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91 Cards in this Set

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Inchoate offences
They are “inchoate” because they criminalize conduct by D which is incomplete or imperfect, in the sense that it has not resulted in the commission of some particular, substantive offence. Thus, they criminalize the conduct of a person who has the purpose of committing a substantive offence, where his conduct has the potential to culminate in that offence, without the need for the offence to actually occur. The D has the mens rea but doesn’t complete the actus reus.
Section 72 of the Crimes Act:

(1) Every one who, having an intent to commit an offence, does or omits to act for the purpose of accomplishing his 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, 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.
Section 311 of the Crimes Act.
the general provision which punishes attempts and covers every situation falling within s72 where no punishment is otherwise provided for.
Mens Rea
Smith and Hogan, an attempt to commit an offence requires intent but only recklessness in respect of the circumstance. Edward Griew said attempts always require intention. Andrew Ashworth is the leading scholar in criminal law. He prefers the Smith and Hogan view. You don’t need an intention in every respect of the offence and it should sometimes follow.
MR: R v L
(Woman tried to put 15 yr old's penis in her vagina). The SC NZ adopted the prosecutions view of Smith and Hogan and Ashworth. So, in certain crimes the MR can change for an attempt. They couldn’t raise the level of intention because the individual made an attempt with the requisite MR of an offence and the court didn’t want to acquit and the D failed to commit an offence. This case has been criticized for not providing clear reasons and doesn’t make a distinction between result elements and circumstance elements.
See Fran Wright, ‘Reckless Attempts Revisited’
However, the Court’s explanation of its decision in R v L and attempts is incomplete. The issue in R v L was one which has been the subject of much academic debate and it is surprising that there was no explicit reference to that.

The failure to elaborate on underlying principles also reduces the value of the decision in resolving similar problems if they arise with other attempt offences.

It is to be hoped that a more principles-based approach to the mental element in attempt will be developed if the issue comes before the Supreme Court again; without it, there will be continuing doubt about the wider impact of R v L.
Actus Reus
Various modes in which the actus reus of an attempt may be performed:

1. Actions not done “for the purpose of accomplishing his object”

2. Possession
3. Omissions
4. Words
Words can be used as a means of accomplishing the offence and indicating a criminal attempt. The courts distinguish between words which are mere propositions and at worst preparation for an attempt and words which are constitutive of an attempt. s72 Crimes Act states you can attempt with words.
Words: R v Barker
A letter was delivered to a 16 year old boy inviting the boy to meet in the park for “some good fun.” Salmon J observed that certain types of crimes may be attempted by words so long as they clearly express the D’s criminal purpose and they express the means or part of the means for achieving that purpose. In this case, the letter is part of the means for achieving that purpose and the court found the letter was sufficient for attempted sodomy based on the close proximity to the execution of the offence and the D’s ability to control the events had the invitation been accepted.
R v Yelds
The accused words to a girl were “you are getting a big girl now. Have you got hair growing there?” , together with evidence that he accosted the child and tried to attempt her to accompany him to a park, to be evidence of an attempt. The words provide a link to achieving the offence.
R v Rowley
R left notes in public places designed to allure young boys for immoral purposes but he succeeded on appeal against conviction on public indecency because the notes didn’t specify any particular behavior and went no further then setting up a meeting.
One can commit a crime through possession. The issue is that you are attempting to gain possession (example: you are walking towards a bag full of marijuana).

R v Willoughby
Someone trying to purchase heroin could be convicted of attempting to purchase the drug.
R v Nichols
This was an attempted violation of the Biosecurity Act where a person attempted to move a prohibited substance and was convicted under those circumstances.
s72 allows for attempt based on omission by D as opposed to a positive act. It follows that where D deliberately omits to perform a legal duty but fails to bring about the (intended) consequence specified in the principal offence, the failure may constitute an offence. For example, you have a duty to provide the necessaries of life and omit to provide to them but partner feeds them you might be guilty of attempted homicide: attempt by omission.
Actions not done “for the purpose of accomplishing his object”
In order to establish the AR of an attempted crime, there must be an act (or omission) by D which is done for the purpose of committing that offence. Unrelated actions, even actions coincidentally proximate to execution of the intended consequence do not count.
The threshold problem: distinguishing preparation from execution
Has the D crossed the threshold from preparation into execution? Example of breaking window: when the individual reaches for the stone and picks up, is this far enough to constitute an attempt or is it still in the preparation stages which is not criminal. At what point do the police legitimately have a right to intervene?
The Common Law tests for proximity:
The tests are attempts by judges to define an indeterminate line between what is not criminal as opposed to what is criminal. It is important to find a balance between criminal and non criminal behavior. To set the threshold too high means people may become dangerously close to achieving their object but to set it too low could penalize those who have not proceeded much further than unexpected thoughts.
R v Eagleton
Parke B held:
‘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… ‘
The “series of acts” test
Stephen (English Criminal lawyer): ‘An attempt to commit a crime is an act done with intent to commit that crime, and forming part of a series of acts which would constitute its actual commission if it were not interrupted.’
‘Last act’ or ‘final stage’ theories
The accused commits an attempt when he does the last act necessary to be done, or has set in motion physical or human factors within the normal course of events would result in an offence without him doing anything further. The act occurs when the D completes the last act which is to set into motion the events that will be committed to commit an offence.
‘Last act’ or ‘final stage’ theories

R v Ilyas
The D falsely reported that his car was stolen and had obtained but didn’t complete the insurance claim form (attempted deception). The English CA held that the appellant had not done every act which was necessary in order to achieve the result intended, and his conduct was merely preparatory and too remote from the contemplated offence. The threshold occurs very late.
‘Last act’ or ‘final stage’ theories

R v Linneker
This case exposes the weakness of the theory. The D pulled a loaded revolver from pocket with a clear intention to shoot but his arm was grabbed to prevent him from doing so. If you rely on the last act test then this wouldn’t be an attempt because he would still need to pull the trigger and hadn’t completed the last act of grievous bodily harm (gbh). The test leaves it to a late stage before the individual commits an attempt and leaves to a late stage before the police will intervene.
The “Rubicon” test
To cross the Rubicon (point of no return) is to do something that commits you to a particular course of action.
The “Rubicon” test

DPP v Stonehouse
Lord Diplock
[The D must indicate] a ‘fixed irrevocable intention to go on to commit the complete offence unless involuntarily prevented from doing so … In other words, the offender must have crossed the Rubicon and burnt his boats.’
The “equivocality” test

R v Barker
Salmond J
[The D’s acts] ‘must be sufficient in themselves to declare and proclaim the guilty purpose with which they are done’.
s72(3) of the Act provides that
‘[a]n 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.’
The “commencement of execution” test.
Current NZ law is a variation of the “commencement of execution” test. This is the notion they must have commenced execution in order for there to be an attempt. S72(1) spells out there must be a clear intent to commit the offence and states what the proximity is. S72(2) states it is a question of law or for the judge and not jury to decide if the action is too remote. S72(3) “immediately” or “proximately” connected with the offence.
The current NZ law
s72(3) [an act done that] is ‘immediately and proximately connected with the intended offence’
The current NZ law
Police v Wylie
CA had to decide whether a D who had inspected a drug (cocaine) but not yet agreed on a price made an offer. Had he attempted to procure cocaine? The court held the current approach to proximity requires the court to ask whether the act or omission in question constitutes a “real and practical step” towards the commission of the offence. On those facts, common sense would indicate he had taken a real and practical step. This test replaced the unequivocal test in NZ law.
The current NZ law
R v B
(rapes & threatens to kill wife) Willie Young J examined what is a real and practical step and states it should be a “real and substantial” step. He complained about the indeterminacy of the test. He glosses the test with substantial which indicates a notion of concreteness.

The court held the tying up was the real and substantial step in Willie Young’s judgment. It is for the judge to decide what a real and substantial step is because it is a question of law.
The current NZ law
R v Wilcox
(attempt to rob post office, has air riffles, mask and on way when arrested) S&B regard as the leading case of attempts. The CA rejected the adding up theory or cumulative approach. They focused on how close W came to execution. In their view the purchasing of the ski masks, arrangement of a lift, etc. couldn’t be added together to constitute an attempt. He was only getting himself into position which was not enough and was merely an act of preparation. They quoted Henderson
Henderson v R
‘I do not believe that it can be held that the mere fact of going to the place where the contemplated crime is to be committed constitutes an attempt. There must be a closer relation between the victim and the author of the crime; there must be an act done which displays not only a preparation for an attempt, but a commencement of execution, a step in the commission of the actual crime itself.’
S&B suggest that the law in NZ following Wilcox requires two tests:
1. Had they done more than merely get themselves into position?
2. They must have taken a step in the commencement of the execution of the crime itself or the offence.
R v Burrett
Individuals who planned to kidnap a businessman and dug a hole to put the man into with a tube for air and kidnapping was discovered before it took place. Judge in Burrett said in if had been open to him and he would have taken a more flexible approach than CA taken in Wilcox, but felt he was bound by Wilcox and would have added all the preparatory steps together to consider them an attempt.
Inadequacy of the proximity theory
Tests for attempts are “awkwardly indeterminate” according to Willie Young J.
S and B’s dangerous proximity test
They criticize the proximity theory because the courts are unwilling to look the conduct of the individual as a whole. They suggest a dangerous proximity test.
George Fletcher’s Rethinking Criminal Law
He discusses the fundamental problems with attempts. We must decide where to draw the line. The values one must take into account are certainty and prevention (allowing police to intervene in order to prevent harm from occurring).
Police v Wylie
At the point at which the prospective purchaser of cocaine was holding the cash in his hands and was proceeding to examine the cocaine with a view to its purchase, it could be said he was “dangerously close” to achieving his object
R v Campbell
The case illustrates the strength of the S&B dangerous proximity test. The accused was in possession of an imitation firearm, was arrested just before entering a post office that he intended to rob. His conviction for attempted robbery was quashed on the basis that, although he was close to committing the robbery he wasn’t yet in a position to carry out the offence. He has to go to the counter and make some hostile gesture which says give me money or I will shoot. S&B argue that C manifests danger and we would assess the steps he has taken and argued the point has been reached where one could justify intervention. He has dangerous proximity to completing the offence.
Once the threshold from preparation to attempt is crossed, the attempt is committed and cannot be undone (it is impossible to withdraw). You may withdraw during the course of preparation and simply decide not to proceed and you wouldn’t commit an offence.

R v Page
The D inserted tire lever under a window in order to break the window but changed his mind before he lifted the window and he was held to have crossed the line. NZ law would hold he has he taken a “real and substantial” step.

R v Ring
A pickpocket put his hand into a pocket thinking there was a purse there but there was none. He cannot commit the crime and it is factually impossible. Factual impossibility is not a bar to attempt and is specified in statute s72(1) which states, “whether in the circumstances it was possible to commit the offence or not.”
R v Shivpuri
S thought he was importing heroin when in fact it was a harmless substance. He was convicted of attempting to deal in a prohibited drug.
Factual impossibility
In NZ s72(1) factual impossibility is not a bar to conviction.
Factual impossibility
R v Austin
CA held that an attempt to supply a noxious substance knowing it would induce a miscarriage (crime) and even though substance not noxious was still an attempt.
Factual impossibility
Police v Jay
An attempt to receive cannabis where the cannabis is only hedge clippings was held to still be an attempt to receive cannabis.
Legal Impossibility
NZ law still recognizes a distinction between “legal” and “factual” impossibility.
R v Donnelly
Involves legal impossibility of a crime that does exist and the D was charged with attempted receiving. He presented a ticket to at the luggage office believing that when he did so he would be given stolen property but the property had already been returned to their rightful owner. s261 of the CA made it clear it was not an offence to receive property that had been restored to its owner. CA majority held he couldn’t be convicted of receiving and couldn’t be convicted of attempted receiving. They took the view that he was intending to do something that wasn’t an offence.
US v Dynar
Take same position as above. If you attempt to commit an offence which exists in Canadian law even if you factually cannot commit it then you can be convicted because of the potential danger you pose to society.

Boister thinks Donelly’s days are numbered.
Imaginary crimes
You cannot be convicted of attempting to commit an imaginary crime. Example: think adultery is a crime but can’t be convicted because it is not
Attempts to conspire?
R v Dery
Can you attempt to inspire or incite? In past it was always thought this was too unconnected. Dery suggests that conduct which falls short of a conspiracy to commit a substantive offence may, nevertheless, be prosecuted as an attempt to conspire. Individuals discussed forming a conspiracy and talked about the possibility of theft; stealing road trailers filled with alcohol. The court held it is enough to attempt the crime of conspiracy because they were preparing to agree.
Conspiracy closest offence to violating the principle that you require more than a guilty mind because it is based on an agreement (which is the conduct)
Scope of Conspiracy
S 310 of the Crimes Act‘
(1) … 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 imprisonment …
When is a conspiracy complete?
Because the AR in a conspiracy is an agreement to execute an offence, it is now settled law that a conspiracy is complete when the agreement is made (Kamara v DPP).
When is a conspiracy complete?
R v Johnston
R v Johnston
‘It is well settled that 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. 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.’
When is a conspiracy complete?
S7 Crimes Act
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.
R v Gemmel
NZ approved a definition in the below case.
Mulcahy v R
Below is the classic definition of conspiracy
‘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.
Actus Reus of Conspiracy
The actual physical conduct (AR) is the acts, words or gestures by which the conspirators make their agreement (not the agreement itself). It may be express or entirely implied. It is very difficult to get evidence of an agreement. Usually evidence of an agreement is through inference or what the conspirators have done in pursuit of the offence. Often court cannot tell with precision when the agreement cam into being but must be clear that in some point an agreement came into existence. It is not necessary for the prosecution to establish that the individuals are in direct communication with each other, or that they directly consulted together. It is enough that they entered into an agreement with a common design.
Actus Reus of Conspiracy: Agreement

R v Walker
Individuals had discussed stealing a payroll and conviction quashed because although they were in negotiation and had never reached an agreement.
Actus Reus of Conspiracy: Agreement

R v Parnell
Grose J held:
‘It may be that the alleged conspirators have never seen each other, and have never corresponded, one may never have heard the name of the other, and yet by the law they may be parties to the same common criminal agreement. Thus, in some of the Fenian cases tried in this country, it frequently happened that one of the conspirators was in America, the other in this country; that they had never seen each other, but that there were acts on both sides which led the jury to the inference, and they drew it, that they were engaged in accomplishing the same common object, and when they arrived at this conclusion, the acts of the one became evidence against the other.’
Acts subsequent to agreement but during the continuation of the conspiracy

R v Janis
It has been held that any subsequent acts performed in the commission or attempted commission of the unlawful object are not part of the AR of conspiracy, although they may be evidence from which an inference can be drawn regarding the existence of an illegal agreement. Court held that acts subsequent to the agreement are not part of the actus reus. This seems to contradict Johnston in the CA.
Conspiring with persons unknown
It is possible to charge a conspiracy with persons unknown: courts don’t like it generally speaking (intangible offence becomes even more intangible). There must be evidence that the other identifiable persons do exist.
The wheel conspiracy
The persons at the center form the (hub) who form links (spokes) to the other individual members of the conspiracy, each of whom has no contact with any other conspirator apart from the central persons.
The wheel conspiracy
R v Griffiths

The case involves an attempt to conspire to defraud the government by inducing the state to pay excessive contributions. The farmers agued they didn’t know the other people existed and there couldn’t be a conspiracy. The court allowed the appeal (not enough evidence).
The chain conspiracy
In a chain conspiracy, the overall argument is made by a series of groups of conspirators. Each group includes only some of the people who are members of other groups. They must know there was a common purpose to achieve this unlawful purpose.
Purely internal conspiracies?
There is some authority that an agreement between two people to do particular criminal conduct will not constitute a conspiracy where that activity is for the sole benefit of the alleged conspirators and does not involve 3rd parties.
Purely internal conspiracies?

R v Lang
D telephoned N her alleged co-conspirator (drug supplier) to organize the supply of drugs to herself. D was charged with conspiring to supply to herself. S & B point out that conspiracy is a relational offence. You can be charged with both the offence of conspiracy and the actual offence itself. Henry J said the argument was on its face self contradictory but the court left the question open.
Mens Rea of Conspiracy
There must be an intention to agree coupled with an intention that the requisite course of conduct shall be pursued (a mere expectation or anticipation that the crime will be carried out is insufficient.
R v Gemmel
It was held that, to have the necessary knowledge for conspiracy, a person must know what he is supposed to have agreed to do (but don’t need to know what they are doing is a criminal offence)

Churchill v Walton
‘If what they agreed to do was, on the facts known to them, an unlawful act, they are guilty of conspiracy and cannot excuse themselves by saying that, owing to their ignorance of the law, they did not realise that such an act was a crime. 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, giving a different and criminal quality to the act agreed upon.’
States of mind short of agreement

R v Richards (conspiracy)
Fischer J held the agreement should require the D to assent to something in circumstances if they withheld their assent the withholding of their assent would have some practical consequence. If someone says ok just to agree with the person rather than agree to commit the offence it doesn’t amount to an agreement to commit an offence.
Partial conspiracy?
Gemmel approved Canadian decision on R v O’Brien.The MR is an intention to put the common design in effect. In such a situation there can be no common design where one individual doesn’t intend to carry out and instead calls police. There would be no conspiracy.
R v Anderson
The D agreed with the others to carry out a jail break by providing a diamond cut wire for 20,000 pounds but claimed he had no intention of carrying it out. HL held this didn’t prevent his conviction for conspiracy. On the basis, this avoided the absurdity of individuals who avoid conviction by simply agreeing but claiming they had no intention of carrying out the outcome and are indifferent. Public policy dictated that in elaborate conspiracies involving organized crime it should be no defense that you didn’t intend to carry through the agreement. A had no intention and they considered it an absurdity not to convict.
Yip Chiu-Cheung v R
(Drug importation w/DEA agent)It went to PC. DEA did intend the drugs to be imported and in Anderson, A didn’t intend to break out. PC held there was a conspiracy because he intended to carry the importation through. DEA’s motive is different but has the intention to carry out the importation so DEA was also part of a conspiracy. The existence of motive makes no difference and we are only concerned with a colorless intention. Both parties shared a common intention to carry it out.
Variations in the detail of the conspiracy

R v Broad
The 2 conspirators thought (including B) that they were going to produce cocaine and the other thought they were going to produce heroin. The court held they both intended to produce a Class A drug and there was a conspiracy. Principle: The differences over the content of an agreement between the parties do not vitiate the agreement between them if the variant courses of conduct contemplated by each party will still result in the commission of the same offence.
Co-conspirators may properly be described as parties to a conspiracy.CA held that conspiracy is not the same thing as aiding and abetting, since the two offences have different ingredients.
Impossibility and conspiracy
The law has long recognized that a person may, in some circumstances, still be convicted of conspiring to attempt to commit an offence even though the commission of that offence was impossible.
Factual impossibility

R v Sew Hoy
Trial judge followed English approach and held that because the D’s couldn’t have brought in as woman’s clothes then they couldn’t conspire to do so. The CA reversed the judgment and said the physical impossibility of getting the clothing reclassified didn’t prevent their conviction for conspiracy. They had done all that they intended to do and failed to realize their intention. The agreement itself was considered to be “inimical to the public good” per Hardie Boys J.
DPP v Nock
They accused were charged for conspiring to produce cocaine but it was physically impossible to transform substance into cocaine. They were held not guilty of conspiracy to produce a controlled drug since the performance of the agreement could have never resulted in the commission of the offence. Neil Boister thinks the accused should have been convicted and doesn’t see a real distinction (distinction is artificial).
Incitement is not defined in the CA but penalized in s311(2) of the Crimes Act. If D incites any person to commit any offence which is not in fact committed, she is liable to the same punishment as if she had attempted to commit that offence, except where punishment for that offence is expressly provided by statute.
If you incite and the offence is carried out then you are a secondary party, but if you incite and offence not completed then it is an inchoate offence.
Actus Reus
S v Nkosiyana
S v Nkosiyana
[An incitor is] ‘one who reaches and seeks to influence the mind of another to the commission of a crime. The machinations of criminal ingenuity being legion, the approach to the other’s mind may take various forms, such as suggestion, proposal, request, exhortation, gesture, argument, persuasion, inducement, goading or arousal of cupidity.’
Young v Cassels
Stout CJ: used the words to “rouse, stimulate, urge on and spur” someone to commit an offence. All must take place before the crime is committed (after would be approval).
R v Most
The D published an article encouraging people of the world to follow the example of Russian revolutionaries and murder their Heads of State. It was held to be an incitement to murder.
Communication of the incitement
Must be some form of actual communication a person whom it is intended to incite.
Communication of the incitement

R v Banks
Where communication sent with a view to incite but not received the sender can only be guilty of an attempt to incite. Letter was sent advising niece to kill infant with poison, but was not received.
Renunciation of incitement
R v Gonzague

in Canada the court held that incitement is complete when the it occurs because the essence of incitement lies in D’s seeking to influence the mind of another and it complete when the words have been uttered regardless of their impact on the mind of the audience.
Attempted incitement
An attempt to incite the commission of an offence requires proof of an act which is more than merely preparatory to the commission of the full offence.
Mens Rea
Thus requires two mental elements
1. Knowledge of the circumstances which would make the act of the person incited an offence; and
2. An intention that the person incited should commit the act constituting the offence.
It is clear that situations may and do arise where one person incites, counsels, or attempts to procure another to commit an offence which it is impossible in law or in fact to commit.