Evolution of the Offence

Question 1

Mens rea - definition

Answer 1

“Guilty mind”

Intention or knowledge of wrongdoing that constitutes part of the crime

Question 2

Define intent and cite case law

Answer 2

A deliberate act to obtain a specific result

R v Collister
Circumstantial evidence from which an offender’s intent may be inferred can include:
- the offender’s words or actions before, during and after the event
- the surrounding circumstances
- the nature of the act itself

Question 3

Case law for recklessness (x2)

Answer 3

Cameron v R
Recklessness is established if:
(a) the defendant recognised that there was a real possibility that:
- his or her actions would bring about the proscribed result; and/or
- that the proscribed circumstances existed; and
(b) having regard to that risk those actions were unreasonable

R v Tipple
Recklessness requires that the offender know of, or have a conscious appreciation of the relevant risk, and it may be said that it requires a “deliberate decision to run the risk”
(conscious taking of an unjustified risk)

Question 4

Subjective recklessness - definition

Answer 4

A foresight of dangerous consequences which could well happen, with an intention to continue regardless of the risk

subjective test - “what did they think at the time”

Question 5

Objective recklessness - definition

Answer 5

An accused will be reckless if he or she does an act which in fact creates an obvious risk that a prohibited event will result, and when the accused does the act he or she either has not given any thought to the possibility of there being any such risk or has recognised that there is some risk involved and has none the less gone on to do the act

objective test - what would a reasonable person think of (offender)’s actions

Question 6

Wilfulness

Answer 6

Intentionally or deliberately

Question 7

Actus reus

Answer 7

Commission of the guilty act

Question 8

Causal link / chain of causation

Answer 8

Must show that the consequences would not have happened ‘but for’ the defendant’s act or omission

An intervening act will not break the causal link.

Defendant’s must ‘take their victims as they find them’

Question 9

Common law defences

Answer 9

Impossibility - factually impossible to comply with law
Necessity - had a choice between two evils and the lesser involved breaking the law
Consent - does not involve assault where actual bodily harm was intended or caused, not a defence to murder
Intoxication - not a defence per se but can be taken into account for mens rea
Mistake - state of mind (intention, recklessness) was absent
Sane automatism - e.g. sleep walking, not due to disease of the mind

Question 10

Statutory defences

Answer 10

Infancy (s21) - children under 10yo cannot be guilty
Defence of self or another (s48) - justification to use force
Defence of property (s52-54) - movable thing, reasonable force to resist taking by trespasser, not incl strike or bodily harm
Insanity (s23) - presumed to be sane until contrary is proved
Compulsion (s24) - threats of death/GBH from another present person

Question 11

Conspiracy - definition

Answer 11

An agreement between two or more people to commit an offence

Must be more than intention

Question 12

Conspiracy - elements

Answer 12

Every one who 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, is liable to imprisionment for a term not exceeding 7 years if the maximum penalty for that offence exceeds 7 years imprisonment, and in any other case is liable to the same punishment as if he had committed the offence

• does not apply where another enactment allows for conspiracy for that offence (e.g. MODA)
• defence if charged with something outside NZ, if proven that the doing or omission of the act for the conspiracy was not a law under the place of where it was, was to be done or omitted

s310 CA61

Question 13

Conspiracy - case law

Answer 13

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.

Question 14

When a conspiracy ends - case law

Answer 14

R v Sanders

A conspiracy does not end with the making of the agreement. The conspiratorial agreement continues in operation and therefore in existence until it is ended by completion of its performance or abandonment or in any other manner by which agreements are discharged

Question 15

s25 NZ BORA 1990

Answer 15

Minimum standards of criminal procedure

Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:
- the right to be presumed innocent until proved guilty according to law

Question 16

Actus reus of conspiracy

Answer 16

The physical acts, words or gestures used by the conspirators in making their agreement is what is to be considered the actus reus of a conspiratorial agreement (whether this is an express or implied agreement).

Question 17

Case law - conspiracy (agreement)

Answer 17

R v Gemmell

The essence of the offence of conspiracy is in the agreement to commit a substantive offence. The agreement need not be carried to fruition (indeed no steps to implement it need be taken) but there must have been an intention that such steps would be taken.

Question 18

Case law - conspiracy (identity of other parties)

Answer 18

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.

Question 19

Conspiring with spouse or partner - elements

Answer 19

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

Question 20

Place of commission of offence - elements

Answer 20

For the purpose of jurisdiction, where any act or omission forming part of any offence, or any event necessary to the completion of any offence, occurs in New Zealand, the offence shall be deemed to be committed in New Zealand, whether the person charged with the offence was in New Zealand or not at the time of the act, omission, or event

Question 21

Case law - conspiracy (NZ)

Answer 21

R v Sanders

It is sufficient if one act or omission forming part of the offence or “any event necessary to the completion of any offence” occurs in New Zealand

Question 22

What must the Crown prove with a charge of conspiracy?

Answer 22

• Two or more people were involved
• An agreement was made
• The agreement was to commit an offence, and
• At the time of the agreement their intention was to commit the offence

Question 23

Attempts - elements

Answer 23

(1) Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his or her object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.

(2) The question whether an act done or omitted with intent to commit an offence is or is not only preparation for the commission of that offence, and too remote to constitute an attempt to commit it, is a question of law.

(3) An act done or omitted with intent to commit an offence may constitute an attempt if it is immediately or proximately connected with the intended offence, whether or not there was any act unequivocally showing the intent to commit that offence.

S72 CA61

Question 24

Intent with regard to attempts - what must be proved?

Answer 24

That the accused’s intention was to commit the substantive offence and that they “does or omits an act for the purpose of accomplishing their object”

Question 25

What three conditions must apply for an 'attempt' conviction to succeed?

Answer 25

- 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 omission was sufficiently close (the 'all but' rule) All three must be satisfied at a minimum. It must also be legally possible to commit the offence, in the circumstances. (Doesn't have to be physically possible however)

Question 26

Case law regarding intent to attempt an offence

Answer 26

R v Ring 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 was 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.

Question 27

Case law regarding attempts - conduct

Answer 27

R v Harpur In assessing the conduct there must be a full evaluation in terms of time, place and circumstance. What remains to be done is always relevant, but not determinative. The Court is permitted to focus more on the quality of the defendant's acts and the time, place and circumstances in which they occurred, and less on abstract tests of preparation and proxmity (independent acts, when viewed in isolation, can be construed as preparatory. when the same acts are viewed collectively, they may amount to attempts)

Question 28

Test for proximity with regard to attempts

Answer 28

- Has the offender done anything more than getting himself into a position from which he could embark on an actual attempt? OR - Has the offender actually commenced execution; that is to say, has he taken a step in the actual crime itself? If the answer to either is yes, then there has been an attempt. If no, it's preparation

Question 29

Case law in regard to legal impossibility

Answer 29

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

Question 30

What must you prove in attempts?

Answer 30

- the identity of the suspect(s), and - they intended to commit an offence, and - they did, or omitted to do, something to achieve their object

Question 31

Parties - elements and Act/section

Answer 31

(1) Every one is a party to and guilty of an offence who - (a) actually commits the offence (principal party); 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 (secondary party b/c/d) (2) Where 2 or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose s66

Question 32

When must participation have occurred for parties to an offence?

Answer 32

Before or during (After is accessory after the fact)

Question 33

What must you prove in relation to charging a person as party to an offence?

Answer 33

- the identity of the defendant; and - an offence has been successfully committed; and - the elements of the offence (s66(1)) have been satisfied

Question 34

What are the two methods by which multiple offenders can be considered principal offenders to parties?

Answer 34

- Each offender satisfied elements of the offence committed (separately and independently guilty of an assault) - no requirement to refer to s66 - Each offender separately satisfies part of the actus reus (when combined, complete actus reus)

Question 35

Explain case law in relation to proof of assistance with parties

Answer 35

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

Question 35

Explain case law in relation to principal offender of parties

Answer 35

R v Renata 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)

Question 36

Explain case law in relation to special relationships with parties

Answer 36

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

Question 37

Definition of abets

Answer 37

To instigate or encourage, urge another person to commit the offence. Abettor not required at the scene

Question 38

Definition of incites

Answer 38

To rouse, stir up, stimulate, animate, urge or spur on

Question 39

Definition of counsels

Answer 39

To intentionally instigate the offence by advising a person on how best to commit it, or planning the commission for another person. May also mean urging

Question 40

Defintion of procures

Answer 40

Setting out to see that something happens and taking the appropriate steps to ensure that it does Requires that the secondary party deliberately causes the principal party to commit the offence. Stronger connection. May be fraud, persuasion, words or conduct, such as an offer of payment

Question 41

Case law in relation to 66(2)

Answer 41

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 caused (flipside of what 66(2) relates to)

Question 42

Probable consequence - two qualifications to be satisfied

Answer 42

Q1: There is no requirement that person A knows or foresees the precise manner in which offence B is to be committed by person B. Person A need only realise that an offence of that type is probable. Q2: There is no requirement that person A's foresight of offence B include any appreciation of the consequences of the physical elements of the offence committed (offence B), but for which no mens rea element is required

Question 43

Requirements to satisfy withdrawal from an offence

Answer 43

- notice of withdrawal either in words or actions; - unequivocal withdrawal - communication of the fact of withdrawal to the principal offenders; and - the taking of all reasonable steps to undo the effect of the party's previous actions

Question 44

Accessory after the fact - elements and section

Answer 44

An accessory after the fact to an offence is one who, 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 or her, in order to enable him or her to escape after arrest or to avoid arrest or conviction S71 Actus reus - five acts outlined above

Question 45

Accessory after the fact - what needs to be proved

Answer 45

- That the person (person A) who is received, comforted or assisted by the accessory (person B) is a party (principal or secondary party) to an offence that has been committed. - That, at the time of receiving, comforting or assisting that person (person A), the accessory (person B) knows that person (person A) was a party to the offence - That the accessory (person B) received, comforted or assisted that person (person A) or tampered with or actively suppressed any evidence against that person (person A) - That, at the time of the receiving, comforting or assisting etc, the accessory's (person B) purpose was to enable that person (person A) to escape after arrest or to avoid arrest or conviction The offence needs to be complete to be an accessory.

Question 46

Case law - accessory and completion

Answer 46

R v Mane To be considered an accessory the acts done by the person must be after the completion of the offence

Question 47

Case law - accessory and knowledge

Answer 47

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

Question 48

Case law - accessory and wilful blindness

Answer 48

R v Briggs As with a receiving charge under s246(1), knowledge may also be inferred from wilful blindness or a deliberate abstention from making inquiries that would confirm the suspected truth

Question 49

Define the intent of an accessory after the fact

Answer 49

To enable the offender to: - escape after arrest - avoid arrest - avoid conviction