Criminal Liablities Flashcards
(4 cards)
Conspiracy
Conspiracy
Crimes Act 1961, Section 310(1)
Conspires
With any person
To commit any offence or
To do or omit, in any part of the world,
Anything of which the doing or omission in New Zealand would be an offence.
CONSPIRES
Mulcahy v R
“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…”
The conspiratorial agreement requires the operation of both the physical and mental faculties.
The mens rea (mental intent) necessary for a conspiracy is:
An intention of those involved to agree, and
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. Where this intent does not exist no crime has been committed.
The actus reus (physical element) of conspiracy is the agreement between two or more people to put their common design into effect.
Intent
In a criminal law context there are two specific types of intention in an offence. Firstly there must be an intention to commit the act and secondly, an intention to get a specific result.
Circumstantial evidence from which an offender’s intent may be inferred can include:
The offender’s actions and words before, during and after the event
The surrounding circumstances
The nature of the act itself.
R v Sanders
“A conspiracy does not end with the making of the agreement. The conspiratorial agreement continues in operation and there in existence until it is ended by completion of its performance or abandonment or in any other manner by which agreements are discharged”.
WITH ANY PERSON
Proven by Judicial Notice or Circumstantial Evidence. A person cannot conspire alone; there must be another conspirator for an offence to be committed.
R v White
Where you can prove that a suspect conspired with other parties (one or more people) whose identities are unknown, that suspect can still be convicted even if the identity of the other parties is never established and remains unknown.
TO COMMIT ANY OFFENCE
“Offence” and “crime” are words that are used interchangeably in statute, and there is no material difference between them. They may be described as any act or omission that is punishable on conviction under any enactment.
Accessory After the Fact
Accessory After the Fact
Crimes Act 1961, Section 71(1)
Knowing any person to have been a party to the offence
Receives, comforts, or assists that person OR tampers with OR actively suppresses any evidence against him
In order to enable him to escape after arrest OR to avoid arrest or conviction.
Crimes Act 1961, Section 312
Every one who is accessory after the fact to any imprisonable offence, being an offence in respect of which no express provision is made by this Act or by some other enactment for the punishment of an accessory after the fact, is liable to imprisonment for a term not exceeding 7 years if the maximum punishment for that offence is imprisonment for life, and not exceeding 5 years if such maximum punishment is imprisonment for 10 or more years; and in any other case is liable to not more than half the maximum punishment to which he would have been liable if he had committed the offence.
KNOWING
At the time of the assistance being given, an accessory must possess the knowledge that:
An offence has been committed, and
The person they are assisting was a party (principal or secondary) to that offence
“Knowing” means knowing or correctly believing. The belief must be a correct one, where the belief is wrong a person cannot know something.
R v Crooks
Knowledge means actual knowledge or belief in the sense of having no real doubt that the person assisted was a party to the relevant offence. Mere suspicion of their involvement in the offence is insufficient.
R v Briggs
Knowledge may also be inferred from wilful blindness or a deliberate abstention from making inquiries that would confirm the suspected truth.
ANY PERSON
Carries its natural meaning and in relation to accessory after the fact means any other person.
TO HAVE BEEN A PARTY
Crimes Act 1961, Section 66
Every one is a party to and guilty of an offence who-
Actually commits the offence; or
Does or omits an act for the purpose of aiding any person to commit the offence; or
Abets any person in the commission of the offence; or
Incites, counsels, or procures any person to commit the offence.
TO THE OFFENCE
“Offence” and “crime” are words that are used interchangeably in statute, and there is no material difference between them. They may be described as any act or omission that is punishable on conviction under any enactment.
R v Mane
To be considered an accessory the acts done by the person must be after the completion of the offence.
RECEIVES OR COMFORTS
Harbouring an offender or offering them shelter can be considered receiving and/or comforting, eg. hiding a prison escapee in a basement.
Comforting encompasses situations where an accessory provides an offender with things such as food and clothing.
ASSISTS
To assist covers a significant number of situations: providing transport, acting as a look out, identifying someone willing to purchase stolen property as a receiver and deliberately providing authorities with false information as to an offender’s whereabouts. Giving advice, information, material or services to the offender is also captured.
TAMPERS WITH EVIDENCE
To alter the evidence against the offender.
ACTIVELY SUPPRESSES EVIDENCE
Acts of concealing or destroying evidence against an offender.
ESCAPE AFTER ARREST OR AVOID ARREST OR CONVICTION
R v Gibbs
The act or acts done by the accessory must have helped the other person in some way to evade justice.
R v Levy
A deliberate act in relation to the evidence against the offender for the purpose of assisting that offender to evade justice.
Perjury
Perjury
Crimes Act 1961, Section 108
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
WITNESS
A person who gives evidence and is able to be cross-examined in a proceeding.
ASSERTION
This is something declared or stated positively, often with no support or attempt made at furnishing evidence or proof of the assertion’s accuracy.
MATTER OF FACT
A fact is a thing done, an actual occurrence or event, and it is presented during court proceedings in the form of witness testimony and evidence.
OPINION
Evidence Act 2006, Section 4
Opinion, in relation to a statement offered in evidence, means a statement of opinion that tends to prove or disprove a fact.
BELIEF
Belief is essentially a subjective feeling regarding the validity of an idea or set of facts. It is more than mere suspicion and less than knowledge.
KNOWLEDGE
“Knowing” means “knowing or correctly believing”… the belief must be a correct one, where the belief is wrong a person cannot know something.
JUDICIAL PROCEEDING
Giving evidence in a proceeding by way of audio-visual link from another location is to be considered as taking place at the hearing.
GIVING EVIDENCE
To give evidence means to give evidence in a proceeding, in one of three defined ways:
In the ordinary way as described in s83 (personally in court or by affidavit); or
In an alternative way, as provided for by s105 (CCTV, DVD, screens etc.); or
In any other way provided for under this Act or by any other enactment.
OATH
This is a declaration before a person who has authority to administer an oath, which invokes some religious belief and says that a thing is true or right.
INTENTION TO MISLEAD
The offence of perjury is complete at the time the false evidence is given accompanied by an intention to mislead the tribunal. There is no defence where the witness later recants and informs the tribunal of the falsity of the earlier evidence given.
Receiving
Receiving
Crimes Act 1961, Section 246(1)
Receives
Any property
Stolen OR obtained by any other imprisonable offence
Knowing that at the time of receiving the property that it had been stolen or obtained by any other imprisonable offence, OR
Being reckless as to whether or not the property had been stolen or so obtained.
RECEIVES
The act of receiving requires the satisfaction of three elements:
There must be property which has been stolen or has been obtained by an imprisonable offence.
The defendant must have “received” that property, which requires that the receiving must be from another (you cannot receive from yourself).
The defendant must receive that property in the knowledge that it has been stolen or illegally obtained or being reckless as to that possibility.
Crimes Act 1961, Section 246(3)
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.
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.
POSSESSION
R v Cox
Possession involves two elements. The first, the physical element, is actual or potential physical custody or control. The second, the mental element, is a combination of knowledge and intention: knowledge in the sense of an awareness by the accused that the substance is in his possession and an intention to exercise possession.
Cullen v R
There are four elements of possession for receiving:
Awareness that the item is where it is;
Awareness that the item has been stolen;
Actual or potential control of the item; and
An intention to exercise that control over the item.
PROPERTY
Crimes Act 1961, Section 2
Property includes real and personal property, and any estate or interest in any real and personal property, money, electricity, and any debt, and anything in action, and any other right or interest.
R v Lucinsky
The property received must be the property stolen or illegally obtained (or part thereof), and not some other item for which the illegally obtained property had been exchanged or which are the proceeds.
STOLEN OR OBTAINED BY ANY OTHER IMPRISONABLE OFFENCE
Crimes Act 1961, Section 219(4)
For tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved.
“Obtain” has its ordinary meaning of “acquired” or “got” in the sense of achieving physical control over the goods in question.
KNOWING THAT PROPERTY TO HAVE BEEN STOLEN OR SO OBTAINED
Knowing means “knowing or correctly believing”. The defendant may believe something wrongly but cannot “know” something that is false.
R v Kennedy
The guilty knowledge that the thing has been stolen or dishonestly obtained must exist at the time of receiving.
BEING RECKLESS AS TO WHETHER OR NOT THE PROPERTY HAD BEEN STOLEN OR SO OBTAINED
Cameron v R
Recklessness is established if:
The defendant recognised that there was a real possibility that:
(i) his or her actions would bring about the proscribed result; and/or
(ii) that the proscribed circumstances existed; and
Having regard to that risk those actions were unreasonable.
