Short Answers Flashcards
Define Abets, Aids, Incites and Counsels?
Abets means to instigate or encourage, urge another person to commit an offence.
To Aid means to assist in commission of the offence either physically or by giving advice and information.
To Incite means to rouse, stir up, stimulate or animate or spur or urge on a person to commit an offence.
Counsels means to intentionally instigate the offence by advising a person on how best to commit an offence or planning the commission of an offence for another person
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
Admissibility of evidence
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.
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.
When is receiving complete? S246(3) CA61
The act of receiving any property stolen or obtained by any other imprisonable offence is complete as soon as the offender has, either 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
What must prosecution prove against receiver having control over stolen property?
The prosecution must prove that the receiver arranged for the property to be delivered there, or alternatively that upon discovering the property he or she intentionally exercised control over it. Intent to posses must also be satisfied.
Profit Forfeiture Order
Section 55, Criminal Proceeds (Recovery) Act 2009
(1) The High Court must make a profit forfeiture order if it is satisfied on the balance of probabilities that—
(a) The respondent has unlawfully benefited from significant criminal activity within the relevant period of criminal activity; and
(b) the respondent has interests in property.
What must occur before criminal proceeds action taken?
A restraining order is the first step in the asset seizure process. In the case of tainted property and benefits from crime an application made to the High Court must show reasonable grounds for belief that the property is tainted – that it has been acquired, or directly or indirectly derived, from “significant criminal activity”.
Acts must be sufficiently proximate to full offence?
Generally, to prove an attempt the accused must have done or omitted to do some act(s) that is/are sufficiently proximate (close) to the full offence. Effectively, the accused must have started to commit the full offence and have gone beyond the phase of mere preparation – this is the “all but” rule.
Once acts are sufficiently proximate, have no defence that?
- 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.
Six examples of circumstantial evidence of guilty knowledge?
- possession of recently stolen property
- nature of the property, ie type, value, quantity
- purchase at a gross undervalue
- secrecy in receiving the property
- receipt of goods at an unusual time, place or way
- concealment of property to avoid discovery
- removal of identifying marks or features
- steps taken to disguise property, ie removal / altering of serial numbers, painting
- lack of original packaging
- type of person goods received from
- mode of payment
- absence of receipt where receipt would usually be issued
- false statements as to the source of the goods
- false statements as to the date of acquisition
- nature of explanation given, eg false or inconsistent or no reasonable explanation
- false denial of knowledge, existence etc
Secondary Offenders
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 s66(1)(b), (c) or (d).
To be a party to an offence, the acts of the secondary offender must be earlier in time or contemporaneous with the acts of the principal offender(s). Whether the acts are contemporaneous is dependant on the circumstances of each case.
Actual proof of assistance is required - Parties to offences
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.
Evidence of perjury, false oath, or false statement
Section 112, Crimes Act 1961
No one shall be convicted of perjury, or of any offence against section 110 or section 111 of this Act, on the evidence of one witness only, unless the evidence of that witness is corroborated in some material particular by evidence implicating the defendant.
Ingredients of perjury
The ingredients of the offence of perjury are:
- a witness making any
- assertion as to any matter of fact, opinion, belief, or knowledge
- in any judicial proceeding
- forming part of that witness’s evidence on oath
- known by that witness to be false, and
- intended to mislead the tribunal.
