Evolution Of The Offence

Question 1

What are the 5 statutory defenses?

Answer 1

Infancy
Defence of self or of another
Defence of property 
Insanity 
Compulsion

Question 2

What are the six common law defenses?

Answer 2

Impossibility
Necessity 
Consent 
Intoxication 
Mistake 
Sane automatism

Question 3

Section act and elements of conspiracy?

Answer 3

s310(1) CA 1961

An agreement between two or more persons to commit an imprisonable offence

Question 4

What does section 72 of the crimes act cover?

Answer 4

Attempts.

Must an intent to commit offence
Must have done or attempted to do an act
And that act must be sufficiently proximate to the completion of the offence

Question 5

What is the standard of proof required?

Answer 5

Beyond a reasonable doubt.

The prosecution is required to prove that no other logical explanation can be derived from the facts except that the defendant committed the offence.

Question 6

For a conviction in a case of conspiracy what must the crown prove?

Answer 6

Actus reus: an agreement formed via words acts gestures between two or more people to commit an offence.

Mens rea: an intention to carry out the full offence.

failure doesn’t matter, factually impossible doesn’t matter, legal impossibility does matter. Incompetence doesn’t matter.

Question 7

Case law Mulcahy

Answer 7

A conspiracy consists not merely of the intention of two or more but in the agreement of two or more to do an unlawful act by unlawful means.

Question 8

Withdrawing from an agreement

Answer 8

A person withdrawing from an agreement is still guilty of conspiracy

Question 9

What does section 67 of the Crimes Act outline?

Answer 9

The liability when conspiring with a spouse or partner.

A person is capable of conspiring with his or her spouse or civil union partner or with his or her spouse or civil u ion partner and any other person.

Question 10

Proof of attempt

Answer 10

The requisite intention may be proven by admissions or confessions, or inferred from the act itself.

Question 11

Attempts: a question of fact?

Answer 11

Whether the intent exists or not is a question of fact; a question that the jury decides.

Question 12

The actus reus of attempt

Answer 12

Defendant must have done or omitted to do something that is sufficiently proximate to the full offence.

Must have started to commit the full offence

Must have gone past the phase of preparation

Question 13

R v Wilcox

Answer 13

The defendants actions must be the commencement of the execution of the intended offence

the defendant must have begun to perpetrate the crime

Question 14

R v Harper

Answer 14

On assessing the conduct, must evaluate time place and circumstance. What remains to be done is always relevant but not always determinative

Question 15

Section 72(c): a question of law

Answer 15

Proximity is a question of law decided by the judge based on the assumption that the facts of the case are proved.

Question 16

Simester and Brookbanks test for proximity

Answer 16

Questions to ask when determining the point that preparation becomes an attempt:

Has the offender done anything more than getting himself in a position to attempt?

Has the offender commenced execution?

If the answer to either is yes then there has been an attempt. If not, conduct can be classed as preparation.

Question 17

Once an act is sufficiently proximate to the intended offence, the attempt is complete even if:

Answer 17

They were prevented by some outside agent

The failed to complete it due to ineptitude

They were prevented because of an intervening event

Question 18

Function of the judge for attempts?

Answer 18

Judge must decide whether accused has left the preparation stage And was already trying to effect completion of the full offence.

Question 19

Situation where you are unable to charge with attempts?

Answer 19

The criminality depends on recklessness or negligence eg manslaughter

At attempt to commit an offence is included within the definition of that offence eg assault

The offence is such that the act has to be completed in order for it to exist at all eg demanding with menace

Question 20

Parties: what is the distinction between principal and secondary parties?

Answer 20

Person actually committing the offence is liable as a principle

Those who assist, abet, incite, counselling, procure the principle are liable as secondary parties

Question 21

Difference between parties tō and accessory after the fact?

Answer 21

Parties: participation occurred before or contemporaneous with the commission of the offence and before completion of the offence

Accessory after the fact: provides assistance to principle or secondary offender following the commission of the offence.

Question 22

Section 66(1)(a)-(d) of the Crimes Act 1961?

Answer 22

Everyone is 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

Question 23

Definition of Aids?

Answer 23

To assist in the commission of an offence, either physically or by giving information

The presence of the person offering the aid is not required at the scene before during or after

Question 24

Sedition of abets?

Answer 24

To instigate or encourage, to urge another to commit the offence

The presence of the abetted at the scene at the time of its confusion is not required

Question 25

Definition of incites?

Answer 25

To stir up, stimulate, animate, or spur person to commit the offence

Question 26

Definition of counsels?

Answer 26

To intentionally instigate offence by advising on how to best commit an offence, or planning the commission of an offence for another person.

Question 27

Definition of procures?

Answer 27

Setting out to see that something happens, and taking appropriate steps to ensure that it does.

Requires that the secondary party causes the principle to commit the offence

Question 28

Party to a secondary offence?

Answer 28

S66(2) Crimes Act

Can occur when a common intention is formed by two or more people to assist each other to commit an offence.

Question 29

R v Betts and Ridley

Answer 29

An offence where no violence is contemplated and the principle offender in carrying out the common aim uses violence, a secondary offender taking no physical part in it would be held liable for the violence used.

Question 30

s71 accessory after the fact:

Answer 30

knowing a person to have been party to the offence

recieves comforts or assists that person

or tampers with or actively surprises any evidence against him or her

in order to enable him or her to escape arrest or avoid arrest and conviction

Question 31

Four essential elements must be provided to establish liability under 71:

Answer 31

An offence was committed by the person received comforted or assisted

At the time of reviving comforting or assisting, the accessory knew that person was party to an offence

The accessory received comforted assisted or actively tampered worh or aye pressed any evidence

At this time, the accessory’s purpose was to enable that person to escape after arrest or avoid arrest or conviction

Question 32

R v Mane

Answer 32

The be considered an accessory the acts done by the person must be after the completion of the offence

Question 33

R v Crooks

Answer 33

Knowledge means actually knowledge or belief in the sense of having no real doubt that the person assisted was party to the relevant offence. Mere suspicion of their involvement is insufficient.

Question 34

R v Briggs

Answer 34

Knowledge may also be inferred from wilful blindness or a deliberate abstention from making enquires that would confirm the suspected truth.

Question 35

Actus reus of accessory

Answer 35

Accessory must do an intentional act with the purpose of escape after arrest, avoid arrest, avoid conviction.

Intentional acts: receive, comfort, assist, tanker with evidence, actively surpress evidence.

Question 36

What is the intent of an accessory?

Answer 36

To enable offender to:

Escape after arrest
Avid arrest
Avoid conviction