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Flashcards in Module 6: Association Offences Deck (74)
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1

Is a person withdrawing from a conspiracy still guilty of the offence?

A person withdrawing from the agreement is still guilty of conspiracy as are those who become party to the agreement after it has been made.

However a person can effectively withdraw before the actual agreement is made.

2

When does a conspiracy end (case law)?

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.

3

What are the admissibility rules around conspiracy?

The intention, of the parties involved, to actually carry out the offence is an essential element to a conspiracy charge. There must be a common aim to commit some offence and an intention that the aim is to be effected.

Anything a conspirator or party to a joint charge says or does to further the common purpose is admissible against the others involved, this being an exception to the hearsay rule and as such conspirators should be jointly charged.

However, this does not include explanations made after the common purpose is carried out. Then, the explanation is evidence only against the person making it.

4

What is the investigative procedure for suspects in relation to conspiracy?

Interview the people concerned, and obtain statements to establish:

• The existence of an agreement to commit an offence, or
• The existence of an agreement to omit to do something that would amount to an offence, and
• The intent of those involved in the agreement
• The identity of all people concerned where possible
• Whether anything was written, said or done to further the common purpose.

5

What should you consider when charging someone with conspiracy?

Laying both a substantive charge and a related conspiracy charge is often undesirable because:

• The evidence admissible only on the conspiracy charge may have a prejudicial effect in relation to other charges
• The judge may disallow the evidence as it will be too prejudicial, ie the jury may assume the accused’s guilty knowledge or intent regarding the other charge and not look at the evidence, basing its assumption on the conspiracy charge.
• The addition of a conspiracy charge may unnecessarily complicate and prolong a trial
• Where the charge of conspiracy is not founded on evidence or is an abuse of process, it may be quashed
• Severance may be ordered. This means that each indictment or information may be heard at separate trials.

6

In each case of attempt, you must prove?

• The identity of the suspects, and
• Intent - That they intended to commit an offence, and
• Act - They did, or omitted to do, something to achieve that end
Proximity - That their act or omission was sufficiently close.

7

In relation to attempts what is R v Harpur and what was concluded?

R v Harpur
The court may have regard to the conduct viewed cumulatively up to the point when the conduct in question stops.... the defendants conduct may be considered in its entirety. Considering how much remains to be done.... is always relevant, thought not determanative.

‘his actions need not be considered in isolation;sufficient evidence of his intent was available from the events leading up to that point.’

8

The following questions should be asked in determining the point at which an act of mere preparation may become an attempt?

• 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?

9

What is an example of a legally impossible act, refer to case law?

R v Donnelly
Where stolen property has been returned to the owner or legal title to any such property ha been acquired by an person, it is not an offence to subsequently receive it, even though the receive may know that the property had previously been stolen or dishonestly obtained.

10

Once the acts are sufficiently proximate, the accused has no defense that they?

• Were prevented by some outside agent from doing something that was necessary to complete the offence; eg interruption from police

• Failed to complete the fill 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

11

You are not able to charge someone with an attempt to commit a crime where?

• The criminality depends on recklessness or negligence, eg manslaughter

• An attempt to commit an offence is included within the definition of that offence, eg assault

• The offence is such that the act has to have been completed in order for the offence to exist at all. EG, demanding with menaces; it is the demand accompanied by the menace that constitutes the offence

12

What are the ingredients to Parties to an offence Section 66, Crimes Act 1961?

(1) Everyone 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

13

What is the case law in relation to multiple offenders and parties to an offence?

R v Renata

Three offenders beat the victim 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 3 offenders administered it.

‘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 in s66(1)’

14

What is a secondary offender in relation to being party to an offence?

Those who assist in the principal offender(s) either before or during the commission of an offence are considered secondary offenders and thus their liability generally lies within the scope of s66(1)(b), (c) or (d)

To be party to an offence, the acts of the secondary offender must be earlier in the time or contemporaneous with the acts of the principal offender(s). Whether the acts are contemporaneous is dependent on the circumstances of each case.

Where the act was part of the original planning, eg providing a means of escape, then the person who committed this act would be deemed to be a principal party.

However, a person cannot be convicted as a party for an offence that is already complete. In such a case they would be liable as an accessory.

15

Actual proof of assistance is required for Parties to offences, what are 3 examples?

• Keeping lookout for someone committing a burglary
• Providing a screwdriver to someone interfering with a motor vehicle
• Telling an associate when a neighbor is away from their home so as to allow the opportunity to commit a burglary

16

What is an example of a legal duty?

An army sergeant who watches as a subordinate assaults another person and does nothing to prevent it would be liable as a secondary party to the assault. This is because the sergeant has a power of control over the subordinate and a lawful duty to prevent such incidents and intervene.

17

What does incite mean?

To incite means to ‘rouse, stir up, stimulate, animate, urge or spur on a person to commit the offence.

18

What needs to be proven for Accessory after the fact?

• 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.

19

What are the Spouse/civil union partner exceptions in relation to Accessory After the Fact?

Under S71(2), you cannot be charged with being an accessory after the fact to your spouse (legally married), or your spouse and another party (this when they work in concert). This is the same for those in a civil union, but not a de facto relationship.

20

What is the legislation and case law for Knowing any person to have been a party to an offence in relation to Accessory after the fact?

‘’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.

21

At the time of the assistance being given, an accessory must process the knowledge that?

• An offence has been committed, and

• The person they are assisting was a party (principal or secondary) to that offence

Where this knowledge comes about following the rendering of the assistance they are not liable as an accessory

22

Evidence of perjury, false oath, or false statement in relation to Misleading Justice?

Section 112, CA1961 – No one shall be convicted of perjury, or of any offence against section 110 or section 111 of this Act, on the evidence of one witness only, unless the evidence of that witness is corroborated in some material particular by evidence implicating the accused.

23

What is Fabricating evidence in relation to Misleading Justice?

Everyone is liable to imprisonment for a term not exceeding 7 years who, with intent to mislead any
tribunal holding any judicial proceeding to which section 108 applies, fabricates evidence by any means other than perjury.

24

What are the Ingredients of Perjury?

The ingredients of the offence of perjury are:

• 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

25

What is opinion evidence by Lay witnesses?

Section 24, Evidence Act 2006 – A witness may state an opinion in evidence in a proceeding if that opinion is necessary to enable the witness to communicate, or the fact-finder to understand, what the witness saw, heard, or otherwise perceived.

26

What is 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.

27

Examples of misleading justice (PRACTICAL 9 points)?

Examples of conspiring or attempting to mislead justice within sections 116 and 117 may include:

• Preventing a witness from testifying
• Willfully going absent as a witness
• Threatening or bribing witnesses
• Concealing the fact a crime has been committed
• Intentionally giving police false information to obstruct their inquiries
• Supplying false information to probation officers
• Assisting a wanted person to leave the country
• Arranging a false alibi
• Threatening or bribing jury members

28

The act of receiving requires the satisfaction of three elements, what are they?

• There must be property which has been stolen or has been obtained by a crime
• The accused must have ‘received’ that property , which requires that the receiving must be from another (you cannot receive from yourself)
• The accused must receive that property in the knowledge that it has been stolen or illegally obtained, or being reckless as to that possibility

29

When is the act of receiving complete?

The act of receiving any property stolen or obtained by any other crime 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.

30

What is control over property in relation to receiving?

Control over property may still be exercised by a receiver when the property is in the possession of the receiver’s agent or servant – control must be intentional.