was planned
- any acts carried out to further the common purpose.
Suspects
- Interview the people concerned, and obtain statements, to establish:
the existence of an agreement to commit an offence, or
- the existence of an agreement to omit to do something that would amount to an offence, and
- the intent of those involved in the agreement
- the identity of all people concerned where possible
- whether anything was written, said or done to further the common purpose.
Charging with conspiracy
Generally, charges of conspiracy should not be filed in situations where the specific (substantive) offence can be proved. Laying both a substantive charge and a related conspiracy charge is often
undesirable because:
The evidence admissible only on the conspiracy charge may have a
· prejudicial effect in relation to other charges.
The judge may disallow the evidence as it will be too prejudicial, ie the jury may assume the defendant’s guilty knowledge or intent regarding the other charge and not look at the evidence, basing its assumption on the conspiracy charge.
The addition of a conspiracy charge may unnecessarily complicate and prolong a trial.
Where the charge of conspiracy is not founded on evidence or is an abuse of process, it may be quashed.
Severance may be ordered. This means that each charging document may be heard at separate trials.
Attempting to commit an offence defintion
Crimes Act 1961 s72 Definition of attempts
(1) Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.
The requirement for “intent” in section 72(1) suggests that an intention to commit the offence only will be sufficient and that there cannot be an attempt where an offence is defined solely in terms of recklessness or negligence. Two examples highlighting the difference between an “intent to commit an offence” and “recklessness” are shown below.
Three elements of an attempt offence
Case law has established the following three conditions that must apply for an ‘attempt’ conviction to succeed:
-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 ommission was sufficiently close
The suspect behaviour must satisfy all three conditions, at a minimum, to constitute an attempt. Additionally there is the requirement that it must be legally possible to commit the offence, in the circumstances. A person can be convicted of an offence that was physically impossible to commit.
When proving an attempt to commit an offence it must be shown that the accused’s intention was to commit the substantive offence.
Inferring intent from the act
The intent of the offender(s) may be inferred from the act itself (what they did) and/or proved by admissions or confessions (what they said).
A question of fact
Whether that intent exists or not is a question of fact; a question that the jury decides.
Act or omission defined
Act: To take action or do something, to bring about a particular result: Oxford Dictionaries, Oxford University Press.
Omission: The action of excluding or leaving out someone or something, a failure to fulfil a moral or legal obligation: Oxford Dictionaries, Oxford. University Press.
Acts must be sufficiently proximate to the full offence
Section 72(3) Crimes Act 1961 outlines that the accused must have done or sufficiently omitted to do some act(s) that is/are sufficiently proximate (close) to the full proximate to offence. Effectively, the accused must have started to commit the full offence the full offence
and have gone beyond the phase of mere preparation – this is the “all but” rule.
Several acts together may constitute an attempt
In concluding that Harpur’s conduct was sufficiently proximate to the full offence, the Court of Appeal held that his actions need not be considered in isolation; sufficient evidence of his intent was available from the events leading up to that point.
Impossibility
The wording in the statute “whether in the circumstances it was possible to commit the offence or not” refer to a physical or factual impossibility and not to a legal impossibility. This means a person can be convicted of an offence that was physically impossible to commit, but cannot be convicted of an offence that was legally impossible to commit.
When an act is physically or factually impossible
An act is physically or factually impossible if the act in question amounts to an offence, but the suspect is unable to commit it due to interruption, ineptitude, or any other circumstances beyond their control.
Act completed sufficiently proximate to intended offence
Once the acts are sufficiently proximate, the defendant has no defence that they:
were prevented by some outside agent from doing something that was
·necessary to complete the offence; eg interruption from police
failed to complete the full offence due to ineptitude, inefficiency or
·insufficient means, eg insufficient explosive to blow apart a safe
were prevented from committing the offence because an intervening event
·made it physically impossible, eg removal of property before intended theft.
Function of the judge and jury
The judge must decide whether the defendant had left the preparation stage and was already trying to effect completion of the full offence.
The jury must then decide whether the facts presented by the Crown have been proved beyond reasonable doubt and, if so, must next decide whether the defendant’s acts are close enough to the full offence.
Unable to charge with attempt
You are not able to charge someone with an attempt to commit an offence where:
The criminality depends on recklessness or negligence, eg manslaughter.
·An attempt to commit an offence is included within the definition of that
·offence, eg 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.
