SA Flashcards
Withdrawing From an Agreement – Conspiracy
A person withdrawing from the agreement is still guilty of conspiracy as are those who become party to the agreement after it has been made. However a person can effectively withdraw before the actual agreement is made.
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.
Anything a conspirator or party to a joint charge says or does to further the common purpose is admissible against the others involved, this being an exception to the hearsay rule and as such conspirators should be jointly charged.
However, this does not include explanations made after the common purpose is carried out. Then the explanation is evidence only against the person making it.
Suspects – Investigative Procedure – Conspiracy
Interview 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, and
• The identity of all people concerned where possible, and
• Whether anything was written, said or done to further the common purpose.
Charging – Conspiracy
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, i.e. the jury may assume the accused’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 the trial
• Where the charge of conspiracy is not founded on evidence or is an abuse of process, it may be quashed
• Severance may be order meaning that each indictment or information may be heard at separate trials
INTENT
CHECK MODULE
What must be proved (Three elements)– Attempts to commit an offence
In each case of attempt you must prove the identity of the suspect and their;
• Intent (Mens Rea) to commit the offence;
• Act – (Actus Reus) that they did or omitted to do something to achieve that end
• Proximity – that their act or omission was sufficiently close
Case Law – R v Harpur
The court may have regard to the conduct viewed up to the point when the conduct in question stops. The defendant’s conduct may be considered in its entirety. Considering how much remains to be done is always relevant though not determinative.
Example of legally impossible acts – Attempts to commit an offence
Case Law – R v Donnelly (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.
(Legally impossible to receive stolen property already recovered by police or owner)
Act completed sufficiently proximate to intended offence – Attempts to commit an offence
Once the acts are sufficiently proximate, the accused has no defence that they;
• Were prevented by some outside agent from doing something that was necessary to complete the offence; e.g. interruption by police
• Failed to complete the full offence due to ineptitude, inefficiency or insufficient means, e.g. insufficient explosive to blow apart a safe
• Were prevented from committing the crime because an intervening event made it physically impossible, e.g. removal of property before intended theft
Case Law – R v Ring (Physically Impossible)
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 demostrated in his actions. The remaining elements were also satisfied.
Case Law – Higgins v Police (Physically Impossible)
Where plants being cultivated as cannabis are in fact not cannabis it is physically not legally impossible to cultivate such prohibited plants. Accordingly it is possible to commit the offence of attempting to cultivate cannabis.
Case Law – Police v Jay (Physically Impossible)
A man bought hedge clippings believing they were cannabis.
Case Law – R v Renata (Multiple offenders - Parties)
The courts held that where the principal offender cannot be identified, it is sufficient to prove that each of the individual accused must have been either the principal or a party in one of the ways contemplated by section 66(1).
Secondary offenders (Parties)
Those who assist the principal offender(s) either before or during the commission of an offence are considered secondary offenders and thus their liability generally lies within the scope of section 66(1) (b) (c) or (d).
To be a party to an offence the acts of the secondary offender must be earlier in the time or contemporaneous with the acts of the principal offender(s). Whether the acts are contemporaneous is dependent on the circumstances of each case.
Where the act was part of the original planning, e.g. providing a means of escape, then the person who committed this act would be deemed a principal party.
However, a person cannot be convicted as a party to an offence that is already complete. In such a case they would be liable as an accessory.
Actual Proof of Assistance examples - Parties
Larkins v Police
Examples of assistance;
• Keeping lookout for someone committing a burglary
• Providing a screwdriver to someone interfering with a motor vehicle
• Telling an associate when a neighbour is away from their home so as to allow the opportunity to commit a burglary
Case Law – Larkins v Police
While it is unnecessary that the principle should be aware that he or she is being assisted, there must be proof of actual assistance.
Innocent Agents – Parties
Innocent agents are sometimes used by offenders. An innocent agent is someone who is unaware of the significance of their actions. Where an offender uses an innocent agent to bring about the actus reus, the innocent agent is not regarded as a participant to the offence, they are simply the mechanism. The law treats the offender as the principal in such cases. An innocent agent cannot be convicted as a secondary party.
Case Law – R v Pene
A party must intentionally help or encourage. It is not sufficient if they were reckless as to whether the principal was assisted or encouraged.
Case Law – R v Betts and Ridley
An offence where no violence is contemplated and the principal offender in carrying out the common aim uses violence, a secondary party taking no physical part in it would not be liable for the violence used.
Case Law – R v Russell (Special Relationship)
The court held that the accused 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 needs to be proven – Accessory after the fact
- That the person who is received, comforted, assisted by the accessory is a party to an offence that has been committed
- That at the time of the receiving, comforting, assisting that person, the accessory knows that the person was a party to the offence
- That the accessory received, comforted or assisted that person or tampered with or actively supressed any evidence against that person
- That, at the time of the receiving, comforting or assisting etc. the accessory’s purpose was to enable that person to escape after arrest or avoid arrest or conviction
Case Law – R v Gibbs
The acts done by the accessory must have helped the other person in some way to evade justice.
Case Law – R v Levy (actively suppress)
It was held that levy had done a deliberate act in relation to the evidence against the offender for the purpose of assisting that offender to evade justice.
Knowledge must exist at the time assistance given – Accessory After the Fact
At the time of the assistance being given, an accessory must possess the knowledge that;
• An offence has been committed, and
• The person they are assisting was a party to that offence
Where this knowledge comes about following the rendering of assistance they are not liable as an accessory.
