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Conspiracy section and penalty

Section 310 CA 61

offence > 7 years = 7 years
any other case = same penalty


Four elements of conspiracy that the crown must prove

- two or more people were involved
- An agreement was made
- The agreement was to commit an offence
- At the time of the agreement there intention was to commit the offence


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

intent - agreement = no conspiracy


give an example of an omission or failure to act

A security guard deliberately fails to lock a door that he would normally secure (the omission), with the aim being that his associates gain entry to commit a burglary (the offence).


When is a conspiracy complete

When the agreement is made with the required intent.


R V Sanders

“A conspiracy does not end with the making of the agreement. The conspiratorial agreement continues in the 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.”


In a conspiracy does the offence have to be planned?

No, A simple verbal agreement will suffice and there is no need for them to have made a decision on how they will actually commit the offence.




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.


Can you conspire with your spouse or civil union partner



Section + definition

Section 72 CA 61
Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object, is guilty of an attempt to commit the offence


Outline the three elements that must apply for an attempt conviction to succed

- Intent to commit an offence
- Act, they did or omitted to do something to achieve that end
- Proximity - that their act or omission was sufficiently close




In this case 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 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.




(sufficient proximity to completing the full offence)

“[The Court may] have regard to the conduct viewed cumulatively up to the point when the conduct in question stops ... the defendant’s conduct [may] be considered in its entirety. Considering how much remains to be done ... is always relevant, though not determinative.”


The test for proximity


- 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?


Can a person be charged with attempts where it is legally possible but physically impossible to commit the offence?

Yes, so long as the offender has the necessary intention and performs the necessary act


HIGGINS v Police


Where plants being cultivated as cannabis are not in fact cannabis it is physically, not legally, impossible to cultivate such prohibited plants. Accordingly, it is possible to commit the offence of attempting to cultivate cannabis.


Police v Jay


A man bought hedge clippings believing they were cannabis.


R V Donnelly


(legally impossible)

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.


outline the three occasions where the accused has no defence due to changing their mind or making voluntary withdrawal after committing an act sufficiently proximate to the full offence

- were prevented by some outside agent from doing something that was necessary to complete the offence; eg interruption from police
- failed to complete the full offence due to ineptitude, inefficiency or insufficient means, eg insufficient explosive to blow apart a safe
- were prevented from committing the offence because an intervening event made it physically impossible, eg removal of property before intended theft.


Outline the functions of the judge and jury in relation to attempts

The judge must decide whether the accused had left the preparation stage and was already trying to effect completion of the full offence. (proximity is a question of law)

The jury must then decide whether the facts presented by the Crown have been proved beyond reasonable doubt and, if so, must next decide whether the defendant’s acts are close enough to the full offence.


Party to an offence
section + defenition

Section 66, CA 61
(1) Every one 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.

(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.


Describe the difference between a principal offender and a secondary offender

( Parties)

A person will be a principal offender, and liable under s66(1)(a), where he or she personally satisfies the actus reus and mens rea requirements of the offence.

Secondary parties are those people whose assistance, abetment, incitement, counselling or procurement is sufficient under s66(1)(b), (c) or (d) of the Crimes Act 1961 to make them also liable due to their participation in the offence committed by the principal(s). This is despite the fact that the secondary party does not themselves commit that offence.




A party must intentionally help or encourage – it is insufficient if they were reckless as to whether the principal was assisted or encouraged.


R v Renata


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 by s66(1).


To be considered as a party to an offence when must 'participation' have occurred

To be considered a party to the offence, participation must have occurred before or during (contemporaneous with) the commission of the offence and before the completion of the offence.


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.


ASHTON v Police


An example of a secondary party owing a legal duty to a third person or to the general public is a person teaching another person to drive. That person is, in New Zealand, under a legal duty to take reasonable precautions, because under s156 of the Crimes Act 1961 he is deemed to be in charge of a dangerous thing.




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.


R V Betts & 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 used.


What three must you prove when charging as a party to an offence

• the identity of the defendant, and
• an offence has been successfully committed, and
• the elements of the offence (s66(1)) have been satisfied.