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48 Cards in this Set

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s 72 Crimes Act 1961

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

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

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

s 311 Crimes Act 1961

- S 311 is the provision forpunishment for situations within s 72 where punishments have not already beenoutlined in legislation. Those guilty under s 311 are liable to one half of themax punishment for the completed offence.

R v Harpur


- leading case

- Harpur had an online relationship, eventually bragging of his exploits with inappropriate material in relation to children she got scared, contacted police.

- police set up H making up two fake kids

- pleaded not guilty to offences in relation to children, as they weren't real.

- HELD: H's actions were more than preparation = conviction

- if not would've suggested police would have to introduce real children

- real or substantial step - is compatible but not necessary

Mens Rea

- themost important element of a criminal attempt is the mens rea because the actusreus in the case of an attempt may not be obviously criminal in nature and thecriminal nature of the offence may lie solely in the intent.

R v L

- L was a49 yo woman who was found guilty of attempted sexual violation of a 15 yo boy


Crownhad to prove:

(1) L tried to penetrate herself with D’s penis

(2)that D did not consent to the intended penetration

(3)that L did not believe on reasonable grounds that the complainant consented tothe intended penetration

(4) That D had taken action that furthered her object from preparation to attempt

Actus Reus

- determines when acts done by the accused in pursuit of an intention are sufficiently related to the envisaged crime to warrant criminal liability

- must show that criminal intent has been accompanied by an act or omission which is immediately or proximately connected with the intended offence

- it is not sufficient to prove activity which is only preparation for the commission of the offence

R v Barker

- Actus reus: Words

- D gave a boy a note and asked him to meet him that evening to have some 'fun'. He followed up with more notes.

- Boy went to police, and they went to the place where the man had planned to meet the boy.

- his intention was clear, and words were sufficient evidence of this intention and can be regarded as an 'act'

- thus furthering conduct from preparation to an attempt

R v Yelds

- Actus reus: Words

- D charged with carnal knowledge of underage girls.

- He had offered girls money to take him to a place and had made indecent remarks to one of them.

- HELD: his intention was clear, and by his words and offers of money he had done an act towards achieving his object.

R v Rowley

- D left notes around town to lure boys for immoral purposes

- HELD: this was only enough to constitute preparation, as D did not go further to seek these people

R v Willoughby

- Actus Reus: Possession


- D met a woman to get heroin off her

- D did not take it because he thought it was the wrong amount

- was charged with attempted possession

- HELD there can be an attempt to be in possession, provided there is intent to be in possession

R v Nichols

- Actus Reus: Possession

- D caught trying to bring reptiles into NZ

- charged with attempting to possess unauthorised goods

- argued he had possession so could not be charged with an attempt

- HELD valid attempt

- His acts were an attempt because he was trying to bring them into NZ.

- attempting to bring about a state of affairs can be an attempt


- s72(1) refers to acts or omissions.

- Usually cases consider acts, rather than omissions.

- there must be circumstances where there is a duty to act, and a failure to do so with intent to accomplish an offence

Acts not done "for the purpose of accomplishing his object"

- Actions which are NOT done "for the purpose of accomplishing his object" will NOT constitute 'attempts' under s72. I.e. acts of mere preparation will be too remote. Must distinguish preparation from execution.

R v Eagleton - "Immediate connection"

- "The last act" / "immediate connection" test:"

- 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"

- Accused was charged with attempting to obtain money fraudulently. He was caught before getting money, but had taken ALL steps towards doing so.

- HELD: he had done ALL acts within his control, these were immediately connected with the offence, so it was a clear attempt

- sufficient but not necessary

DPP v Stonehouse - "crossing the rubicon"

- The point of no return test

- English MP took out a number of life insurance policies, and then disappeared. He then fabricated his own death, and was discovered in Australia, before insurance money was paid out. - Charged with attempt to obtain property by deception.

- HELD that he had done everything possible to complete the act, he had "crossed the rubicon" - past the point of no return.

- valid attempt.

Henderson v R - "Commencing to put intention into execution"

- D planned a robbery, got close to the bank, saw police and ran away.

- HELD that all they had done was get themselves to the location, but had NOT taken any step in the commission of the crime itself.

- is a sufficient but not necessary condition of attempts liability

Police v Wylie

- NZ TEST: Common sense approach

- Court said there was no abstract test, it was a matter of common sense in each case.
- Offence was attempting to procure cocaine.

- Police executed a search warrant, and while they were there a phone rang and a person said they wanted to come pick up some drugs.

- The buyer showed up, and police were in disguise.

- Negotiations made between cops and buyer about price of drugs. No sale was made.

- Buyer charged with attempt to procure cocaine.

- HELD: his real steps of calling, going to property etc were enough for an attempt.

R v B

- Common law test for proximity:


- D obtained a knife, sharpened it, tied up his intended victim and told her he would kill her, but did not.

- words were important

- Here, SUBSTANTIAL steps had been taken with the INTENT to commit murder.

- HELD: the stage of tying her up was where the D took a real and substantial step

- guilty of attempt

Johnston v R

- followed Harpur

- cumulative approach

- man found lurking in garden of family home in which young girl slept in sleep out

- He was charged with attempted rape.

- He argued that he was intending to carry out a robbery.

- Jury could use propensity in this instance to form mens rea

HELD: the court said a more remote actus reus will be accepted IF THE INTENT IS CLEAR- In other words, it is the conduct as a whole, in conjunction with mens rea that will be taken into account to consider if there is an attempt.

R v Page

- Withdrawal from attempt

- Accused got to the point of inserting a lever in to prise a window open in a burglary.

- He then changed his mind and withdrew before opening it.

- HELD: that this was too late - he had attempted the offence.

- You CANNOT WITHDRAW ONCE YOU HAVE COMPLETED THE ATTEMPT. (but, if you change your mind during the mere preparatory stages, you will NOT be liable).

R v Ring


- attempting to commit a crime that is impossible to commit.

- Pickpocket puts his hand into victim's pocket, with intent to steal.

- There was nothing in the pocket, so he could not have stolen anything.

- It is only a factual bar that stops the offence from being completed

- HELD: accused was guilty of attempted theft, even though in fact this was impossible to complete.

- factual impossibility will not be a bar to conviction

- Parl favoured this appraoch in creating s72(1)

R v Shivpuri


- Charged with attempt of harbouring heroin.

- He was carrying powder he though was heroin, but in fact it was not.

- HELD: still liable for attempt.

- R v Austin - noxious abortion

- Police v Jay - hedge clippings - weed

Factual vs Legal impossibility

- if it is FACTUALLY impossible to commit the offence, this does NOT prevent the accused from being liable for an ATTEMPT.

- you CANNOT be guilty of an offence if it was LEGALLY impossible to complete it.

- this could be subject to change - following the Canadian decision US v Dynar.

R v Donnelly


- Person charged with attempting to receive stolen property.

- He went to uplift the stolen property that was there.

- The police had already recovered these goods, meaning that they were no longer classed as "stolen".

- He was charged with an attempt to receive stolen property.

- Legal impossibility: it was legally impossible for him to complete the offence

- HELD: D can't be liable for an attempt when it is legally impossible to complete the offence.

- s72(1) does not apply here

US v Dynar

- FBI set up money laundering

- D thought it was laundered money, but it wasn't thus the offence was legally impossible.

- Legal v Factual impossibility

- HELD: there is no tenable distinction between legal and factual impossibility. IN both attempts and conspiracy, there should NOT be a defence of legal impossibility.

- Most jurisdictions are getting rid of the legal impossibility defence - but no NZ authority on this.


- Where two or more people conspire together to commit a crime.

- if two or more people commit to an agreed course of conduct to commit an offence, then this conspiring itself will be an offence.

s 310 Crimes Act 1961

- Conspiring to commit offence.

(1) Subject to the provisions of subsection

(2), every one whoconspires with any person to commit any offence, or to do or omit, in any partof the world, anything of which the doing or omission in New Zealand would bean offence, is liable to imprisonment for a term not exceeding 7 years if the maximumpunishment for that offence exceeds 7 years' imprisonment, and in any othercase is liable to the same punishment as if he had committed that offence.

(2) This section shall not apply where apunishment for the conspiracy is otherwise expressly prescribed by this Act orby some other enactment.

(3) Where under this section any one ischarged with conspiring to do or omit anything anywhere outside New Zealand, itis a defence to prove that the doing or omission of the act to which theconspiracy relates was not an offence under the law of the place where it was,or was to be, done or omitted.

- SO, it is an offence to be plotting in NZ to commit an offence elsewhere, unless that act is not an offence in the other country, in which case this defence (3) can be raised.


Kamara v DPP

- Completion of a conspiracy

- “ …the actus reus in a conspiracy is the agreement to execute the illegal conduct,and not the execution of it. The crime is complete when the agreement is made.”

- occurs when the agreement is made

- doesn't end until it falls apart, or common purpose is executed

R v Johnston

- Completion of a conspiracy

- The accused, while living in England, before returning to NZ, arranged for friends to send him drugs for when he got back to NZ.

- jurisdiction?

- HELD: the conspiracy was continuing until he arrived in NZ

- "...though the offence of conspiracy is complete when the agreement to do the unlawful thing is made, a conspiracy does NOT end with the making of the agreement....

- it 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"

s7 Crimes Act 1961

- Jurisdiction

- "..whereany act or omission forming part of any offence, or any event necessary to thecompletion of any offence, occurs in New Zealand, the offence shall be deemedto be committed in New Zealand."

R v Poynter

- Jurisdiction

- An Actof Parliament should not be held to have extraterritorial effect unless thateffect is signalled by express language or by necessary implication.

- Generally, in NZ there would be no jurisdiction over a conspirator who enters the conspiracy overseas, and never enters NZ.

R v Richards

- If the agreement constitutes the object crime itself, or is simultaneous with it, there can't be conspiracy.

- Conspiracy must come before the crime itself, about something to be done in the future.

- passive agreement is not enough

R v Janis

++ Elements of a conspiracy

- Parties were charged with conspiring to obtain and sell paua unlawfully.

- HELD: at the core of conspiracy is an agreement or consensus between two or more people, to commit an offence.

++ Actus Reus

- This is the acts, words or gestures by which the conspirators indicate their agreement.

- Subsequent acts are not part of the actus reus of conspiracy, but they can provide evidence of conspiracy by showing what it is that the parties agreed to.

- can be an agreement to act, or not to act

++ Mens Rea

- there has to be an intention to enter the agreement and carry out the plot

- they have to have knowledge of the circumstances

R v Gemmel

++Elements of a conspiracy

- Any charge of conspiracy laid has to specify the particular crime that is planned.

- have to show an agreement to commit a crime, and specify what that crime is.

- Parties charged with conspiring to commit an aggravated robbery of a post office.

- G said that he and his associates had discussed the robbery, but when G was told the others planned to use a gun, he said he would not take part.

- G then drove them to the scene and left them to carry out the robbery.

- G claimed he did not know they had a gun.

- HELD: to convict parties of a conpiracy, they must all have directed their minds to the single conspiracy that was charged

- There must be common intention.

- G had not agreed to the use of a gun, so he could not have been part of the conspiracy.

- conviction quashed

- approved mulcahy

++ Distinction between conspiracy and s66

- HELD: they are separate offences with different elements.

- It is possible to aid/abet for purposes of s66(1) without being a party to agreement to commit the crime.

- s66(2) refers to probable consequences of the intended crime, which is different from the agreement required for conspiracy.

++ Mens Rea

- D must intend to be a party to an agreement to commit the specific offence to which the conspiracy is directed

++ Scope of the agreement

- An apparent agreement or mere negotiation is NOT enough for conspiracy. Must be actual agreement with intention to commit the crime.

R v Greenfield

- Elements of a conspiracy

- A conspiracy is complete when agreement is made.

- D agreed with a friend that he would send drugs to NZ from europe, set up postal addresses to send it to, before leaving.

- She agreed to help by sending normal mail to these addresses after he sent the ecstacy.

- She was charged with being a party to a conspiracy to import ecstacy.

- She argued that she sent the ordinary mail after the ecstacy had been posted, so she could not conspire to commit an offence that had already happened.

- HELD: the agreement to assist was made with the initial phonecall. This made the offence of conspiracy complete.

- the offence turns on the agreement itself, doesn't need any further involvement with the crime itself.

Actus Reus of a Conspiracy

- the agreement to execute the illegal conduct, not the execution of it.

- crime is complete when the agreement is made

- must enter into an agreement with a common design

"Wheels and Chains"

- communication between parties, in which not all parties communicate directly with eachother

- Wheel:

+ A and B in the centre of the wheel conspire to commit a crime, then communicate with C and D on the outer edge of the wheel so that they all become party to common crime.

+ C does not need to communicate with D to be a party to the conspiracy.

- Chain:

+A communicates with B, C and D, who might not communicate amongst themselves, but provided they are all conspiring to same plan they are all be parties to the conspiracy.

R v Meyrick

Communications between parties:

- Conspiracy to unlawfully sell liquor, and bribing policemen

- wasn't necessary for all conspirators to directly communicate provided that they were all in on the same plan.

- the criminal design must be common to all.

R v Ardalan

Communication between parties:

- it is essential that the jury is convinced that each person charged has conspired with another person in relation to that particular conspiracy

- the conspiracy charge must be specific

Gerakiteys v R

Communication between parties:

- It is possible to have more than one conspiracy, and if so the charges must reflect this.

- Doctor and insurance agent conspired by setting up a scheme for the clients to take out health insurance, and then doctor would sign forms saying clients were sick, so they could claim insurance from their individual insurance companies.

- Clients were also charged with the same conspiracy.

- where this occurs individuals are subject only to the conspiracies they agreed to

- where a single conspiracy has been charged, it is not open for the jury to find the accused guilty of a consequential but different conspiracy, which flowed from the first charge.

R v Beazley

- D charged with conspiracy to produce meth

- Crown alleged a chain conspiracy 10 people

- BUT no evidence to show a common plan to sell drugs.

- HELD: D could not be a party to the conspiracy

- can't generalise a conspiracy to bring a wide range of people in to it

Scope of agreement:

- knowing that someone might commit an offence is not enough

R v Lang

Internal conspiracy

- D conspired to get ecstacy for herself

- statute excluded this with the wording 'another person'

- judge didn't exclude that it wasn't possible for an internal conspiracy to occur

- concern about decision - does not make sense that D could be guilty of conspiring to supply drugs to 'any other person' when that 'other person' was D herself.

Churchill v Walton

- Mistake of law is no excuse

- Mistake of fact is an excuse: "If, on the facts known to them, what they agreed to do was lawful, they are NOT rendered artificially guilty by the existence of other facts not known to them

- Bookkeeper charged with conspiracy to defraud IRD sold red derv for the price of colourless derv

- but was unaware the higher tax had not been paid

- not guilty

R v LK

- actual knowledge of the facts is necessary, recklessness is not enough

- D charged as a party to conspiracy to money laundering scheme

- Bank account was opened by accused, and it could be used for others to put money into. Accused did not think about where this money was coming from.

- HELD: recklessness in setting up the account was not enough - there must be a common intention to commit a crime

R v Morris

Scope of agreement:

- Mere expectation that someone might commit a crime is not enough to constitute actual agreement

- cocaine selling case

R v Anderson

- 2 prisoners made an agreement that when A got out of prison he would supply B with equipment to break out, BUT he thought it would not work.

- charged with conspiracy and intending to help a prisoner escape

- performed actus reus but didn't have mens rea

- should be convicted as he had intention for his agreed part

- BUT could create absurdities so should not be followed - only good for policy argument

Yip Chiu-Cheung v R

- in undercover agent situations

- Scope of agreement: Passive agreement is not positive agreement.

- A and B conspired to traffic drugs.

- B was an undercover agent. He joined the plan, intended that it should happen in order to trap A.

- Police do not have the power to disregard the law like this, so in many cases the undercover agent has committed conspiracy, but will not be prosecuted.

- HELD: the undercover agent, even though he would not be prosecuted, had still entered the illegal agreement, and therefore the other party could be guilty of conspiracy.

R v Sew Hoy

- brothers had intended to defraud by importing mens clothes labelled as womens clothing to avoid a higher tax rate

- BUT NZ had systems in place to prevent this kind of offending - thus crime was impossible

- there was an agreement and intention to follow through

- impossibility was irrelevant

- convicted