Tests for all offences covered

Question 1

Attempts - s72

Answer 1

AR
- An act immediate / proximate to full offence

MR
- Intent
- If additional requirement, whatever is in statute

Question 2

Theft by taking - s 219(1)(a)

Answer 2

AR
- Taking property
- Owned by another

MR
- Dishonestly
- Without claim of right
- Intent to perminantly deprive the owner

Question 3

Theft by conversion - s 219(1)(b)

Answer 3

AR
- Using/dealing with property
- Owned by another

MR
- Dishonestly
- Without claim of right
- Intent to perminantly deprive the owner

Question 4

Conspiracy - s 310

Answer 4

AR
- Agreement to carry a criminal act into effect

MR
- Intention to carry a criminal act into effect

Question 5

Aiding - s 66(1)(b)

Answer 5

AR
- Aids in commission of offence

MR
- Knowledge of principal party’s intention
- Intention to aid principal party in commission of offence

Question 6

Abetting, inciting, counselling - s 66(1)(c) - (d)

Answer 6

MR
- Knowledge of principal party’s intention
- Intention to abet/incite/procure a principal party in commission of offence

Question 7

Procuring - s 66(1)(d)

Answer 7

MR
- Knowledge of principal party’s intention
- Intention to procure a principal party to commit an offence

Question 8

Alternative secondary liability - s 66(2)

Answer 8

AR
- Commission of offence in the prosecution of unlawful purpose

MR
- Common intention to prosecute an unlawful purpose

Question 9

Accessory after the fact - s 71

Answer 9

AR
- Assists party to an offence after the commission of the offence

MR
- Knowledge that the person was party to an offence

Question 10

Strict liability

Answer 10

STEP 1
Clear legislative intent as to class?

STEP 2
Overriding judicial history of class?
- If no, presume class 1

STEP 3
Can the presumption be displaced?
- If PWO, the presumption will usually be displaced

STEP 4 (If displaced)
Is the offence in Class #2 or Class #3?
- Usually 2.
- If either are reasonable, adopt the more favourable to accused aka 2 (Sweet v Parsley)
- PWOs are prima facie 2 (MacKenzie)
- 3 is rare and exceptional (MacKenzie; Millar; Tell)
- If penalty is “severe”, it should be 2

STEP 5 (if class 2)
What are the available defences?
- Must prove “absence of fault” on a balance of probabilities?