MCQ/Short answer Flashcards
What is an omission? give an example
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)
What did greenfield suggest the essence of conspiracy is?
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
Can a person withdraw from a conspiracy agreement?
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
What is an example of a person withdrawing from a conspiracy?
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.
When is the offence of conspiracy complete?
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.
Explain the mens rea and actus rea for conspiracy?
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)
Is passive presence or knowledge of an intention sufficient?>
no, mere knowledge or passive presence does not amount to being a party
What are the two specific types of intent
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’
How is intent proved
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
How do you prove the fact that two or more people conspired?
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.
Discuss Jurisdiction in relation to conspiracy
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.
What was found in r v sanders in relation to jurisdiction?
Sufficient if one act or omission forming part of the offence or ‘any event necessary to the completion of any offence occurs’ in NZ
Conspiracy entered into overseas
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
Is there a defence to conspiracy?
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.
Conspiracy across borders
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.
Is evidence gained against one party of the conspiracy admissible against the other party?
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
When investigating conspiracy what should be covered off in witness statements?
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
When investigating conspiracy what should be covered off with the suspects and established?
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
When should you not file a charge of conspiracy?
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
When could you file a conspiracy charge in conjunction with the substantive offence (R v Humphries)
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.
Who approves a conspiracy charge to be filed?
your supervisor needs to approve it
What three conditions must be satisfied for an attempt conviction?
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
What intent must be proved in a attempt?
That the defendant intended to commit the substantive offence
What was discussed in r v murphy in relation to attempted murder?
held it was necessary for the crown to establish intent to kill rather than the other implied intents,
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
Who determines intent in a trial?
Question for the jury whether the intent exists, not a question of fact
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.
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?
Who determines proximity in a trial?
Question of law determined by judge
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
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.
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
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.
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.
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.
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
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
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.
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
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
What makes a person a principal offender?
Satifies the actus reus and mens rea requirement of the offence.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
