MCQ/Short answer Flashcards
1
Q
What is an omission? give an example
A
An agreement may be an omission (failure to act) as oposed to the commission of an offence.
E.g A security guard deliberately fails to lock a door he would normally secure (the omission), with the aim being his associates gain entry to commit a burg (the offence)
2
Q
What did greenfield suggest the essence of conspiracy is?
A
An agreement to pursue a course of conduct which, if carried out, would amount to the commission of an offence or involve the commission of an offence by one or more of the parties to the agreement
3
Q
Can a person withdraw from a conspiracy agreement?
A
A person withdrawing from the agreement is still guilty of conspiracy as are those who have become party to the agreement after it has been made. However a person can effectively withdraw before the actual agreement s made
4
Q
What is an example of a person withdrawing from a conspiracy?
A
Three people intend to do a robbery, the first two agree that they collectively will commit the offence while the third reconsiders and withdraws before the agreement is made. The first two are co-conspirators but because the third withdrew before the agreement was made he would not be liable.
5
Q
When is the offence of conspiracy complete?
A
At the time of the agreement being made with the necessary intent. No further progression towards the completion of the offence or further involvement by parties involved in the agreement is required.
6
Q
Explain the mens rea and actus rea for conspiracy?
A
mens rea (mental intent) necessary is:
- an intention of those involved to agree
- an intention that the relevant course of conduct should be pursued by those party to the agreement
Actus rea (physical element)
- agreement between two or more to put their common design into affect. The agreement must be made before the commision of the acts.
A simple verbal agreement will suffice for actus rea (express or implied)
7
Q
Is passive presence or knowledge of an intention sufficient?>
A
no, mere knowledge or passive presence does not amount to being a party
8
Q
What are the two specific types of intent
A
Deliberate act - Means act or omission done deliberately, more than involuntary or accidental
Intent to produce a result - Intent to produce a specific result. specific result means ‘ aim objective or purpose’
9
Q
How is intent proved
A
R v collister
intent can be inferred through the circumstances
- offenders actions and words before during and after
-nature of the act itself
-surrounding circumstances
10
Q
How do you prove the fact that two or more people conspired?
A
Circumstantially, a person cannot conspire alone, must be another for the offence.
May include a person who is unable to carry out the substantive offence themselves, e.g may be someone who has a physical impediment where they cannot commit the substantive offence. Impediment does not lessen involvement in conspiracy.
11
Q
Discuss Jurisdiction in relation to conspiracy
A
S7 CA61 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 NZ or not at the time of the act omission or event.
Thus a person charged with conspiracy need not to have been in nz at the time of the act omission or event.
It is also a offence to conspire to do an offence in any part of the world not just nz.
12
Q
What was found in r v sanders in relation to jurisdiction?
A
Sufficient if one act or omission forming part of the offence or ‘any event necessary to the completion of any offence occurs’ in NZ
13
Q
Conspiracy entered into overseas
A
Conspiracies entered into overseas are amendable to ZN courts if they are later physically present in NZ and they continue to act in continuance of the conspiracy.
Poynter v commerce comission reinforced that nz courts have no jurisdiction over a conspirator who enters into a conspiracy abroad and never comes to nz
14
Q
Is there a defence to conspiracy?
A
Yes is a person conspires to do something if the act is not an offence under the law of the place it would be comitted.
E.g persons in nz conspire to do a bombing in australia. Still an offence as this would be illegal in aus.
Persons in nz conspire to take a second wife in saudi arabia, not subject to conviction in nz as this is lawful in saudi.
15
Q
Conspiracy across borders
A
R v Darwish, held that where a conspiracy is made between parties in nz and another country courts will take the view that the conspiracy was formed in both countries simultaneously.
16
Q
Is evidence gained against one party of the conspiracy admissible against the other party?
A
Yes as generally jointly charged and anything a party does to further the common purpose is admissible against the others involved, subject to hearsay rule
17
Q
When investigating conspiracy what should be covered off in witness statements?
A
Identity of people present at time of agreement
with whom the agreement was made
what offence was planned
any acts carried out to further the common purpose
18
Q
When investigating conspiracy what should be covered off with the suspects and established?
A
the existence of an agreement to commit an offence
the existence of an agreement to omit to do something that would amount to an offence
the intent of those involved in the agreement
the identity of all people concerned
whether anything was written said or done to further the common purpose
19
Q
When should you not file a charge of conspiracy?
A
Generally do not file a charge where the substantive offence can be proved.
as:
the evidence admissible only on the conspiracy charge may be prejudicial in relation to the other charges
the judge may disallow evidence as it will be too prejudicial.
the additional of the charge may unnecessarily complicate and prolong a trial
where the charge is not founded on evidence or an abuse of the process
severance may be ordered and this means the charge may be heard at a seperate trial
20
Q
When could you file a conspiracy charge in conjunction with the substantive offence (R v Humphries)
A
It may be appropriate to include a charge of conspiracy where the substantive offence does not adequately represent the total criminality.
eg
two people burn down a warehouse (arson) and then conspire to murderer a witness to the arson. In this case you would be justified in both charges.
21
Q
Who approves a conspiracy charge to be filed?
A
your supervisor needs to approve it
22
Q
What three conditions must be satisfied for an attempt conviction?
A
Intent (mens rea) to commit an offence
act (actus rea) that they did or omitted to do something to achieve that end
proximity - that the act or omission was sufficiently close
23
Q
What intent must be proved in a attempt?
A
That the defendant intended to commit the substantive offence
24
Q
What was discussed in r v murphy in relation to attempted murder?
A
held it was necessary for the crown to establish intent to kill rather than the other implied intents,
25
Can a offence defined by recklessness or negligence be attempted? provide examples
Cannot be an attempt for an offence which is defined in recklessness or negligence as s72(1) suggest only an intention to commit the offence will be sufficient
eg:
assault with intent to commit violation
requires a lack of reasonable belief in consent, mens rea being the same as attempted violation.
manslaughter
generally accepted that there is no offence of attempted manslaughter as an attempt to bring around a specific object. with manslaughter death is unintended, therefore contridictory to hold someone to attempt to bring about a death as a unintended consequence
26
Who determines intent in a trial?
Question for the jury whether the intent exists, not a question of fact
27
What are examples of acts that may constitute a attempt (6)
-Lying in wait, searching for or following the contemplated victim
-enticing the victim to go to the scene of the contemplated crime
-reconnoitering the scene of the contemplated crime
-unlawfully entering a structure, vehicle or enclosure in which it is contemplated the crime will be committed
-possessing collecting or fabricating materials to be employed in the commission of the crime
-soliciting an innocent agent to engage in conduct constituting an element of the crime.
28
What question should be asked in relation to proximity?
Has the offender done anything more than getting himself into a posistion 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?
29
Who determines proximity in a trial?
Question of law determined by judge
30
What should be considered to determine if a act is proximate?
fact, degree, common sense and seriousnesss of the offence, in their totality on a case by case basis
31
Can a person be convicted of an offence that would be impossible to commit?
Yes can be convicted of an offence impossible to commit, but not legally impossible to commit.
32
What are the three case laws that relate to whether an act is possible or not?
R v Ring - relates to attempted theft by reaching into a pocket containing nothing, held as attempts
Higgins V Police - Plants cultivated as cannabis but are not actually cannabis, physically impossible to commit offence but possible to commit the offence of attempts
Police v Jay - Refers to buying hedge clippings thinking they were cannabis, held as attempt.
All held as acted with criminal intent
33
When is a act legally impossible?
Where the completed act would not have been an offence, cannot be convicted even if they had criminal intent.
For example: attempting to sell hallucinatory plant datura, in the mistaken belief that possession of it is illegal.
R v Donnelly police recovered stolen property already and returned it and the defendant has gone to collect it. Held that could not be convicted as the stolen property had already been returned therefore no longer stolen.
34
When the defendants act is sufficiently proximate the the defendant no longer has what defences?
That they were prevented by some outside agent from doing something to complete the offence eg interuption from police
failed to complete the full offence due to ineptitude, inefficiency, or insufficient means. eg insufficient explosive to blow a safe
were prevented from committing the offence because an intervening event made it physically impossible eg removal of property before intended theft.
35
What are the functions of a judge and jury in an attempts case
judge determines if defendant has left preparation stage and was going on to commit offence, then goes to the jury.
Jury then decides whether the facts are proved beyound a reasonable doubt and that the defendants act were close enough to the full offence.
jury then decides if dfefendant has intended to commit the full offence.
36
What can you not charge for attempts?
criminality depends on recklessness or negligence
attempt to commit the offence is included in the definition of the offence (assault)
the offence is such that the act has to be completed for the offence to exist at all. eg demand with menace as the demand accompanied by the menace consitutes the offence
37
Discuss filing of attempts charges
Where charged with full offence but found guilty of attempt they can be convicted of the attempt
where defendant is charged with attempt but full offence proved only can be convicted of the attempt
38
What are the penalties for attempts?
Some offences carries specific penalties if not S311(1) is applied
Where no attempt prescribed by this act is liable to not exceed 10 years imprisonment if the max imprisonment is life, an in any other case is half of the maximum punishment for the offence.
39
What needs to be proved to charge a person with being a party
The identity of the defendant and
an offence has been successfully committed and
the elements of the offence have been satisfied
40
When participation must have occurred for someone to be a party
Before, during (contemporaneous with) the commission of the offence and before the completion of the offence
41
What makes a person a principal offender?
Satifies the actus reus and mens rea requirement of the offence.
42
What are the two methods by which multiple offenders may be considered principals? provide examples
1 - Each offender satisfies elements of offence committed seperately.
e.g two people actively assault another person
2 - Each offender separately satisfies part of the actus reas.
When combined their actions satisfy the actus rea of the offence
e.g offender prepares poison before handing it to the other offender to administer the poison.
43
Can you be a party to an offence after it ahs been committed?
No, cannot be convicted, may be liable as an accessory, to be a party must be before or contemporaneous with the acts of the principal.
44
Does a secondary party need to be present at the offence? provide example?
No, eg person who supplies a key or deliberately leaves a door open.
45
Provide three examples of assisting which would be satisfactory for a person to be a secondary party?
Keeping lookout for a person committing a burg
providing a screwdriver to someone interfering with a motor vehicle
telling an associate when a neighbour is away so as to allow them the opportunity to commit a burg.
46
Is it possible to aid an offence by a omission?
Yes is possible, liability will arise where A has a legal duty to act and a right or power of control over B, fails to observe or discharge the duty by exercising control to prevent B committng an offence.
47
Provide an example of abetting
women discovers same sex marriage partner with another person. a fight occurs between the women and other person. while the fight is occurring the partner encourages the other person to kill her same sex marriage partner.
48
Will mere presence satisfiy abets?
Mere presence by itself which does not encourage will not, but deliberate presence intended to signify approval of the acts of the principal will support an inference of encouragement.
49
Will passive acquiescence be abetting where there is a duty to act?
If there is a special relationship between that person and the principal offender or where they owe a legal duty to the victim of general public
50
Provide an example where a charge could be supported for a secondary party where there is a failure to act?
An army sergeant who watches a subordinate assault another person and does nothing to prevent it would be liable as a secondary to the assault. this is as the sgt has power of control over the subordinate and a lawful duty to prevent such incidents.
51
What situation where a special relationship exists and inaction might mount to encouragement?
R v Russell argument between accused and wife. wife then in the presence of accused jumped into a pool with the children and drowned all of them. Accused charged with murder due to failure to act.
52
Provide examples of a person being party to a secondary offence?
A party agrees to an act with violance and the principal carrying out the common aim does an act which causes death, the secondary party is equally as responsible.
R v Betts & Ridley: agree to do a robbery where one would push and snatch bag, and other would wait in getaway car, man was pushed with such force he died, both were convicted of murder.
53
Who decides whether a defendant knew that furthering thir common aim in a particular way would result in a seperate offence?
Question of fact for the jury.
54
What are the two qualifications in relation to probable consequence?
Qual 1
There is no requirement that person A knows or foresees the precise manner in which offence B is to be committed by person B. Person A need only realise that an offence of that type is probable.
Qual 2
There is no requirement that person A's foresight of offence B include any appreciation of the consequences of the physical elements of the offence committed (offence B), but for which no mens rea element is required.
55
A person charged as a party to murder will be guilty of murder when they do either of the following two things:
Intentionally helped or encouraged the murder.
Foresaw murder by a confederate, as a real risk in the situation that arose.
56
A person charged as a party to murder will be guilty of manslaughter when they do either of the following three things:
Knew that at some stage there was a real risk of killing short of murder
foresaw a real risk of murder but the killing occurred in circumstances different from those contemplated
can be expected to have known there was an ever-present real risk of killing.
57
What is an innocent agent and can they be convicted as a secondary? provide an example of a innocent agent?
An innocent agent is someone who is unaware of the significance of their actions.
Not regarded as a participant by law, and cannot be convicted as a secondary party, the offender is the principal and the agent a mechanism.
e.g an offender prepares a poison and puts it in a glass of wine which is served by a waiter.
A innocent person was asked to uplift a tv from a flat by a person who pretended it to be their own.
58
What 5 things can establish the involvement of parties in offences?
A reconstruction of the offence commited, that would indicate more than one person was involved.
the principal offender acknowledging or admitting there was others involved.
a suspect or witness admitting to providing aid or assistance when interviewed.
a witness providing you with evidence of another person involvement based on their observations.
receiving information indicating others were involved.
59
What are the time limits for charging a secondary party?
Same as that for principal
60
Can a person be convicted as a secondary party if the principal has not been charged?
Yes can be whether or not police have located, charged or convicted the principal
61
Can a person be convicted on the uncorroborated evidence of another party?
Yes where two or more parties to offence, each is an accomplice. unwise to rely on this evidence, but possible.
62
In cases where a offence is only capable of being commited by a person of a designated class eg MV driver, and that person is acquitted, can a secondary be convicted?
No other person is able to be convicted as a secondary.
63
Can a person be convicted of a offence as a secondary to something they could not themselves commit?
yes, by reason of sex age or other status, holding them incapable of committing the offence. They can be guilty of such offence such as a disabled person offering advice to committ a robbery they could not physically do.
64
can a secondary be charged as a party to an attempt?
Yes
65
Can an accompice be convicted of a lesser offence?
Yes, eg in gang shooting an accomplice could be convicted of manslaughter and principal of murder.
66
Can a secondary party withdraw?
Yes if done timely and effectively before the commission or attempt.
67
What is the penalty for being a party to an attempt to an offence?
When not expressly provided the penalty of S311(2) is applied.
Is liable to the same punishment as if he attempted to commit that offence
68
When can a person become and accessory?
Can only occur after the offence which must have been completed.
69
What knowledge must be possessed by the accessory at the time of assitance given to complete the offence?
Knowledge that:
an offence has been committed and
the person they are assisting was a party to that offence.
Where this knowledge comes about after the assistance given they are not liable.
70
What are the two situations where a person could be considered wilfully blind?
Where the person deliberately shuts their eyes and fails to inquire this is because they knew what the answer would be
In situations where the means of knowledge are easily at hand and the person realises the likely truth of the matter but refrains from inquiring in order not to know.
71
What are the five intentional acts which an accessory could do?
Receives
comforts
assists
tampers with evidence
actively suppresses evidence
72
What was discussed in R v Mane in relation to accessory after?
accussed charged with accessory after fact to murder, turns out he assisted after the victim was shot but prior to him dieing of his injuries.
Charge withdrawn and changed to perverting course of justice.
73
What was discussed in R v Gibbs in relation to evading justice?
Gibbs was convicted as an accessory after the fact to murder after he assisted an escape and provided supplies for their joint use. Court held that the escapee was helped by gibbs despite the argument they were for his benefit only.
highlights that the acts must have to help the offender.
74
Can a receiver be convicted as an accessory after the fact to theft?
Generally not as they are not assisting them evade justice, but if done with a view to this then it could be possible.
75
IS it possible to be convicted of attempting to be an accessory after the fact?
yes, r v dh the defendant was convicted of attempting to be an accessory after failing to dispose of a weapon used in a fatal robbery.
76
Does the accessory have to directly assist the principal?
No can be indirect assistance, eg Person B assists person A as an accessory, person C assists person B but does not assist A, still an accessory.
77
What are the three intents that must be held by the accessory?
intent to enable the offender to:
escape after arrest
avoid conviction
avoid arrest
78
Is an accessory entitled to insist the principal offence is proved even when the principal has pled guilty?
Yes, must be proved when required despite any guilty plea or conviction against the principal
79
Can the accessory after be convicted if the principal offender is acquitted?
Yes may be convicted
80
Is a false statement provided and filed to the courts an offence of perjury?
Yes CPA 2011 S83, a formal statement filed is treated as evidence on oath given in a judicial proceeding.
81
What is the penalty for perjury?
S109 CA61
1) Except as in 2 everyone is liable to 7yrs max imprisonment
2) if perjury is commited to procure the conviction of a person for any offence for which the max imprisonment is >3Years the punishment may be imprisonment for a term not exceeding 14yrs.
82
What is the penalty for false oaths?
S110
5 Years
83
What is the penalty for False statement / declaration?
S1113 years
84
What exceptions exist for convicting a person of perjury?
S112 CA61
No one shall be convicted of perjury or any offences against s110 or s11 on the evidence of one witness only unless the evidence is corroborated in some material particular by evidence implicating the defendant.
85
What is the penalty for fabricating evidence?
S113
7yrs
with intent to mislead, fabricates evidence by any means other than perjury.
86
Can a person who appears from overseas via avl commit perjury if they are not in nz physically?
yes as it is considered to be taking place at the hearing.
87
Why is the offence of perjury required to be corroborated?
To prevent vexatious accusations of lying on oath, it is thought that making it too easy to prosecute would discourage people from giving evidence.
88
What are examples of conspiring or attempting to mislead justice?
preventing a witness from testifying
wilfully going absent as a witness
threatening or bribing witnesses
concealing the fact an offence has been comitted
intentionally giving police false information to obstruct their inquiry
assisting a wanted person to leave the country
arranging a false alibi
threatening or bribing jury members
89
Can conspiring to defeat the course of justice only apply in criminal proceedings?
no applies to both civil and criminal
90
Is there a defence to a charge of conspiring to defeat the course of justice if the aim of the person was to secure a just result or one they believed is right?
No not a defence.
91
When should you consider a charge under S117?
When unable to establish conspiracy pursuant to S116, the evidence may reveal an attempt to obstruct prevent or pervert the course of just subject to S117
92
When can police commence a prosecution for perjury?
When recommended to by the courts or directed to do so by the commissioner of police. You may however begin inquiries into an allegation without reference to the courts or commissioner.
93
What two ways may a complaint of perjury arise?
An individual may complain that someone has perjured themselves
a judge may state or direct in a court recommendation that the police undertake enquiries into the truth of the evidence given by a witness.
94
What are the two general catagories of recievers
Opportunist taking advantage of a bargain
professionals who receive stolen goods and organize crimes as a business operation
95
What is required to be proved for receiving? (elements)
Act of receiving
any property stolen or
obtained by any other imprisonable offence
knowing that at the time of receiving the property that it had been stolen
or
obtained by any other imprisonable offence
or being reckless as to whether or not the property had been stolen.
96
When is the act of receiving complete
exclusively or jointly with the thief or any other person, possession of or control over the property
or helps in concealing or disposing of the property.
if there is guilty knowledge at that point offence is complete.
97
Can you receive stolen money which the notes have been changed at a bank?
No as needs to be the same property stolen. r v lucinsky
98
Can you rely on the conviction of the theft of property to prove for a receiving case that the property was stolen?
yes
99
how does a person void title?
bring a claim seeking an order in the disputes tribunal.
communicate with deceiver
take all reasonable steps to notify deceiver
advise police of circumstances
100
What things demonstrate circumstantially that a person has guilty knowledge to property stolen (6)
POSSESSION OF RECENTLY STOLEN PROPERTY
NATURE OF THE PROPERTY IE TYPE VALUE QUALITY
PURCHASE AT GROSS UNDERVALUE
SECRECY IN RECEIVING THE PROPERTY
RECEIPT OF GOODS AT A UNUSUAL PLACE
RECEIPT OF GOODS AT AN UNUSUAL TIME.
RECEIPT OF GOOD IN UNUSUAL WAY
CONCEALMENT OF PROPERTY TO AVOID DISCOVERY
REMOVAL OF IDENTIFYING MARKS OR FEATURES
STEPS TAKEN TO DISGUISE PROPERTY
LACK OF ORIGINAL PACKAGING
TYPES OF PERSON GOODS RECEIVED FROM
MODE OF PAYMENT
ABSENCE OF RECEIPT WHERE RECEIPT WOULD BE ISSUED
FALSE STATEMETNS AS TO SOURCE
FALSE STATEMENTS AS TO DATE OF ACQUISITION
NATURE OF EXPLANATION GIVEN
FALSE DENIAL OF KNOWLEDGE
101
Could a thief give evidence against a receiver?
yes it is possible, only if tried separately
102
Explain the concept of police acting as an agent when recovering property?
police deemed to have implied authority when there is a complaint by the owner to recover property.
it is the subject of debate:
inspection and recovery of a stolen car by police is deemed to be restoration of that car to the owner.
once property has been identififed by police is is then legally impossible to commit the offecne of receiving or atytemptiong to receive
police surveillance and observations of stolen property such as a vehicle in transit without police taking possession might not constitute a restoration of property, rendering vehicle immobile may.
recommend if you want to catch reciever to observe without intervention
Where police act as agent and take control there can be no subsequent receiving as property is no longer stolen.
103
How can possession be established in a charge of receiving?
By showing property is:
in the immediate physical custody of the receiver
at a location over which the receiver has control.
Awareness that the item is where it is
awareness that the item has been stolen
actual or potential control over the item
an intention to exercise control over the item
r cox
104
What are the things that must be assessed before any property is restrained
value of the asset
equity in the asset
any third party interest in the asset
cost of the action in respect of that asset
105
What must occur before criminal procceds can be commenced?
restraining order is first step, application made to high court to show reasonable grounds for belief that the property is tainted that is has been acquired from significant criminal activity.
must be specified property.
106
What must the court be satisfied of to restrain?
the respondent has unlawfully benefited from significant criminaly activity and that the respondent has an interest in the property to be restrained.
107
What should you discuss in a money laundering interview? (8)
suspects legit income
suspects non legit income
expenditure
assets
liabilities
acquisition
acquisition of financial records banks companies, loan sharks trusts.
clarification of documentary evidence.
108
What is meant by the term proceeds as it relates to s243 money laundering
Proceeds : In relation to an offence, means any property that is derived or realised, directly or indirectly by any person from the commission of the offence
109
what is the definition of an offence in respect of money laundering
offence: means an offence that is punishable under NZ law, any act, wherever committed that would be an offence in NZ if committed in NZ.
110
what is the purpose of the assessment process whjen preparing an application for a restraining order relating to an instrument of crime
conducted to determine
- the value of the asset
equity in the asset
any third party interest in the asset
cost of the action in respect of that asset
111
what is the definition of tainted property in relation to the CPRA 09
means any property that has, wholly or in part been
acquired as a result of significant criminal activity
directly or indirectly derived from significant criminal activity
includes any property that has been acquired as a result of or directly or indirectly derived from more than 1 activity if at least 1 of those activities is a significant criminal activity.
112
what are the three phases of the money laundering cycle
placement
layering
integration
113
What is the doctorine of recent possession?
it is the presumption trhat the possession of property recently stolen is in the absence of a satisfactory explanation evidence to justify a belief and find that the possessor is either the thief or receiver, or has committed an offence associated with the property.
114
What was held in R v Lucinsky
the property received must be the property stolen, and not some other item for which the illegally obtained property had been exchanged or the proceeds.
115
Where may a prosecution for perjury begin?
When it is recommended by the courts or directed to by the commissioner of police. you may however begin inquiries into a allegation without either of the above
116
what intent must you be able to prove in order to establish a charge of perjury
the intent to be proved is the offenders intention to mislead the tribunal holding the proceeding
117
what are the two main points to be covered when interviewing a suspect in respect of perjury
whether the suspect knew their assertion was false
whether they intended to mislead the tribunal governing proceedings
118
list 6 examples of conspiring or attempting to attempt to obstruct prevent, pervert or defeat the course of justice
preventing a witness from testifying
wilfully going absent as a witness
the taking or detainment of witnesses
concealment of the fact a crime was committed
intentionally giving police false info to obstruct inquiries
supply false info to probations
assisting a wanted person to leave the country
arranging a false alibi
threatening or bribing jury members
119
What intent must be present in the mind of a person at the time of providing assistance to a party to an offence, so as to make that person liable as an accessory after the fact.
Intent at the time of assisting must be
- to enable the offender to escape after arrest
- to enable the offender to avoid arrest or conviction
120
briefly define each of the following terms referred to in 71(1) ca61
receives
comforts
assists
tampers with
actively suppresses
receives - means to harbour an offender or offer shelter
comforts - provide shelter accomodation food, clothing or supplies
assists - means to provide transport, act as a look out, help with selling stolen property, deliberately misleading authorities, providing advice, information and services to the offender
tampers with - means to alter evidence against the offender
actively suppresses - encompasses acts of concealing or destroying evidence against a offender.
121
What is the principle difference to a party to the offence and an accessory after the fact
parties are involved before or during the commission of an offence whereas accessories are involved after the offence has been comitted
122
under what circumstance can you charge someone with being an accessory when they receive stolen goods?
when the receiving of the goods was done with a view to help the offender and enable them to evade justice. Need evidence to support this. accepted that people generally buy stolen goods for financial gain.
123
What situations does a person become liable as a party under s 66(1) ca 61
Where they:
actually commit the offence
do or omit an act for the purpose of aiding any person to commit an offence
abet any person in committing an offence
incite counsel or procure a person to commit an offence
124
what is the distinction between aiding and abetting and inciting counselling and procuring?
aiding and abetting require the aider or abettor to assist in the commission of the offence, either physically or by giving advice or information
inciting, counselling or procuring describe actions taken before the offence is carried out
125
how might the involvement of parties be established?
a reconstruction of the offence indicating that more that one person was involved
principal acknowledging others were involved
a suspect or witnessing admitting to providing aid or assistance
witness providing evidence of anothers involvement
receiving information advising others were involved
126
what was held in the case of r v russell?
charged with murder of his wife and two sons. Had an argument with wife and wife jumped into pool in his presence with his two children.
He stood by and did not render aid. Held as party as he was morally bound to take steps to save his children, but his lack of action made him an aider and abettor
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There are three groups of offences that do not allow prosecution in respect of an attempt? what are they?
the criminality depends on recklessness eg manslaughter
an attempt to commit an offence is included within the definition of that offence
the crime is such that the act must be completed in order for the offence to exist eg demand with menace
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what elements must be proved to successfully prosecute someone for an attempt
prove the identity of the suspect and that they:
- intended to commit an offence and
- did or omitted to do something to achieve that end.
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what was held in r v donnelly in relation to attempts
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 has previously been stolen or dishonestly obtained.
This is as the goods are no longer stolen , therefore impossible to receive.
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once a offender has committed acts that are sufficiently proximate to the full offence, there are three situations that do not amount to a defense to the charge? what are those three situations
-Were prevented by some outside agent from doing something that was necessary to complete the offence eg interrupted by police
- failed to complete the offence due to ineptitude or insufficient means eg not enough tnt to blow a safe
- were prevented from committing the offence because an intervening event made it impossible eg removal of property before intended theft
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explain the liability of a person who agrees to commit an offence with another person but then withdraws from the agreement before the completion of the offence
a person withdrawing from the agreement is still guilty of the conspiracy as are the others who become party, however a person can effectively withdraw before an actual agreement is made
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what was held in the case of r v mulcahy
a conspiracy consists not merely in the intention of two or more but the agreement of two to do an unlawful act.
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when is the offence of conspiracy complete
when the agreement is made with the necessary intent, no further progression required
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what 5 points should be covered when interviewing conspiracy suspects
existence of an agreement to commit an offence
existence of an agreement to omit or do something that would be an offence
intent of those involved in the agreement
identity of people involved
whether anything was written said or done to further the common purpose.
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