1. Evolution Of The Offence

Question 1

What is Mens Rea?

Answer 1

The guilty mind

Question 2

How does Mens Rea typically present?

Answer 2

As “intention” or “recklessness.”

Statutes typically set out the required culpability level

Question 3

What are the two types of Intention?

Answer 3

1. Deliberate Act - done deliberately, not accidental, AND
2. Intent to produce a certain result - “aim, purpose, result” (Simester & Brookbanks)

Question 4

What are the two types of recklessness?

Answer 4

1. Subjective recklessness - foresight of dangerous consequence that could happen with intent to continue regardless of risk
2. Objective recklessness - someone commits an act where an obvious risk a prohibited event will result. The accused has either given no thought to the possibility of risk, or has recognised some level of risk and continued.

Question 5

Case law:
Cameron v R

Answer 5

Recklessness is established if:
a) the defendant has recognised that there was a real possibility that:

(i) his/her actions would bring about the proscribed result; and/or

(ii) the proscribed circumstances existed; and

(b) having regard to that risk those actions were unreasonable.

Question 6

Case law:
R v Tipple

Answer 6

Recklessness requires the offender know of, or have conscious appreciation of the relevant risk and a “deliberate decision to run the risk.”

Question 7

What is Actus Reus?

Answer 7

The act or ommission.

Must be voluntary.

Question 8

What is the Causal Link/Chain of Causation?

Answer 8

Links the Actus Reus to the consequence.

I.e. the outcome/consequence would not have happened “but for” the actions of the accused.

“But for” test.

Question 9

What effect does an intervening act have on the causal link?

Answer 9

None. Generally speaking, after the act has been completed, any intervention will not break the causal link.

Question 10

Do a victim’s health problems that cause a more severe consequence lessen the culpability of the accused?

Answer 10

No. Defendants must “take their victims as they come.”

I.e. will be culpable for any injuries incurred to the Victim regardless of pre-existing conditions.

Question 11

What is the “Golden thread” of criminal law?

Answer 11

The defendant is presumed innocent until proven guilty.

s25(c) New Zealand Bill of Rights Act 1990.

Question 12

What is the standard of proof on prosecution in criminal cases?

Answer 12

Prosecution needs to prove “beyond reasonable doubt” that the defendant committed the actus reus and had the requisite mens rea.

Also need to disprove beyond reasonable doubt any defences raised.

Question 13

Traditionally, what are the two types of defences that can be raised?

Answer 13

1. Statutory defences (specifically set out in the Crimes Act 1961)
2. Common law defences (uncodified, although preserved under s20(1) of the Crimes Act 1961.

Question 14

What are the five statutory defences to a crime?

Answer 14

1. Infancy (s21)
2. Defence of self or another (s48)
3. Defence of property (s48)
4. Insanity (s23)
5. Compulsion (s24)

*All sections are from the Crimes Act 1961

Question 15

What are the six Common Law defences?

Answer 15

1. Impossibility - complying with the law is impossible.
2. Necessity - had to choose between two evils and the lesser involved breaking the law.
3. Consent - although can’t consent to assault where actual bodily harm was intended or caused. Also does not cover murder (s63 Crimes Act 1961)
4. Intoxication - not a defence exactly, although may make it harder to prove Mens Rea.
5. Mistake - if ingredients of a crime require intention/knowledge/subjective recklessness, the accused can be acquitted if the state of mind was absent at the time of conduct.
6. Sane Automatism - Action without conscious volition which is not caused by a disease of the mind (i.e. sleep walking)

Question 16

What is Conspiracy?

Answer 16

An agreement between two or more people to commit an offence.

s310 Crimes Act 1961

Question 17

What is the punishment for Conspiracy?

Answer 17

Depends on the offence:
<7 years - same punishment as the crime that would have been carried out if they were successful.

> 7 years - up to a 7 year maximum.

Question 18

What is the Mens Rea associated with Conspiracy?

Answer 18

1. Intent of those involved to agree.
2. Intent that the relevant course of conduct should be pursued.

Question 19

What is the Actus Reus of Conspiracy?

Answer 19

The agreement.

Question 20

When can you withdraw from Conspiracy?

Answer 20

You can withdraw up until the agreement is made. Once the agreement is made the offence has been committed.

Question 21

What is the jurisdiction of NZ Courts related to international Conspiracies?

Answer 21

Any offence planned to be committed in NZ if at least one act/ommission occurs in NZ.

When conspiring to commit an offence from within NZ, intending to carry it out in a different country - although must also be an offence in that different country.

Question 22

Case law:
Mulcahy v R

Answer 22

Conspiracy is defined as the agreement between two or more to do an unlawful act, or to do a lawful act by unlawful means.

Question 23

Case law:
R v Sanders (1)

Answer 23

Conspiracy does not end upon agreement, it continues until carried out, abandoned, or discharged by other means.

Question 24

Case law:
R v Sanders (2)

Answer 24

Regarding NZ Court Jurisdiction

If even one act/ommission contributing to the offence of conspiracy occurs within NZ, then it is sufficient to charge the accused.

Question 25

What is the definition of Attempts?

Answer 25

With intent to commit an offence, does or omits to do any act for the purpose of achieving their object. s72 Crimes Act 1961

Question 26

What must you prove to prosecute for Attempts? (3)

Answer 26

1. Intent - to commit an offence. 2. Act - that they did/omitted something to achieve that end. 3. Proximity - that their act/ommission was SUFFICIENTLY PROXIMATE (close)

Question 27

If charged with a full offence, but it is deemed by the jury that there was insufficient evidence to prove, can the defendant automatically be convicted of attempts instead? (If sufficient grounds to prove attempts charge)

Answer 27

Yes - s149 Criminal Procedure Act 2011

Question 28

If a defendant is charged with attempts, but the evidence proves they committed the full offence, can they be convicted instead of the full offence?

Answer 28

No. If charged with attempts can not be convicted of full offence even if the evidence to support it is there. Can't withdraw the successful attempts charge to replace with the full offence either. s150 Criminal Procedure Act

Question 29

What must you prove with regards to intent for a successful charge of attempts?

Answer 29

Must prove intent to commit the offence - can't be charged with attempts in reckless or unintentional grounds (I.e. can't be charged with attempted manslaughter). Nor can you be charged with attempts if the attempt is actually part of the offence in itself (I.e. assault).

Question 30

What is "factually impossible" and what is the effect on criminal liability?

Answer 30

An act is factually/physically impossible if the act amounts to an offence, but the suspect is unable to commit it due to interruption, ineptitude or other circumstances outside their control. Can still be charged with attempts due to criminal intent.

Question 31

What is "legally impossible" and what is its effect on criminal liability?

Answer 31

Where the act would not be an offence. Suspect can not be charged with attempts, even with criminal intent. I.e. R v Donnelly - stolen suitcase retrieved and returned to rightful owner by Police, prior to the receiver attempting to pick it up. Can't charge as the goods are no longer stolen - legally impossible.

Question 32

Explain the "all but" rule when it comes to attempts.

Answer 32

The accused must have started to commit the full offence and gone beyond the phase of mere preparation. I.e. must have completed "all but" the offence.

Question 33

What is the judges role in an attempts charge?

Answer 33

Judges role to determine whether the accused has left the preparation stage and was trying to commit the full offence. If decided it does, then goes to trial.

Question 34

What is the jury's role in an attempts charge?

Answer 34

Determine whether the actus reus and requisite Mens rea has been proven beyond reasonable doubt. Also to determine if defendants actions were close enough (proximate) to the full offence.

Question 35

What defences do the accused lose once proven they were sufficiently proximate to the intended offence? (3)

Answer 35

1. Prevented by some outside agent from completing the full offence (I.e. Police). 2. Failed to complete the full offence due to ineptitude/inefficiency/insufficient means. 3. Prevented from committing the offence because an intervening event made it physically impossible (I.e. removal of property before it was stolen).

Question 36

Case law: R v Ring

Answer 36

Can be convicted of an attempt event if an offence is factually/physically impossible. (Attempted to steal from empty pockets).

Question 37

Case law: R v Harpur

Answer 37

When assessing conduct there must be a full evaluation in terms of time place and circumstance. Acts viewed in isolation may appear only preparatory, but when viewed collectively amount to an attempt.

Question 38

Case law: R v Donnelly

Answer 38

Legally impossible acts can not be charged with attempts. Stolen suitcase returned to rightful owner by Police before reliever could attempt to take it. Goods were no longer stolen, unable to be convicted.

Question 39

What is s66(1) of the Crimes Act 1961?

Answer 39

Parties to an offence. (1) Everyone is party to and guilty of an offence who: a) Actually commits the offence; or b) Does/Omits an act for the purpose of aiding any person to commit the offence; or c) abets any person in the commission of the offence; or d) incites, counsels, or procures any person to commit the offence.

Question 40

In terms of s66(1) who is considered the primary and who is the secondary party?

Answer 40

Primary party is the one who actually commits the act/ommission [s66(1)(a)] Secondary party is the one who supports the primary BEFORE OR DURING the act/ommission [s66(1)(b-d)].

Question 41

What is "aids" in regards to being a party to an offence?

Answer 41

To assist in the commission of the offence - either physically or by giving advice.

Question 42

What is "abets" in regards to being a party to an offence?

Answer 42

To instigate, encourage, urge another person to commit the offence. Presence and inaction alone can amount to "abets" if a special relationship exists (parents, police etc.)

Question 43

What is "incites" in regards to being a party to an offence?

Answer 43

To rouse, stir up, animate, urge or spur on a person to commit an offence.

Question 44

What is "counsels" in regards to being a party to an offence?

Answer 44

Intentionally instigate by advising how best to commit the act or by planning.

Question 45

What is "procures" in regards to being a party to an offence?

Answer 45

Requires that the secondary party deliberately cause the principal party to commit the offence (I.e. hiring a hitman).

Question 46

What is s66(2) of the Crimes Act 1961?

Answer 46

Parties to an offence. (2) where two or more people form a common intention to prosecute any unlawful purpose, and to assist each other therein, each is a party to every offence committed by any one of them in the prosecution of their common purpose if the commission of that offence was known to be a PROBABLE CONSEQUENCE of the prosecution of the common purpose.

Question 47

What is "probable consequence" in regards to being a party to an offence?

Answer 47

A subjective appreciation on the part of the offender - must actually forsee that their co-offender will commit another offence in pursuit of their common purpose. Sufficient to show that they knew there was a real risk this could occur.

Question 48

What's an "innocent agent" in regards to being a party to an offence?

Answer 48

Someone unaware of the planned schemes and the significance of their actions. Innocent agents carry no liability.

Question 49

What are the four requirements to withdraw from being a party to an offence?

Answer 49

1. Notice of withdrawal in words or actions 2. Unequivocal withdrawal 3. Communicate the withdrawal to the principal parties. 4. Taking all reasonable steps to undo the effects of the party's previous actions.

Question 50

Can a secondary party be charged with an offence without the primary/principal party being charged?

Answer 50

Yes.

Question 51

Case law: R v Betts & Ridley

Answer 51

An offence where no violence is contemplated (by secondary) and the primary uses violence carrying out the common aim, the secondary is not liable for the violence used.

Question 52

Case law: R v Renata

Answer 52

*Parties* Where the principal offender can't be ID'd, it is sufficient to prove each party must have been either the primary or secondary I.e. group bashing resulting in death of the victim - unsure who threw the killing punch though.

Question 53

Case law: Larkins v Police

Answer 53

*Regarding "aiding"* Not necessary to show the principal party knew they were being assisted, just that actual assistance occurred.

Question 54

Case law: R v Russell

Answer 54

Where a special relationship exists with a duty to intervene (Police, Army, Parents, Security etc) failure to do so may amount to abets.

Question 55

What is the definition of "Accessory after the fact"?

Answer 55

Knowing someone is party to an offence, received, comforts, assists, tampers or suppresses evidence to enable them to avoid arrest, escape arrest or avoid conviction. s71 Crimes Act 1961

Question 56

What must you prove for a charge of accessory after the fact? (3)

Answer 56

*Knowledge* - an offence has been committed - the person they are assisting is party to the offence. *Actus reus* - Receives, comforts, assists, tampers with evidence, actively suppresses evidence (only requires one of these) *Mens Rea* With intent to help the party: - avoid arrest, or - escape after arrest, or - avoid conviction

Question 57

Case law: R v Mane

Answer 57

To be considered an accessory, the acts done by the person must be AFTER the completion of the prinicpal offence

Question 58

Case Law: R v Crooks

Answer 58

"Knowledge" means having no real doubt the person assisted was a party to the relevant offence. I.e. mere suspicion that someone was party to the offence is not sufficient.

Question 59

Case law: R v Briggs

Answer 59

Knowledge may be inferred from "wilful blindness" - Not making enquiries that would confirm the suspected truth.

Question 60

Give an example of "harbours" in relation to accessory.

Answer 60

Provides shelter to.

Question 61

Give an example of "comforts" in relation to accessory.

Answer 61

Accommodation/shelter/food/clothes

Question 62

Give an example of "assists" in relation to accessory.

Answer 62

Lookout/transport/provide authorities with false information/advising/providing information, material or services.

Question 63

Give an example of "tampers with" in relation to accessory.

Answer 63

Alters evidence against offender

Question 64

Give an example of "actively surpresses evidence" in relation to accessory.

Answer 64

Conceals/destroys/hides evidence.

Question 65

Define "Knowledge". Cite the relevant source.

Answer 65

Knowledge mean "correctly believing" Simester and Brookbanks

Question 66

Can a person conspire with their spouse/civil union partner?

Answer 66

Yes - s67 Crimes Act 1961

Question 67

Case law R v Gemmell

Answer 67

The essence of conspiracy is the agreement to commit the substantive offence. It need not be carried out to its fruition, but there must be an intention to take those steps.

Question 68

Case law R v White

Answer 68

Where you can prove a suspect conspired with other, unidentified parties, you can still charge that suspect with conspiracy (despite not knowing the other parties).