Flashcards in Association Offences - MC & SA Deck (56)
Conspiracy Section + Penalty
Section 310(1) CA 61
offence > 7 years = 7 years
any other case = same penalty
Receiving Section + Penalty
Penalty section 247
Value over $1000 = 7y
Value over $500 up to $1000 = 1y
Value up to $500 = 3month
Can A person can be charged with conspiracy in circumstances where they themselves are incapable of effectively carrying out the substantive offence?
Can Spouses or civil union partners conspire together?
Explain the liability of a person who agrees to commit an offence with another person but then withdraws from the agreement before the completion of the intended offence
A person withdrawing from the agreement is still guilty of conspiracy as are those people who become party to the agreement after it has been made. However a person can effectively withdraw before the actual agreement is made.
What was held in the case of R v Mulcahy as it relates to conspiracy?
A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rests in intention only it is not indictable. When two agree to carry it (the intended offence) into effect, the very plot is an act in itself,
When is the offence of conspiracy complete?
The offence is complete on the agreement being made, accompanied by the required intent. It does not require any further progression toward its completion by those involved in the agreement.
What five points should be covered when interviewing conspiracy suspects?
Interview the suspects concerned to establish:
• the existence of an agreement to commit an offence, or
• the existence of an agreement to omit or do something that would amount to an offence, and
• the intent of those involved in the agreement
• the identity of all people concerned
• whether anything was written, said or done to further the common purpose.
Attempting to commit an offence\
Section + Defintion
Crimes Act 1961
(1) Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.
Three elements of an attempt offence
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
R v Ring
In this case 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 demonstrated by his actions. The remaining elements were also satisfied.
R v Harpur
“[The Court may]” have regard to the conduct viewed cumulatively 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.”
In the previously cited R v Harpur, the defendant was involved in a series of text messages with a woman in which he described, in explicit detail, sexual acts that he wanted to perform on the woman’s 4-year-old niece. He arranged for the girl to be brought to him for that purpose
Higgins v Police
Where plants being cultivated as cannabis are not in fact 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.
Police v Jay
A man bought hedge clippings believing they were cannabis.
R v Donnelly
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.
The court decided that despite Donnelly’s mens rea and actus reus, it was legally impossible for him to receive stolen property as those goods were no longer deemed to be stolen. His conviction was set aside. An attempt to receive such stolen goods is therefore possible in fact, but impossible in law.
Can a person can be convicted of an attempt to commit an offence that was in fact physically impossible for them to commit. However it must be legally possible to commit the offence.
What are three groups of offences that do not allow for a prosecution in respect of an attempt?
• The criminality depends on recklessness or negligence; ie manslaughter.
• An attempt to commit an offence is included within the definition of that offence, eg assault.
• The crime is such that the act must be completed in order for the offence to exist at all, eg person cannot attempt to demand money with menaces.
What elements must be proved to successfully prosecute someone for attempting to commit an offence?
In each case of attempt, you must prove the identity of the suspect and that they:
• intended to commit an offence, and
• did, or omitted to do, something to achieve that end.
Once an offender has committed acts that are sufficiently proximate to the full offence, there are three situations that do not amount to a defence to the charge. What are those three situations?
• 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 crime because an intervening event made it physically impossible, eg removal of property before intended theft.
Section + defenition
Section 66, Crimes Act 1961
(1) Every one 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 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.
R v Pene
A party must intentionally help or encourage - it is insufficient if they were reckless as to whether the principal was assisted or encouraged.
R v Renata
The court held that where the principal offender cannot be identified, it is sufficient to prove that each individual accused must have been either the principal or a party in one of the ways contemplated by s66(1).
In Renata three offenders beat a person to death in the car park of a tavern. The prosecution was unable to establish which blow was the fatal one or which of the three offenders administered it. The Court held that in matters such as these, the prosecution should look to proving culpability through mens rea and actus reus highlighted in s66(1).
Larkins v Police
While it is unnecessary that the principal should be aware that he or she is being assisted, there must be proof of actual assistance.
Ashton v Police
An example of a secondary party owing a legal duty to a third person or to the general public is a person teaching another person to drive. That person is, in New Zealand, under a legal duty to take reasonable precautions, because under s156 of the Crimes Act 1961 he is deemed to be in charge of a dangerous thing.
R v Russell
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
The defendant was charged with the murder of his wife and two sons. Following an argument between he and his wife, the wife, in the presence of the defendant, allegedly jumped into a swimming pool with both children, drowning them all. The defendant failed to render assistance to his wife or their children.
Party to a secondary offence
Section 66(2), Crimes Act 1961
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 offender taking no physical part in it would not be held liable for the violence used.
In what situations does a person become liable as a party to an offence under s66(1) of the Crimes Act 1961?
A person is liable as a party to an offence under s66(1) where they:
• Actually commit the offence.
• Do or omit an act for the purpose of aiding any person to commit an offence.
• Abet any person in committing an offence.
• Incite, counsel or procure any person to commit an offence.
What is the distinction between ‘aiding and abetting’ and ‘inciting, counselling and procuring’?
In general terms, ‘aiding and abetting’ requires the aider or abettor to be present at the scene before or at the time of the offence being committed, whereas ‘inciting, counselling and procuring’ describe the actions taken before the offence is carried out.