Progress Tests Flashcards
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 intended offence.
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.
What was held in the case of R v Mulcahy as it relates to conspiracy?
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.
When is the offence of conspiracy complete?
The offence is complete on the agreement being made, accompanied by the required intent. It does not require any further progression toward its completion by those involved in the agreement.
What five points should be covered when interviewing conspiracy suspects?
Interview the suspects concerned to establish:
• the existence of an agreement to commit an offence, or
• the existence of an agreement to omit or do something that would amount to an offence, and
• 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.
What are three groups of offences that do not allow for a prosecution in respect of an attempt?
You are not able to charge someone with an attempt to commit a crime where:
• The criminality depends on recklessness or negligence; ie manslaughter.
• An attempt to commit an offence is included within the definition of that offence, eg assault.
• The crime is such that the act must be completed in order for the offence to exist at all, eg person cannot attempt to demand money with menaces.
What elements must be proved to successfully prosecute someone for attempting to commit an offence?
In each case of attempt, you must 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.
What was held in the case or R v Donnelly in relation to attempts?
In Donnelly it was held that: 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.
The court decided that despite Donnelly’s mens rea and actus reus, it was legally impossible for him to receive stolen property as those goods were no longer deemed to be stolen. His conviction was set aside. An attempt to receive such stolen goods is therefore possible in fact, but impossible in law.
Once an offender has committed acts that are sufficiently proximate to the full offence, there are three situations that do not amount to a defence to the charge. What are those three situations?
The three ‘defences’ that an offender has no recourse to once they have committed acts that are sufficiently proximate to the full offence are 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 crime because an intervening event made it physically impossible, eg removal of property before intended theft.
In what situations does a person become liable as a party to an offence under s66(1) of the Crimes Act 1961?
A person is liable as a party to an offence under s66(1) 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 any person to commit an offence.
What is the distinction between ‘aiding and abetting’ and ‘inciting, counselling and procuring’?
In general terms, ‘aiding and abetting’ requires the aider or abettor to be present at the scene before or at the time of the offence being committed, whereas ‘inciting, counselling and procuring’ describe the actions taken before the offence is carried out.
How might the involvement of parties be established?
The involvement of parties may be established by:
• A reconstruction of the offence committed, this indicating that more than one person was involved, or that the principal offender was in receipt of advice or assistance.
• The principal offender acknowledging or admitting that others were involved in the offence.
• A suspect or witness admitting to providing aid or assistance when interviewed.
• A witness providing you with evidence of another person’s involvement based on their observations.
• Receiving information indicating that others were involved in the offence.
What was held in the case of R v Russell?
The defendant was charged with the murder of his wife and two sons. Following an argument between he and his wife, the wife, in the presence of the defendant, allegedly jumped into a swimming pool with both children, drowning them all. The defendant failed to render assistance to his wife or their children. The court held that the defendant was morally bound to take active steps to save his children, but by his deliberate abstention from so doing, and by giving the encouragement and authority of his presence and approval to his wife’s act he became an aider and abettor and thus a secondary offender:
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?
For someone to be held liable as an accessory after the fact, the intent required at the time of providing the assistance is that such assistance will:
• enable the offender to escape after arrest, or
• enable that offender to avoid arrest or conviction.
Briefly define the meaning of each of the following terms referred to in s71(1) of the Crimes Act 1961 as they relate to accessories after the fact: − receives − comforts − assists − tampers with − actively suppresses
The meaning of each of the following terms referred to in s71(1) of the Crimes Act 1961 as they relate to accessories after the fact are:
• receives: Common law meaning and refers to harbouring an offender or offering them shelter, eg hiding an escapee in a basement.
• comforts: Common law meaning and refers to providing shelter, accommodation, food, clothing or other supplies to an offender.
• assists: Common law meaning and refers to providing transport, acting as a look out, identifying purchaser for stolen property as a receiver, deliberately providing authorities with false information as to an offender’s whereabouts, giving advice, information, material or services to the offender.
• tampers with: Means to alter the evidence against the offender, eg modifying an offender’s telephone records to conceal communications that might implicate them.
• actively suppresses: This encompasses acts of concealing or destroying evidence against an offender, eg washing bloodied clothing repeatedly to remove evidence or destroying it.
What is the principal difference between a party to an offence and an accessory after the fact?
The principal difference between a party to an offence and an accessory after the fact is that parties are involved in the offence before or during the commission of the offence, whereas accessories are involved after the principal offence has been committed.
