study ass Flashcards
What was held in section 67 CA61 - conspiracy
a person is capable of conspiring with his or her spouse, or civil union partner or his/her spouse/civil union partner and any other person
what are the mens rea necessary for conspiracy
An intention of those involved to agree
An intention that the relevant course of conduct should be pursued by those party to the agreement
The offenders mental intent must be to commit the full offence - no intent /no crime
What is the mental intent necessary for conspiracy
the offenders mental intent must be to commit the full offence - When no intent exists/no crime committed.
If a person withdraws from an agreement are they still liable.
a person withdrawing from an agreement is still guilty of conspiracy as are those who become a party to the agreement after it was made.
A person can withdraw only if it was before the agreement was made.
What was found in SANDERS in relation to conspiracy ending
Conspiracy does not end at the making of the agreement, the conspiratorial agreement continues in operation and in existence until it is ended by the completion of it performance or abandonment or any other matter which agreements are discharged.
Circumstantial evidence for proving intent can include
the offenders words or actions before during or after the event,
the surrounding circumstances, or
the nature of the act itself.
Matt released from prison, discussed burglary with John and Jeff, he does not agree. Jeff and john get caught waiting for the shop to close. what can Matt be charged with
matt - no charge he agrees to nothing, cant be charged to conspiracy
what matters should be considered when interviewing conspiracy suspects
the existence of an agreement to commit an offence
the existence of an agreement to do or omit something that would amount to an offence
the identity of those involved ion the agreement
the intention of those involved in the agreement
was any thing written/said or done to further the common purpose
what matters should be considered when interviewing a conspiracy witness
the identity of those involved at the time of the agreement
with who was the agreement made
what offence was planned
where any acts carried out to further the common purpose
When is the evidence from the defendant(s) admissible for conspiracy/
the intention of those involved to carry out the offence is an essential element for conspiracy. The must be a common aim to commit an offence an an intention that the aim is to be effected.
ANYTHING a conspirator or party to a joint charge says or dose to further the common purpose is admissible against the others involved, this being an exception to the hearsay rule.
This does not include explanation made after the common purpose is carried out
what reasons are laying a conspiracy charge undesirable?
The evidence admissible only on conspiracy charge may have a prejudicial effect in relation to the other charges
The judge may disallow the evidence as being to prejudicial - jury may assume the defs guilty knowledge
The addition of a conspiracy charge complicate/prolong the trial
Where the charge is not founded on evidence or is an abuse of process, it may be quashed
Severance may be ordered - each charge may be herd at separate hearings
Kiran and Rohan are visiting Egypt, whilst playing poker Kira and Rohan discuss there mutual hatred for Josuke who lives in NZ. Kira and Roahn agree on a plan to beat Josuke to death. When they get back to NZ Kira gets cold feet and decided not to kill Josuke. Are they liable.
No, as the conspiracy was made overseas, a person is only open to the jurisdiction of the NZ courts if they are later physically in NZ and act in continuance of the conspiracy.
what is meant by being sufficiently proximate in relation to an attempts.
means they must have done or omitted in doing an act/s that are sufficiently proximate to the full offence.
They must have started to commit the full offence and gone beyond mere preparation
Once an offender has committed act that are sufficiently proximate to the full offence, there are 3 situations that do not amount to a defence to the charge, what are they?
- the were prevent by an OUTSIDE AGENT from doing something necessary to complete the offence, eg police came along
- they failed to complete the full offence because of INEPTITUDE or INSUFFICIENT MEANS - eg didn’t bring the right tools
- they were prevented from committing the full offence because of an INTERVIENING EVENT, eg the property had already been remove before the intended theft.
When is it factually or physically impossible?
If the act in question amounts to an offence but the suspect is unable to commit the offence because of an interruption, ineptitude or any other circumstance beyond there control.
what are the 3 elements of an attempt?
Menas rea - mental intent to commit the offence
Actus Reus - what they did or omitted to do to achieve it
Proximity - there act/omission was sufficiently close
when are you unable to charge with an attempt commit an offence
If the criminality depends on recklessness or negligence - murder
If an attempt to commit an offence in included within the definition of the offence - assault
If the offence is one where the act has to be complete for the offence to exist at all.- demands with menace
Matt gets angry with his mechanic and takes a swing but misses. what can Matt be charged with
Assault
several acts together constitute and attempt
several acts together may constitute and attempt, the actions need not be considered in isolation.
Sufficient evidence of intent was available from the events leading up to that point
What is the test for proximity
Has the offender done anything more than get themselves into a position where they could embark on an actual attempt.
Has the offender taken steps towards the actual offence itself, commenced execution.
A security gurad decides to burgle his own workplace, he drive to work to check the alarm so he can burgle it later, is he guilty of an attempt.
No, its only mere preparation at this stage.
Kars is a serial rapist. his MO is to talk to women online and meet them in person where he subsequently rapes them. Suzzie a UC messages Kars and arranges a meet up at a cafe. Kars drives to the location and he is arrested. Is Kars liable
He could be charge with an attempted sexual violation as he travels to the location, based on MO.
Although we would have to prove his intent, of that it was intention to rape her when he got there.
What are 3 cases of examples of an act being physically impossible
Ring - hand in empty pocket
Higgins - plants being cultivated as cannabis, but are in fact not cannabis plants
Jay - man brought grass clipping believing it was cannabis
Police Sgt watching a Constable assault prisoner, what is he liable for
liable as a secondary party to the assault, as he had a legal duty to stop it.
Actual proof of assistance is required, what are some examples of this
Keeping a look out in a burglary
Providing a screw driver to someone interfering with a MV
Telling someone when a neighbour is away so they can burgel the house
Define secondary offenders
Those who assist the principal offender either before or during the commission of an offence are considered a 2nd offender and their liability generally lies within the scope of S66
To be a party to, the act of the 2nd offender must be earlier or at the same time as the principal offenders acts.
Where the act was apart of the original planning, eg. proving a means of escape
however a person can not be convicted as a party for an offence that is already complete - in this case they would be an accessory.
what constitutes a Party?
everyone is a party to and guilty of an offence who
a. actually commits the offence, or
b. does or omits an act for the purpose of aiding any person to commit an offence
c. abets any persons in the commission of the offence
d. incites, counsels or procures any person to commit the offence
what is s66(2)
where 2 or more persons form a common intention to prosecute any unlawful purpose and to assist each other therin, each of them is a party to every offence committed by any one of them in the prosecution of the common purpose, if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose.
What is an innocent agent
Someone who is unaware of the significance of there actions.
An innocent agent can not be convicted as a 2ndry party.
Where in innocent agent is used by an offender to bring about the actus reus, the act completed is considered to be the act of the offender, the agent is not considered a participant, the offender is the principal offender
What was held in R v Larkins - proof of assistance
while it is unnecessary that the principal should be aware that he/she is being assisted, there must be proof of an actual assistance
What are the main points in R v Renata
Each offender satisfy the ingredients of the offence committed
Each offender separately satisfies the actus reus.
3 offender beat the victim to death, the prosecution was unable to establish which blow was the fatal one or which of the 3 did it.
The court held that where the principal offender can not be identified, it is sufficient to prove each individual accused must have be either the principal or party in one to the ways contemplated in s66(1)
Define Aids
to assist in the commission of the offence, either physically or by giving advice/information
Define Abets
to instigate or encourage, to urge another person to commit the offence
Define Procures
to set out to see that something happens taking steps to ensure it does. They must deliberately cause the person to commit the offence. May be carried out by fraud, persuasion, words or conduct, such as offer a payment.
