006 Flashcards
1
Q
Conspiracy
Legislation and elements
A
Section 310 Crimes act 1961
- 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 NZ would be an offence
7 Years Imp
(if penalty of that offence exceeds 7 years - otherwise same penalty)
2
Q
Conspiracy
R v Sanders?
A
“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”.
3
Q
Conspiracy
Mulcahy v R?
A
“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. When two agree to carry it (the intended offence) into effect, the very plot is an act in itself ….”
4
Q
Conspiracy
The mens rea (mental intent) necessary for a conspiracy is?
A
- An intention of those involved to agree, and
- An intention that the relevant course of conduct should be pursued by those party to the agreement
- The offenders’ mental intent must be to commit the full offence.
5
Q
Conspiracy
When is a conspiracy complete?
A
The offence is complete on the agreement being made with the required intent.
The agreement relies on two or more persons forming an agreement to commit an unlawful act or to do a lawful act by unlawful means.
6
Q
Conspiracy
The actus reus (physical element) necessary for a conspiracy is?
A
The actus reus of conspiracy is the actual agreement by two or more people to carry out the illegal conduct.
The physical acts, words or gestures used by the conspirators in making their agreement is what is to be considered the actus reus of a conspiratorial agreement.
7
Q
Conspiracy
Withdrawing from the agreement?
A
A person withdrawing from the agreement is still guilty of conspiracy. However a person can effectively withdraw before the actual agreement is made.
8
Q
Conspiracy
Proving Intent?
A
- The offenders actions and words before, during and after event
- The surrounding circumstances
- The nature of the act itself
9
Q
Conspiracy
R v White?
A
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.
10
Q
Conspiracy
In relation to a conspiracy investigation Interview and obtain statements from suspects to establish?
A
- the existence of an agreement to commit an offence, or
- the existence of an agreement to omit to do something that would amount to an offence, and
- the intent of those involved in the agreement
- the identity of all people concerned where possible
- Whether anything was written, said or done to further the common purpose.
11
Q
Conspiracy
Section 67 Crimes Act 1961?
(Conspiring with a spouse or partner)
A
A person is capable of conspiring with his or her spouse or civil union partner or with his or her spouse or civil union partner and any other person.
12
Q
Conspiracy
A defence to conspiracy to commit an offence overseas?
A
The person has a defence if they are able to prove that the act is not an offence under the law of the place where it was to be committed.
13
Q
Conspiracy
General rule when charging with Conspiracy?
A
Generally, charges of conspiracy should not be filed in situations where the specific (substantive) offence can be proved.
14
Q
Conspiracy
In relation to a conspiracy investigation Interview and obtain statements from Witnesses covering?
A
• The identity of the people present at the time of the agreement
• With whom the agreement was made
• What offence was planned?
-Any acts carried out to further the common purpose.
15
Q
Misleading Justice
Examples of conspiring to defeat/mislead justice?
A
- Threatening or bribing witnesses
- Threatening or bribing jury members
- Preventing a witnesses from testifying
- Wilfully going absent as a witness
- Assisting a wanted person to leave the country
- Arranging a false alibi
- Concealing the fact an offence has been committed
16
Q
Conspiracy
R v Ring?
A
‘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.’
(Physically or factually impossible)
17
Q
Attempts
Legislation and elements
A
Section 72(1) Crimes Act 1961?
- Everyone who
- Having intent to commit an offence
- Does or omits an act for the purpose of accomplishing their object
- Is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.
- If that offence punishable by life- penalty max. 10 years
- In any other case, not more than half the max. Punishment to which he would have been liable if he had committed the offence.
18
Q
Attempts section 72(3) Crimes Act 1961?
A
Section 72(3) Crimes Act 1961 outlines that the accused must have done or omitted to do some act(s) that is/are sufficiently proximate (close) to the full offence.
19
Q
Attempts
R v Harpur?
A
“[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.”
20
Q
Attempts
Three elements of the offence for a conviction to succeed
A
- Intent (mens rea)- to commit the offence
- Act (actus reus) – that they did or omitted to do something to achieve that end
- Proximity- that their act or omission was sufficiently close
21
Q
Attempts
The test for proximity?
A
- 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?
22
Q
Attempts
Once the acts are sufficiently proximate, the defendant has no defence that they:
A
- 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.
23
Q
Attempts
Higgins v Police?
A
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.
24
Q
Attempts
Police v Jay ?
A
A man bought hedge clippings believing they were cannabis.
25
Attempts
| What are 3 situations you are NOT able to charge someone with an attempt to commit a crime:
* The criminality depends on recklessness or negligence; ie manslaughter
* The offence was legally impossible
* An attempt to commit an offence in included within the definition of that offence, eg assault
26
Attempts
| R v Donnelly ?
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.
27
Attempts
| Function of the judge and jury?
The judge must decide whether the defendant had left the preparation stage and was already trying to effect completion of the full offence.
The jury must decide if the whether the facts presented by the crown have been proved beyond reasonable doubt and if so, must next decide whether the acts are close enough to the full offence.
28
Parties
| Legislation and elements
Section 66(1), Crimes act 1961
(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.
29
Parties
| R v Pene?
A party must intentionally help or encourage - it is insufficient if they were reckless as to whether the principal was assisted or encouraged.
30
Parties
| Who is the principal party?
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.
31
Parties
| Parties, what must you prove?
* The identity of the defendant, and
* An offence has been successfully committed; and
* The elements of the offence (s66(1)) have been satisfied
32
Parties
| Who is the secondary party?
Secondary parties are those people whose assistance, abetment, incitement, counselling or procurement is sufficient under s66(1)(b)(c)or(d).
33
Parties
| 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).
34
Parties
| R v Russell?
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.
35
Parties
| 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.
36
Parties
| What is the distinction between ‘aiding and abetting’ and ‘inciting, counselling and procuring’?
* Aiding and abetting require the presence of someone at the scene of the offence
* Inciting, counselling and procuring describe actions that occurred before the offence was carried out.
37
Parties
| 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.
38
Parties
| R v Betts and 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.
39
Parties
| How might the involvement of parties be established?
- Reconstructing offence- this would indicate one person involved or that principal offender got advice/assistance
- Principal offender acknowledging/admitting others involved
- A suspect or witness admitting to providing aid etc
- A witness providing evidence of anothers involvement based on their observations
- Receiving information indicating others were involved
40
Parties
| What does section 66(2) refer to?
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.
41
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Accessory after the fact
Section 71(2) – Special Relationships?
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You cannot be charged with being an accessory after the fact to your spouse (legally married), or your spouse and another party. This same limitation applies to those in a civil union, but does not extend to encompass those in de facto relationships or other family relationships.
42
Accessory after the fact
| Legislation and elements
Section 71(1), Crimes Act 1961
- Knowing any person to be a party to the offence
- Receives, comforts or assists that person OR
- Tampers with or actively suppresses any evidence against him or her
- In order to enable him or her to excape after being arrested OR
- To avoid arrest or conviction
Penalty-
Life imprisonment – max 7 years
10 years or more- 5 years
Under 10 years- ½ penalty
43
Accessory after the fact
Section 71, Crimes Act 1961
R v Crooks?
Knowledge means actual knowledge or belief in the sense of having no real doubt that the person assisted was a party to the relevant offence. Mere suspicion of their involvement in the offence is insufficient.
44
Accessory after the fact
Section 71, Crimes Act 1961
At the time of the assistance given, the person must know that?
* an offence has been committed, and
| * the person they are assisting was a party (principal or secondary) to that offence
45
Accessory after the fact
Section 71, Crimes Act 1961
R v Briggs?
As with a receiving charge under s246(1), knowledge may also be inferred from wilful blindness or a deliberate abstention from making inquiries that would confirm the suspected truth.
46
Accessory after the fact
Section 71, Crimes Act 1961
R v Mane?
To be considered an accessory the acts done by the person must be after the completion of the offence.
47
Accessory after the fact
Section 71, Crimes Act 1961
What can the offender insist?
An accessory after the fact is entitled to insist that the principal offence be proved, this despite any guilty plea entered or conviction.
48
Accessory after the fact
Section 71, Crimes Act 1961
When can you charge a receiver of stolen goods with AATF?
When the receiver obtained the goods with the view of helping the offender evade justice.
49
Receiving
| Legislation and elements
Sec 246 (1)
- Receives
- Any property stolen or
- Obtained by any other imprisonable offence
- Knowing that property to be stolen or obtained by any other imprisonable offence OR
- Being reckless as to whether that property was stolen or so obtained
Penalty- exceeds $1000- 7 years/ $500-$1000- 1 year/ Under $500 – 3 months
50
Receiving
When is Receiving complete?
Sec 246 (3)
As soon as the offender has, either exclusively or jointly with the thief or any other person, possession of, or control over the property or helps in concealing.
51
* Receiving
| How can title be voided?
* Communicating directly with the receiver
* Advising police of the circumstances
* Taking all reasonable steps to bring it to the deceiver attention eg. Letter, email
52
Receiving
| Circumstances of guilty knowledge?
* possession of recently stolen property
* nature of the property, ie type, value, quantity
* purchase at a gross undervalue
* secrecy in receiving the property
* receipt of goods at an unusual place, time or way
* removal of identifying marks or features
* steps taken to disguise property, ie removal / altering of serial numbers
* lack of original packaging
* type of person goods received from
* mode of payment
* absence of receipt where receipt would usually be issued
53
Receiving
| R v Cox?
Possession involves two elements. The first, the physical element, is actual or potential physical custody or control. The second, the mental element, is a combination of knowledge and intention: knowledge in the sense of an awareness by the accused that the substance is in his possession and an intention to exercise possession.
54
Receiving
| Cullen v R?
There are four elements of possession for receiving:
(a) awareness that the item is where it is;
(b) awareness that the item has been stolen;
(c) actual or potential control of the item; and
(d) an intention to exercise that control over the item.
55
Receiving
| R v Donnelly?
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.
56
Receiving
| R v Kennedy?
The guilty knowledge that the thing has been stolen or dishonestly obtained must exist at the time of receiving.
57
Conspiracy
| Crown must prove that: (4)
1. Two or more people were involved
2. An agreement was made
3. The agreement was to commit an offence; and
4. At the time of the agreement their intention was to commit the offence
58
Attempts
| Attempts section 72(2) Crimes Act 1961?
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, & too remote to constitute an attempt to commit it, is a question of law
- Decided by a judge
59
Misleading Justice
| False Oaths
S110
- Everyone who
- 5 years
- Being required or authorised by law to make any statement on oath or affirmation, there upon makes a statement that would amount to perjury if made in a judicial proceeding
60
Misleading Justice
| False Statement declarations
Sec 111
- Everyone who
- 3 years
- On any occasions on which he is required or permitted by law to make any statement or declaration before any officers or person authorised by law to take or receive it, or before any notary public certified by him as such notary make a stamen or declaration that would amount to perjury if made on oath in a judicial proceeding.
61
Misleading justice
| Fabricating evidence
Sec 113
- Everyone who
- 7 years
- With intent to mislead any tribunal holding any judicial proceeding to which sec 108 applies, fabricates evidence by any mean other than perjury
62
*Misleading Justice
| Corroboration- Evidence Act
Sec 121 Evidence Act 2006
1) It is not necessary in a criminal proceedings for the evidence on which the prosecution relies to be corroborated, except with respect to the offence of
a) Perjury (s108) and
b) False oaths (s110) and
c) False satements/declaration (s 111) and
d) Treason (sec 73)
63
*Misleading Justice
| Corroboration- Crimes Act
Sec 112
- No one shall be convicted of perjury, or of any offence against sec 110 or 111, on the evidence of one witness only, unless the evidence of that witness is corroborated in some material particular by evidence implicating the defendant
64
Misleading justice
| Conspire to defeat justice
Sec 116
- Everyone who
- Conspires to
- Obstruct, prevent, pervert, defeat
- The course of justice
65
Misleading justice
| Corrupting juries and witnesses
Sec 117
A) Dissuades (or attempts) any person by threats, bribes or other corrupt means, form giving evidence in any cause/matter
B) Influences (or attempts) by threat, bribes or any other corrupt means a member of a jury in his/her conduct as such (whether in nz or not)
C) Accepts any bribes or other corrupt consideration to abstain from giving evidence etc
D) Accept any bribe or other corrupt consideration on account of his/her conduct as a member of a jury etc
E) Willfully attempts, any other way, obstructs, prevents, preverts, defeat C.O. J (?) etc
66
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*Misleading Justice
Investigative procedures (5)
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* You may only commence a prosecution for perjury (civil or criminal), where it is recommended by the courts or you are directed to do so by the COMMISSIONER of Police. You may, however, begin inquiries into an allegation of perjury without reference to the court or Commissioner of Police.
* COMPLAINTS of perjury can arise in two ways:
- An individual may complain that someone has perjured themselves.
- A Judge may state or direct in a court recommendation that the police undertake inquiries into the truth of the evidence given by a witness
67
Perjury
| Legislation and elements
sec 108 (1)
- A witness making any
- Assertions as to any matter of fact, opinion, belief, knowledge
- In any judicial proceeding
- Forming part of that witness’s evidence on oath
- Known by that witness to be false and intended to mislead the tribunal
1) Except as per (2); everyone who liable 7 years
2) If perjury committed in order to procure the conviction of a person for an offence for which max. penalty is not less than 3 years; the punishment maybe 14 years
68
Perjury
| Witness
A person who given evidence and is able to be cross exanimated in proceedings includes a person who is actively engaged in the process of giving evidence a/or one who has previously given evidence
Includes a person who will give evidence
69
Perjury
| Assertion
Something declared or stated positively, often with no support or attempt at furnishing evidence or proof of the assertions accuracy
70
Perjury
| “matter of fact”
A fact is a thing done, an actual occurrence, or event and it is presented during court proceedings in the form of witness testimony and evidence
71
*Perjury
| Opinion
Sec 4 Evidence Act 2006
Opinion in relation to a statement offered in evidence, means a statement of opinion that tends to prove or disprove a fact
*not admissible except sec 24/25 Evidence Act
72
*Perjury
| Opinion as evidence by lay witness (non expert witness)
Sec 24 Evidence Act 2006
A witness may state an opinion in evidence in a proceeding if that opinion is necessary to enable the witness to communicate, or the fact-finder to understand what the witness saw, heard or otherwise perceived
73
*Perjury
| expert opinion evidence
Sec 25 Evidence Act 2006
An opinion by an expert that is part of expert evidence offered in a proceeding is admissible if the fact-finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding or in ascertaining any fact that is of consequence to the determination of the proceeding.
74
Perjury
| “Belief”
Belief is essentially a subjective feeling re the validity of an idea or set of facts. It is more than mere suspicion and less than knowledge.
75
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Perjury
Giving evidence (in a proceeding)
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Sec 4 Evidence Act (4)
A) The ordinary way as described in Sec 83 (personally in court or by affidavit OR)
B) In an alternate way as provided by sec 105 (CCTV, DVD, Screens OR)
C) In any other way provided for under this act or any other enactment
76
Perjury
Oath
Affirmation
Declaration
Oath- Declaration before a person who has authority to administer an oath which invokes some religious belief and says that a thing is right or true eg The bible
Affirmation- Verbal/written declaration before a person who has authority to administer an oath, saying that a thing is true or right without reference to religious belief.
Declaration- A witness under 12 may make a declaration, which is a promise to tell the truth
77
* Prejury
| When is offence complete?
Offence complete at the time the false evidence is given accompanied by an intention to mislead the tribunal
78
*Perjury
| You may only commence a prosecution for perjury (civil or criminal) when:
- It is recommended by the courts or
- Directed to do so by commissioner of police
* however you can commence 4Qs into an allegation
79
*Accessory after the Fact
| Offence: define
An act or omission that is punishable on conviction under any enactment, and are demarcated into four categories.
80
Accessory after the fact
| What needs to be proved? (4)
- Person A is party to an offence and has then been received, comforted or assisted by person B
- Person B knew person A was a party to the offence at the time of receiving, comforting or assisting
- Person B received, comforted, or assisted person A or tampered with or actively suppressed any evidence against person A
- At the time of receiving, comforting or assisting person B’s purpose was to enable person A to escape after arrest or to avoid arrest or conviction
81
Accessory after the fact
| Knowing; Define
“Knowing” means knowing or correctly believing.. the belief must be a correct one, where the belief is wrong a person cannot know something
82
* Accessory after the fact
| At the time of assistance, an accessory must possess knowledge that: (2)
- An offence has been committed AND
| - The person they are assisting was a party (principal or secondary) to that offence
83
Accessory after the fact
Receives
Comforts
Assists
Recieves: harbouring, offering shelter, hiding
Comforts: Provide such things as food and clothing
Assists: - transport, lookout, providing false info to police, giving advice, info, material or services
84
Accessory after the fact
| Tampers with/actively suppresses evidence
Tampers means to alter the evidence against the offender.
Actively suppressing evidence encompasses acts of concealing or destroying
evidence against an offender.
85
Accessory after the fact
| Enable escape or/avoid arrest or convictions
1) The act must have specifically assisted the offender after they had been arrested
2) All acts must be done by the accused with the EXPRESS INTENTION that the person EVADE JUSTICE either by escaping after being arrested or by avoiding arrest or conviction
86
Accessory after the fact
| R V Gibbs
- Gibbs and excapee at a hiding place
- Gibbs left to get supplies
- Court determined escapee was being helped by Gibbs due to Gibbs supplying provisions, despite Gibbs saying they were for Gibbs own benefit
* Acts done must have helped the other person in some way to evade justice
87
Accessory after the fact
| R v Levy
- Levy convicted as Accessory after the fact to counterfeiting currency
- He removed equipment after it has been used by the offender, and after the offenders arrest and recover of the moulds used in the counterfeiting
- Deliberate act to assist offender to evade justice
88
Accessory after the fact
| A person is considered wilfully blind in only two situations
1) The person deliberately shuts their eyes and fails to enquire because they knew what the answer would be OR
2) In situations where the means of knowledge are easily at hand and the person realises the likely truth of the matter but refrains from inquiring in order not to know
89
Money laundering
| Engages
Sec 243 (2)
- Everyone 7 years imprisonment
- Re any property that is proceeds of an offence
- Engages in a money laundering transaction
- Knowing or believing that all or part of the property is the proceeds of an offence or being reckless as to ..
90
Money Laundering
| Intends
Sec 243 (3)
- Everyone who 5 years
- Obtains/has in possession any property (being property that is the proceeds of an offence committed by another person)
A) With intent to engage in a money laundering transaction re that property AND
B) Knowing/believing that all or part of the property is the proceeds of an offence or being reckless..
91
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Money Laundering
Sec 243 (4)
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For purposes of this section, a person engages in a money laundering transaction if, in concealing any property or by enabling any person to conceal any property, that person
A) Deals with that property OR
B) Assists any other person, whether directly or indirectly, to deal with that property
92
Money Laundering
| Define “Interest”
Re any property means:
A) A legal or equitable estate or interest in the property OR
B) A right, power or privileged in connection with the property
93
*Money laundering
| 3 phases
Placement- cash enters financial system
Layering- Money is involved in a number of transactions
Integration- Money is mixed with lawful funds or integrated back into the economy, with the appearance of legitimacy
94
Parties
| Explain- Aids/abets/incites/counsels/procures
Aids- Assist (physical, advice or information) eg lookout, giving key, info re neighbours away etc
Abets- instigate or encourage (urge another)
Incites- Rouse, stir up, stimulate, animate, urge etc
Counsels- give advice, intentionally instigate, plan etc
Procures- setting out to see that something happens ie payment, offer, fraud, persuasion, words or conduct
*deliberately causes- stronger connection that aiding abet or incite
95
Parties
| When participation must 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
96
Parties
| Multiple offender can be principals(2)
1) Each satisfies elements of offence committed (ie 2 beating up a third)
2) Each separately satisfied party of the actus reus which when combined, satisfy the complete actus reus. Their actions must also be accompanied by the requisite mean rea.
Eg 1 prepares a poison , the other administers it. Both share the same intent
97
Parties
| Probable Consequences Qualification (1)
There is no requirement that person A knows or foresees the precise manner in which offence B is to be committed by Person B. Person A need only realise that an offence of that type is probable.
98
Parties
| Probable Consequences Qualification (2)
The is no requirement that person As foresight of offence B include any appreciation of the consequences of the physical elements of the offence committed (offence B), but for which no mens rea element is required.
99
Parties
| Define Innocent agent
- Someone who is unaware of the significant of their actions
- Patterson: Innocent person was asked to uplift a TV
- Offender prepares poison and puts it in a wine glass, waiter give it to victim not knowing- innocently
100
Receiving
Sec 246(4)
Receiving after restoration to owner
A) Any property stolen or obtained by any other imprisonable offence has been returned to the owner, or
B) Legal title to such property has been acquired by any other person
C) Subseuqnetly receiving of it is not an offence, even though the receiver may know that the property has previously been stolen or obtained by any other imprisonable offence.
101
Receiving
| Property
Sec 2- property includes any real or personal property and any estate or interest in any real or personal property, money, electricity and any debt and anything in action. And any other right or interest
102
Receiving
| R v Lucinsky
The property received must be the property stolen or illegally obtained (or part there of) and not some other item for which the illegally obtained property has been exchanged or which are the proceeds
103
Receiving
| R v Harney (Recklessness)
Recklessness means the conscious and deliberate taking of an unjustified risk. In NZ it involves proof that the consequences complained of could well happen, together with an intention to continue the course of conduct regardless of risk
104
Receiving
| Doctrine of recent possession
*Whether possession is “recent” depends on – nature pf the property and surrounding circumstances
In the circumstances where a person is FOUND IN POSSESSION of stolen property reasonably soon after the theft, an inference way be drawn that the person in possession either stolen the property or received it from the thief
105
*Receiving
| Control over property
Where property is located at a place, over which the receiver has control, the prosecution must prove the receiver arranged for the property to be delivered there, or alternatively that on discovering the property, he or she intentionally exercised control over it.
106
*Criminal procedures Act
Assets forfeiture order
Define
An Asset forfeiture Order is issued by the high court on application. This order must be issued by the court on a successful application that shows on the balance of probability that specific assets which have been acquired have been tainted by significant criminal activity
107
Criminal procedures Act
Profit forfeiture order
Sec 55
The court must make a asset forfeiture order if it is satisfied on the balance of probabilities that –
a) The respondent has unknown benefited from significant criminal activity within relevant period of criminal activity AND
b) The respondent has interest in property
108
Criminal procedures Act
Define
“Instrument of crime”
Sec 5
a) Property used (wholly or in part) to commit or facilitate the commission of a qualifying instrument forfeiture offence
109
Criminal procedures Act
| Before preparing application assessment required to determine (4)
- Value of asset
- Equity in the asset
- Any 3rd party interest in the asset
- The cost of action re the asset
110
* Criminal procedures Act
Suspect interview
When interviewing about money laudering or proceeds recovery action, consider.. (7)
o Suspects legitimate income
o Suspects illegitimate income
o Expenditures
o Assets
o Liabilities
o Acquisition of financial records from banks, finance companies, loan sharks, family trust documents
o Clarification of doc, evidence located as per above
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* Criminal procedures Act
| Define “Tainted property”
Sec 5 Criminal procedures Act
Tainted property
a) Means any property that has wholly or in part been
i) Acquired as a result of Significant criminal activity OR
ii) Directly/indirectly derived from S.C.A AND
b) Includes any property acquired as a result of, or directly/indirectly from, more than one activity if at least one of those activities is a S.C.A
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* Criminal procedures (recovery) Act
| “Significant criminal Activity”
Sec 6
1) Unless context otherwise requires S.C.A means an activity engaged in by a person that if proceeded against as a criminal offence, would amount to offending:
a) Consists/includes offence 5 year + OR
b) From which property, proceeds, benefit of a value of $30,000 + have been directly/indirectly acquired/derived
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* Criminal procedures (recover) Act
| Unlawfully benefited from Criminal Activity
Sec 7
A person has knowingly benefited from significant criminal activity if the person has knowingly directly or indirectly derived a benefit from significant criminal acitivity
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Perjury
| Judicial Proceeding
108(4)(a) Any court of justice
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Receiving
| Possession can be established by showing that the property is
- in the immediate physical custody of the receiver, or
- at a location, over which the receiver has control (such as their place of business or
private residence)
