REVISION Flashcards
(127 cards)
What is a Principal in the first degree?
1) Where the person who is the ‘ACTUAL PERPETRATOR’ or the most IMMEDIATE CAUSE of the offence, or
2) ‘INNOCENT AGENTS’ (Innocent agent performs actus reds with no mens rea): principle is constructively present through agent, or
3) ‘JOINT CRIMINAL ENTERPRISE’ - Joint principals: 2 or more persons carry out a joint criminal enterprise.
What is a Joint Criminal Enterprise ?
2 or more persons reach an agreement or understanding that results in an agreement between them to commit a crime.
They will be both joint principals in the first degree if each of the participants commits at lease one element of the foundational crime.
Note: It may also occur when the co-accused simply encourages the accused. Principle in second degree. -Applies when the charge laid differs to the offence agreed upon.
What is a principal in the second degree?
Offenders will be principals in the second degree either:
1) By offering encouragement/assistance, or
2) Are involved via a common purpose
S 345 of the Crimes Act 1900 - Both are liable to the same punishment as principals in first degree.
Encouragement/assistance: it must be established that the accused intended to give encouragement - mere presence is NOT enough.
What is common purpose?
1) Joint criminal enterprise to commit a foundational crime
2) Participation in the foundational crime
3) An incidental crime is committed outside of the foundational crime that is within contemplation of the accused.
We apply the contemplation test regarding point 3) to identify if a co-accused is liable for the incidental crime committed by another.
The contemplation test asks whether the accused could have foreseen the incidental crime committed arising out of the planned enterprise.
What is BAINBRIDGE TEST.
The BAINBRIDGE TEST forms the basis for the CONTEMPLATION TEST;
A test on the balance of probabilities that the accused could have foreseen the co-accused incidental actions whilst committing the crime in a Joint Criminal Enterprise. It should be applied to determine the accused person’s criminal liability to those incidental actions of the co-accused.
What is an Accessory before the fact?
They are absent at the time of the actual crime is committed but are the masterminds behind it. They arrange and command it. The people that execute the crime on behalf of the accessory before the fact do so with full knowledge of the crime, they are principals.
S 346 of the Crimes Act 1900 - Accessories before the fact are treated the same was as principals in terms of punishment.
What is an accessory after the fact?
They are aware of the TYPE of offence that has been committed and they offer the principals comfort or assistance after it has been committed.
E.g. Getaway driver
S 347 of the Crimes Act 1900
What is ‘in company’ and what are some examples of ‘in company offences’?
1) Similar test to principle in second degree;
- By offering encouragement/assistance, or
- Are involved via a common purpose
‘Could the offender readily come to the aid of his co-offender if required?’
In company offences examples include:
61J - Sexual assault in company.
97 - Robbery in company.
112 (2) Aggravated break, enter and commit serious indictable offence, in company of other persons.
Provide three case law references and their short summary with regards to what is ‘In Company?’
1) Queen -v- JOYCE: Mere presence of a person IS NOT SUFFICIENT. Being ‘physically present’ is not enough.
2) R -v- BROUGHAM: Where the victim is aware and is confronted by the combined strength of two or more persons - this maybe enough even if not all intended to participate.
- ‘Could the offender readily come to the aid of his co-offender if required?’
3) R v BUTTON and R v GRIFFEN: ‘There must be such proximity as would enable the inference that those individuals in the group were doing something either to embolden or reassure the offender in committing the crime.
What is an attempt?
- An attempt to commit a crime is an ACT DONE (Actus Reus),
- With the INTENT TO COMMIT THAT CRIME (Mens Rea),
- Which forms part of a SERIES OF ACTS which would constitute its actual commission if it were not interrupted.
What is the mens rea for an attempt?
The accused must have the mens rea to commit the SUBSTANTIVE OFFENCE.
For prosecution regarding an attempt offence to succeed, the offence with which the defendant is charge must be a CRIME OF SPECIFIC INTENT.
Note: Lesser intent such as recklessness or negligence will not suffice. There must be evidence converting the fact the accused had intention to complete the substantive offence.
With reference to R -V- EAGLETON, what is the actus reus required for an attempt?
“R -V- EAGLETON: “Acts remotely leading towards the commission of the offence are not to be considered as attempts to commit it, but acts immediately connected with it are.”
Summarise the EAGLTON case?
The acts comprising an attempt must be PROXIMATE with the offence. If the accused was not interrupted they would have committed the offence. On the THRESHOLD OF COMMITTING THE OFFENCE.
What are the two aspects you need to consider whether you have established proximity?
-Is there act of PREPARATION? Acts of preparation by themselves are NOT ENOUGH
(PRE-PAR-ATION)
-Is there an act of PERPETRATION? - Only acts of prepetration will amount to proximity required for an attempt, these acts cannot reasonably be regarded as having any other purpose than the commission of that specific crime.
(PER-PET-RATION)
Can you charge if something is impossible to attempt?
Yes.
- But, it must amount to an offence at law.
- You can charge for something that is factual impossible but the mens rea was still to commit an offence at law.
What are the 6 stages in the Timeline for a Crime?
1) Plan
2) Incitement
3) Conspiracy
4) Attempt
5) Commit offence
6) Conceal offence
What are the 6 explanations for each stage of the Timeline for a Crime? (The explanations for each stage)
1) An individual who merely thinks about committing an offence has not commit a crime as no actus reus has occured. (PLAN)
2) An individual who approaches another and suggests committing an offence may be guilty of common law or statutory incitement. (INCITEMENT)
3) If both parties (2 or more) then agree to commit an unlawful act, in which all intended to participate then they maybe guilty of a conspiracy. (CONSPIRACY)
4) If the individual or other participants in the conspiracy then carry out unlawful acts which are close to committing the crime in its entirety then they or the individual maybe guilty of an attempt. (ATTEMPT)
5) When all elements of the actual offence are committed by the parties (Or an individual) it will move from being an attempt to the commission of the complete crime. (COMMIT OFFENCE)
6) Post even acts may also constitute a crime. (CONCEAL OFFENCE)
What is a conspiracy?
CONSPIRACY: The existence of an agreement between two or more persons to commit an unlawful act with the intention of carrying it out.
- EXISTENCE : Proof that there was an agreement by 2 or more people.
- NATURE: Proof is required that the agreement was to commit a particular unlawful act.
- INTENTION TO PARTICIPATE: Proof that at the time the defendant agreed to participant in the act, the defendant intended to so participate.
With regards to a conspiracy, what are;
1) EXISTENCE + NATURE
2) INTENTION TO PARTICIPATE
1) EXISTENCE and NATURE = The actus reus of a conspiracy.
2) INTENTION TO PARTICIPATE = The mens rea of a conspiracy.
How do you prove a conspiracy?
We need to prove the 3 elements (EXISTENCE, NATURE and INTENTION) of a conspiracy based on;
A) Direct evidence - Of the AGREEMENT in the PLANNING STAGE.
(Examples include admissions, informants, covertly recorded conversations and plans.)
B) Circumstantial evidence - Evidence of any act or
conversation during a later stage that infers the earlier AGREEMENT took place - OVERT ACTS.
What are overt acts?
1) Things said and done in preparation for the object of the agreement.
2) The actual commission of the object of the agreement.
What is the co-conspirators rule?
It can be used circumstantially to prove the PARTICIPATION of an accused in the conspiracy.
S87 (1)(c) Evidence Act
The co-conspirators’ rule is an evidentiary rule. Conduct or words used by other members of a conspiracy that implicate the accused as a member of the conspiracy, to be used as evidence that the defendant was a participant in the conspiracy, even if he or she wasn’t present when they were said.
What is Crabbs case?
Crabbs case is the common law precedent test for recklessness in regards to murder.
The High Court of Australia ruled that to be guilty of murder, the defendant can be reckless in that they did the act knowing it was probable (meaning a substantial or real chance) that death or grievous bodily harm would occur as a result of their actions. Not just possible; must be probable or higher.
What’s required to satisfy the co-conspirators rule?
87 (1)(c) Evidence Act
1) A PRIMA FACIE case; independent of the acts and declarations of the other co-conspirators, that the defendant was a participant.
2) Any OVERT ACTS done by the other co-conspirators in furtherance of the conspiracy are to be regarded as acts done by the accused. (common purpose) even if he wasn’t present when these overt acts occurred