Criminal Law Revision Notes

10 October 2016

Proximity test: (R v Eagleton): How close is the accused to committing the final act that constitutes the offence? Substantial step test: Has the accused made substantial progress towards completion of the offence? Consider how much progress has been made and what is left to do. • Unequivocality test: (R v Williams): requires that there be ‘no possible innocent explanation for the accused’s conduct’. (Any conduct which might have an innocent explanation cannot be brought by the prosecution as evidence). A precise test, but considered too restrictive. • Last step test: (R v Chellingworth): Has the accused taken the last step towards the completed offence? Voluntary desistance (s4, par. ): If the accused does most of the acts required to constitute the offence but then stops, it is generally no defence (although may be considered in sentencing). Impossibility (s4, par. 3): • Legal: It is impossible for the accused to commit an offence only where there is no offence at law to capture the defendant’s conduct (e. g. if the defendant mistakenly believes that it is an offence to acquire a certain weapon, but attempts to do so anyway = no offence). BUT, • Factual: if the offender tries to commit an offence but the offence cannot be committed for factual reasons, this is still an attempt: English. eg, the offender tries to import drugs, but the ‘drug’ is talcum powder)’ Conspiracy: [not in exam] • takes place before any preparatory action. (An offender is usually not charged with conspiracy and a completed offence. , so conspiracy is not relevant if an offence is actually committed). • No definition in Code, defined in common law as ‘an agreement between 2 or more persons to achieve a common objective’ (R v Campbell). (note: agreement must be reached. Not sufficient that parties were in communication). • There must be an intention to do all the elements of the offence. There must be a positive intention – recklessness will not suffice. • If there is no agreement, there is no conspiracy – BUT, it is not necessary that all conspirators know one another. • When 2 or more conspirators are charged, the fact that A is acquitted does not necessarily mean B will be as well (R v Darby). • You can’t conspire to do something that is legally impossible. • You can conspire to do something that is factually impossible. Aiding s 7(b) and (c) • What is the principal offence and who is principal offender?

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Deal with them first • Then distinguish from counselling; presence, constructive presence · Law: Aiding is providing support, help or assistance (R v Beck) to the PO. Aid is generally given to the PO during the commission of the offence, but can be before the offence (Ancuta). If a person aids another in the commission of an offence they will be liable for the primary offence under s 7(b) or (c). · First, there must be proof of a Principal Offence actually committed, although conviction of a Principal Offender not necessary (R v Lopuszynski). There can be joint Principal Offenders (Mohan v R). define · (b): requires proof of assistance being given for the purpose of aiding the commission of the offence. Therefore, an accused can act with the purpose of aiding but not actually aid, and still be liable (R v Arnold). · 7(c): does not specify mental element, but has been held that ‘aids’ means ‘knowingly aids’( Jervis v R: ‘aids’ held to be a word that carries an inherent mental element). · In both 7(c) and (d), the accessory must have actual knowledge of the future offence they are aiding, as opposed to merely a suspicion (although this knowledge can be inferred from proof of exposure to the obvious).

It is sufficient that the accused contemplates the type of crime to be committed by the PO – it is not necessary that its precise details be known (Ancuta). Recklessness, however, is an insufficient mental state for aiding. (Giorgianni). · Variable: Where the offence is one requiring fault elements, the accused must also have actual knowledge that the principal offender possessed the fault element for the principal offence (Stokes and Difford). ·

Variable: Non-interference to prevent a crime is not an offence BUT the fact that a person is ‘voluntarily and purposely present’ and offers no opposition may be grounds for a jury to find that he aided. Positive action NOT essential (Coney). Passive presence at the scene is aid, IF the accused knows his/her presence is encouraging/supporting the PO (e. g. , combination of prior aid and continued nondissociating presence may constitute implied offer of continuing aid = aid under s7) (Beck). · Apply to facts · Conclude Counselling or Procuring: s 7(d) ·

Law: If a person counsels or procures another to commit an offence they will be liable for the primary offence under s 7(d). · Procure means to provide information or material assistance to the PO, and that the provisions cause or bring about the crime (R v Beck). ‘Procuring’ involves intentionally causing the commission of the offence. Humphry v R: ‘procure’ means to produce by endeavour, and one procures a thing by setting out to see that it happens. The accused must also have an intention to assist (Georgianni v R) the PO and general knowledge of the planned crime (Ancuta). ·

Counselling means advice or encouragement (Stuart v R) before the commission of the offence. The counsel does not need to cause the crime (R v Coney). Section 9 extends liability beyond s7(d). [again, not really helpful here. You need to look at 7(d) direct, and only if that is not gven, you mention section 9] If it is established that the accused counselled the PO to commit the offence, then a jury must determine if the offence was a probable consequence of the counsel. Probable is defined (Darkan v R) as more probable than not, or of probability less than 50/50, but more than real chance. · Apply to facts · Conclude Common purpose, s8

Liability under s8 attaches when one of the parties goes beyond the common unlawful design/ plan. (If parties are within common plan, s7 enough for determining liability). · Law: When two or more persons together form a common intention to prosecute an unlawful purpose the court will regard them as joint principal offenders. The prosecution must establish that; (1) the accused formed an intention to prosecute an unlawful purpose (Brennan v R); (2) the PO committed the unlawful purpose (R v Phillips and Lawrence); and (3) the principle offence must have been a probable consequence of the prosecution of the unlawful purpose.

Test of whether ‘probable consequence’ is objective (Stuart v R). Probable is defined (Darkan v R) as more probable than not, or of probability less than 50/50, but more than just a ‘substantial or real chance’. There is no liability if PO unexpectedly departs from the common purpose and commits an offence that was not within the contemplation of the accessory and was not a probable consequence of the common purpose (R v Anderson and Morris) · Apply to facts · Conclude Withdrawal s 8(2) • Law: An accessory will not be liable until the PO is actually committed (s 8(2)).

The accused can terminate their involvement and escape their liability if they; (1) withdrew from the prosecution of the unlawful purpose; (2) by words or conduct communicate their withdrawal from the unlawful purpose to those invloved in the PO; and (3) take reasonable steps to prevent the commission of the offence (R v Menniti). · Apply to Facts · Conclude Fraud (not in exam) • Law: Fraud is when an owner parts with their property under false pretences. It is defined in s409 as (1) any person; (2) with intent to defraud; (3) by deceit or any other fraudulent means; (4) obtains property from another person. An intent to defraud is discussed in Balcombe v De Simoni. It requires an intention to induce, and does induce, another to act · · ? Deceit or other fraudulent means are generally statements of fact that the defendant knew to be untrue (R v Carpenter). But the definition is very broad. ? Obtains is defined in s1 as obtaining possession of property. Possession without ownership is enough (Seiler v R). ? Property in s1 includes everything, animate or inanimate, that is capable of ownership. Apply to facts Cobclusion

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