Associated Offences Flashcards
Liability - Conspiracy
Conspiracy
Section 310(1) CA1961
Penalty 7 years if exceeds 7 years, matches if under 7 years
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
Can a person be charged with conspiracy if they enter an agreement but are incapable of carrying out the substantive offence?
Yes
Conspiracy - MULCAHY v R - Conspires
An agreement by 2 or more people to do an unlawful act or to do a lawful act by unlawful means
Conspiracy - R v WHITE - 2 or more people
Where you can prove a suspect conspired with another that suspect can still be convicted even if the others identity is never established
Conspiracy - R v SANDERS - ways Conspires ends
Conspiracy does not end with the making of an agreement
The agreement continues until it is ended by completion of its
Performance or
Abandonment or
The agreement is discharged
Conspiracy - when is the offence complete?
On the agreement being made, accompanied by the required intent
Doesn’t require progression toward its completion
Conspiracy - 5 points when interviewing suspects
1) Existence of agreement to commit an offence
2) Existence of agreement to omit or do something amounting to an offence
3) The intent of those involved in agreement
4) Identity of people involved
5) Anything written, said or done to further common purpose
When is a person involved in a conspiracy?
A person is involved in a conspiracy when he/she agrees with another party to commit another offence or omission
Conspiracy - Withdrawal
A person can only withdraw before the agreement is made not to be liable. If the withdraw after the agreement is made they are still liable for conspiracy
What is the mens rea and the actus reus in a conspiracy?
Requires both mens rea and actus reus
Mens rea requires 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 intent must be to carry out the full offence
Actus reus is the actual agreement by 2 or more to carry out the illegal conduct. Physical acts, words or gestures is considered the actus reus
What is intent and how is it proved?
Intention to commit an act and an intention to get a specific result
Proved by circumstantial evidence from where the intent can be inferred:
Actions and words before, during and after
Surrounding circumstances
Nature of the act itself
Conspiracy - What is Section 67 CA1961?
A person can conspire with their spouse or civil union partner (AND additionally any other person)
Conspiracy to commit offence overseas
Still an offence unless they can prove that it is not an offence in the place where it was to be committed
Conspiracy - Admissibility of evidence
Conspirators should be jointly charged as anything said or done to further the common purpose is admissible against the others involved
Conspiracy - 4 points when interviewing witnesses
1) ID of people present at time of agreement
2) With whom the agreement was made
3) What offence was planned
4) Any acts carried out to further the common purpose
Conspiracy - why is laying a substantial charge undesirable?
Laying both a substantive charge and a related conspiracy charge is often undesirable because:
- Evidence for conspiracy charge may be prejudicial to other charges
- Judge may disallow evidence as it will be too prejudicial ie jury assumes guilt
- Addition of conspiracy charge may complicate or prolong trial
- May be quashed if conspiracy not founded on evidence or an abuse of process
- Severance may be ordered causing separate trials
Liability - Attempts
S72(1) CA1961
Penalty (S311): Life = 10years, others = no more than half of maximum
Everyone
Having an intent to commit an offence
Does or omits an act for the purpose of accomplishing his/her object
What are the 3 conditions that must apply for an attempt?
Intent (mens rea) - to commit an 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
Additionally there is a requirement that it must be legally possible to commit the offence
What is needed to prove an attempt?
It must be shown that the accused’s intention was to commit the substantive offence
Attempts - Proving intent
Intent of the offenders may be inferred from the act itself (what they did) and/or admissions or confessions
Whether that intent exists or not is a question of fact; a question that the jury decides
Attempts - R v Ring
Offenders intent was to steal property by putting his hand in a pocket, the pocket was empty and he was convicted of attempted theft because the intent to steal was present in his mind as demonstrated by his actions
What does 72(3) CA1961 state when it comes to sufficiently proximate
The accused must have done or omitted to do some act that is sufficiently proximate to the full offence. The accused must have started to commit the full offence and have gone beyond the phase of mere preparation
Examples of attempts (American Model Penal Code)
- Lying in wait
- Enticing the victim to go to the scene
- Recon of the scene
- Unlawfully entering a structure, vehicle or enclosure of where the crime will be committed
- Possessing, collecting or fabricating materials to be used in the crime
- Soliciting an innocent agent to engage in conduct constituting an element of the crime
Attempts - R v Harpur
The Court may have regard to the conduct viewed cumulatively up to the point when the conduct inn question stops. The defendants conduct may be considered in its entirety. Considering how much remains to be done is always relevant though not determinative
Independent acts may look as preparatory, when viewed collectively can make up a criminal attempt
Attempts - Under S72(2) states proximity is a question of law - who makes the decision?
Judge based on the assumption that the facts of the case are proved
What are elements that help determine proximity
There is no clear definition. When determining proximity you must take into consideration fact, degree, common sense and the seriousness of the offence. Combined or each on a case-by-case basis
Attempts - Define impossibility
A person can be convicted of an offence that was physically impossible to commit but cannot be convicted of an offence that was legally impossible to commit
Define physically and factually impossible referring to R v Ring, Higgins V Police and Police v Jay
The suspect is unable to commit it due to interruption, ineptitude or any other circumstances beyond their control
R v Ring - Hand in pocket, pocket empty
Higgins v Police - Where plants being cultivated as cannabis are not cannabis, it is physically, not legally, impossible to cultivate such plants. Can be convicted of attempted cultivate cannabis
Police v Jay - A man bought hedge clippings believing it was cannabis
Define legally impossible referring to R v Donnelly
What is attempted must be an offence despite the persons belief at the time
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
When is an attempt complete?
An attempt is complete even if the defendant changes their mind or makes a voluntary withdrawal after completing an act that is sufficiently proximate to the intended offence
Once sufficiently proximate there is no defence if they:
- Were prevented by outside agent eg interruption from Police
- Failed to complete full offence due to ineptitude, inefficiency or insufficient means eg not enough explosives
- Were prevented because of an intervening event eg property removed prior to theft
What is the function of the judge and jury in an attempts case
The judge must decide whether the defendant had left the preparation stage and was trying to effect the completion of the offence. This will then move to the jury. The jury must decide if the facts prove beyond reasonable doubt and if they do if the acts are close enough to the full offence. The jury must then decide if the mens rea has been proved beyond reasonable doubt
When are you unable to charge with an attempt?
- The criminality depends on recklessness or negligence eg manslaughter
- An attempt is included within the definition of the offence eg assault
- The act has to have been completed for the offence to exist at all eg demands with menace
Parties to - S66(1) and 66(2) CA1961
1) Everyone is a party to and guilty of an offence who
a) Actually commits the offence or
b) Does or omits an act for the purpose of aiding any person to commit the offence or
c) Abets any person in the commission of the offence or
d) Incites, counsels, or procures any person to commit the offence
2) Where 2 or more people form a common intention to prosecute any unlawful purpose each of them is party to every offence committed by any one of them in the prosecution of the common purpose if that offence was known to be a probable consequence
What do you need to prove for Parties?
You must prove
- The identity of the defendant
- The offence has been committed
- The elements of S66(1) have been satisfied
When does participation have to occur in a Parties offence?
Participation must have occurred before or during the offence and before the completion of the offence
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
Parties - R v Renata
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)
Does a secondary party have to be present?
No eg a person leaves a door unlocked so a burglary can occur
Difference between principal party and secondary party
Principal party is liable under S66(1)(a) where the mens rea and actus reus is satisfied. Can be more than one principal offender
Secondary party are those who assist, abet, incite and counsel as per S66(1)(b),(c),(d) despite them not actually committing the offence
Parties - Define aids
Means to assist in the commission of the offence, either physically or by giving advice and information. Does not need to be present (R v Turanga)
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
Parties - Define Abets
Means to instigate or encourage, that is to urge another person to commit the offence
Passive acquiescence may be considered abetting if they are present and do nothing to prevent an offence unless there is a special relationship with the principal offender or they owe a legal duty to the victim or to the general public
Parties - Define legal duty as part of abets
Ashton v Police
Legal duty to act and a right or power of control over the principal offender.
Ashton v Police - Legal duty to a third person or the general public eg a person teaching another person to drive. That person is, in NZ, under a legal duty to take reasonable precautions, because under S156 CA1961 he is deemed in charge of a dangerous thing
Parties - Define special relationship as part of abets
R v Russell
Where there is a special relationship and no intervention might amount to approval and encouragement of the principal offenders actions
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 doing so, 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
Parties - Define incites, counsels and procures
All take place before the offence is committed and none of those people need to be in attendance.
Incites - Means to rouse, stir up, stimulate, urge or spur in a person to commit the offence
Counsels - Means to intentionally instigate the offence by advising a person on how best to commit the offence
Procures - Is setting out to see that something happens and taking the appropriate steps to ensure that it does eg a woman obtains the services of a hit man
Parties - Define common intention
2 or more offenders form a common intention and embark on a joint enterprise can be charged as parties to the offence
They can also be charged as parties to any other offence that any one of them commits in order to assist in the commission of the offence provided the other offence is a known probable consequence of their common purpose
Parties - R v Betts and Riley
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
Parties - Define probable consequence
It will be sufficient where it can be demonstrated that they knew there was a substantial or real risk or that the offence could well happen
Parties - Ways of establishing involvement of parties
The involvement of parties may be established by:
- A reconstruction of the offence committed
- The principal offender acknowledging or admitting that others were involved in the offence
- A suspect or witness admitting to providing aid or assistance when interviewed
- A witness providing you with evidence of another persons involvement based on their observations
- Receiving information indicating that others were involved in the offence
Parties - R v Hartley
In a gang shooting an accomplice could be convicted of manslaughter and the principal offender could be convicted of murder
Parties - R v Pink
A secondary offender may escape liability by a timely and effective withdrawal before the commission or attempt of the offence
Liability - Accessory after the fact
Accessory after the fact Section 71(1) CA1961
-Knowing any person to have been a party to the offence
-Receives or comforts or assists that person OR
Tampers with or actively suppresses any evidence against him
-In order to enable him to escape after arrest OR to avoid arrest or conviction
AATF - What needs to be proved
- Person A who is received, comforted or assisted by the accessory (person B) is a party to an offence that has been committed
- At the time of received, comforted or assisted that person A, the accessory (person B) knows that person A was a party to the offence
- The accessory (person B) received, comforted or assisted OR tampered with or actively suppressed evidence against person a
- Accessory (person B) purpose was to enable person A to escape arrest or avoid arrest or conviction
AATF - Spouse/civil union partner exceptions - S71(2)
You cannot be charged with being an accessory after the fact to your spouse (legally married) this applies to civil union but NOT de facto or other family relationships
AATF - Define offence
An act or omission that is punishable on conviction under any enactment, and are demarcated into 4 categories with S6, CPA2011
Offence must be complete to be an accessory
AATF - 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 sufficient
AATF - What knowledge does an accessory require?
- An offence has been committed and
- The person they are assisting was a party to the offence
AATF - 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 enquiries that would confirm the suspected truth
AATF - Wilful blindness
A person is considered wilfully blind in 2 situations
- Where a person deliberately shuts their eyes and fails to enquire
- Where 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
What is the actus reus in AATF
Accessory must do a deliberate intentional act with the purpose of assisting the person to evade justice
Intentional acts:
- Receives
- Comforts
- Assists
- Tampers with evidence
- Actively suppresses evidence
AATF - R v Mane
To be considered an accessory the acts done by the person must be after the completion of the offence
AATF - Define receiving or comforting
Harbouring an offender or offering them shelter eg hiding a prison escapee in a basement
Comforting encompasses situations where an accessory provides an offender with things such as food and clothing
AATF - Define assisting
Providing transport, acting as a lookout, identifying someone willing to purchase stolen property
AATF - Define to evade justice
R v Gibbs
Gibbs highlights the act or acts done by the accessory must have helped the other person in some way to evade justice
AATF - Define tampers with evidence
Alter evidence against the offender
AATF - Define actively suppresses evidence
R v Levy
Acts of concealing or destroying evidence
R v Levy - Levy had done a deliberate act in relation to the evidence against the offender for the purpose of assisting that offender to evade justice
Can you attempt to be an accessory
Yes
Attempting to assist by unsuccessfully disposing of a knife after a murder
AATF - What is an accessorys intent?
The intent of the accessory to assist the offender by
- escape after arrest
- avoid arrest
- avoid conviction
AATF - Define the proof of the principal offence
R v Mane
An accessory is entitled to insist on proof that the alleged offence was committed and to challenge that proof
This also applies to situations where the defendant has pleaded guilty to the principal offence, the principal offence must still be proved where required
AATF - Define the acquittal of the offender
A person can still be convicted as an accessory despite the offender having been or may be acquitted unless the accessory’s conviction is inconsistent with the acquittal if the original offender
Liability - Perjury
S108(1) CA1961
A witness making any
Assertion as to any matter of fact or opinion or belief or knowledge
In any judicial proceeding
Forming part of the witnesses evidence on oath
Known by that witness to be false and intended to mislead the tribunal
Is a false statement made in a formal statement perjury?
Yes
What is the punishment of perjury?
S109 CA1961
7 years except subsection 2 which states if perjury is committed in order to procure the conviction of a person for any offence not less than 3 years imprisonment then no more than 14 years imprisonment is the punishment
Define S112 CA1961
Evidence of perjury, false oath, or false statement
Can’t be convicted of perjury on the evidence on witness only unless the evidence of that witness is corroborated in some material particular by evidence implicating the defendant
Define S113 CA1961
Fabricating evidence
7 years imprisonment
With intent to mislead any judicial proceeding to which S108 applies, fabricates evidence by any means other than perjury
Elements of perjury
- A witness making any
- assertion as to any matter of fact, opinion, belief, or 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
Define a witness
A person who gives evidence and is able to be cross-examined
Define belief
It is more than mere suspicion and less than knowledge
Define knowledge
Simester & Brookbanks
Knowing means knowing or correctly believing. The belief must be a correct one, where the belief is a wrong a person cannot know something
Define intention to mislead
The offence of perjury is complete at the time the false evidence is given accompanied by an intention to mislead the tribunal.
The intention must be to mislead the tribunal
Perjury - Is corroboration required
Generally not necessary except for offences involving perjury, false oaths and false statements or declarations
Examples of misleading justice
- Preventing a witness from testifying
- Wilfully going absent as a witness
- Threatening or bribing a witness
- Concealing the fact an offence has been committed
- Intentionally giving Police false information to obstruct their inquiries
- Supplying false information to probation officers
- Assisting a wanted person to leave the country
- Arranging a false alibi
- Threatening or bribing jury members
Perjury - investigation proceedure
You may only commence a prosecution for perjury where it is recommended by the courts or you are directed to do so by the commissioner of police. You may begin inquiries into as allegation of perjury without reference to the court or commissioner
Liability - receiving
S246 CA1961
Receives
Any property stolen or obtained by any other imprisonable offence
Knowing that property to have been stolen or so obtained or
Being reckless as to whether or not the property had been stolen or so obtained
Receiving - what is the act of receiving
There must be property which has been stolen or has been obtained by an imprisonable offence
The defendant must have received the property
The defendant must receive that property in the knowledge that it has been stolen or illegally obtained, or being reckless as to that possibility
Receiving - When is the act is complete
Complete 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 or disposing of the property
Receiving - R v Cox - Possession
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
Receiving - Cullen v R - Possession for receiving
There are four elements of possession for receiving
1) awareness that the item is where it is
2) awareness that the item has been stolen
3) actual or potential control of the item and
4) an intention to exercise that control over the item
Receiving - define assisting
Where the defendant has assisted in the disposal or concealment of stolen property it must prove both actual assistance and guilty knowledge
Receiving - R v Donnelly - legally possible
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
Define property in relation to receiving
Property includes real and personal property, and any estate or interest in any real and personal property
Includes both tangible and intangible property
The offender must receive property which was stolen or obtained by an imprisonable offence
Receiving a part of what was stolen will suffice
Receiving - R v Lucinsky
The property received must be the property stolen or illegally obtained (or part thereof) and not some other item for which the illegally obtained property had been exchanged or which are the proceeds
Claim of title
A right or claim to the ownership of property
Avoiding title
- Communicating directly with the deceiver
- Taking all reasonable and possible steps to bring it to the deceivers notice eg sending an email or letter
- Advising Police of the circumstances of the deception
Define knowing that property to have been stolen or so obtained
R v Kennedy
Accused knew the property was stolen or so obtained by an imprisonable offence, or was reckless as to that possibility at the time of its receiving
R v Kennedy - The guilty knowledge that the thing has been stolen or dishonestly obtained must exist at the time of receiving
A person who receives innocently does not commit an offence under this section if he/she retains the property dishonestly after acquiring such knowledge (theft)
Define reckless as to whether or not the property had been stolen or so obtained
R v Harney
Acting recklessly involves consciously and deliberately taking an unjustifiable risk
R v Harney - Recklessness means the conscious and deliberate taking of an unjustified risk. In NZ it involves proof that the consequence complained of could well happen, together with an intention to continue the course of conduct regardless of risk
Circumstantial evidence of guilty knowledge
Circumstances commonly relied on as evidence 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 time/place/way
- concealment of property to avoid discovery
- removal of indentifying marks or features
- steps taken to disguise property ie remove serial numbers
- lack of original packeging
- type of person goods received from
- mode of payment
- absence of receipt where receipt would normally be issued
Doctrine of recent possession
The presumption that the proof of possession by the defendant of the property recently stolen is, in the absence of a satisfactory explanation, evidence to justify a belief and finding that the possessor is either the thief or receiver
Only applies where defendant is in possession of stolen property
Has no application to the concealing or disposition of property
Recent is dependent on the nature of the property and the surrounding circumsatnces
Define property stolen to order
Where property is stolen to order the receiver of such property is liable as a party to the principle offence (S66(1)) rather than as a receiver under S246
Money laundering - define Interest
Interest in relation to property means
- a legal or equitable estate or interest in the property or
- a right, power, or privilege in connection with the property
Money laundering - define Offence
means an offence that is punishable under NZ law, including any act wherever committed that would be an offence in NZ if committed in NZ
Money laundering - define Proceeds
In relation to an offence, means any property that is derived or realised, directly or indirectly, by any person from the commission of the offence
Money laundering - section and penalty
Subject to sections 244 and 245, every one is liable to imprisonment for as term not exceeding 7 years who in respect of any property that is the 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 whether or not the property is the proceeds of an offence
Meaning of money laundering
Process of dealing with the proceeds of criminal activity in such a way as to make the proceeds appear to have been legitimately acquired
Name the three phases of money laundering
Placement - cash enters the 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
Name the elements of money laundering including section
S243(2)
1) Everyone who in respect of any property that is the proceeds of an offence
2) Engages in a money laundering transaction
3) Knowing or believing that all or part of the property is the proceeds of an offence
4) Or being reckless as to whether or not the property is the proceeds of an offence
Describe the Criminal Proceeds (Recovery) Act 2009
A civil-based process where the crown must prove on the balance of probabilities that wealth and benefits have been accumulated through significant criminal activity
S3 CPA09 - Purpose
S3(1) forfeiture of property;
(a) that has been derived directly or indirectly from significant criminal activity or
(b) that represents the value of a person’s unlawfully derived income
Define tainted property
Means any property that has, wholly or in part, been
- acquired as a result of significant criminal activity or
- directly or indirectly derived from significant criminal activity
Define significant criminal activity
- consists of, or includes, 1 or more offences punishable by a maximum term of imprisonment of 5 years or more or
- from which property, proceeds, or benefits of a value of $30000 or more have, directly or indirectly, been acquired or derived
Define unlawfully benefited from significant criminal activity
S7 - A person has unlawfully benefited from significant criminal activity if the person has knowingly, directly or indirectly, derived a benefit from significant criminal activity (whether or not that person undertook or was involved in the significant criminal activity)
Who has the obligation to notify the court of relevant property
The Prosecutor
What does the assessment process determine?
- the value of the asset
- equity in the asset
- any third party interest in the asset
- the cost of action in respect of the asset
Who applies fore restraining orders
Only members of ARU may apply for restraining orders
Points for suspect interview - money laundering/asset recovery
- suspect’s legitimate income
- suspect’s illegitimate income
- expenditure
- assets
- liabilities
- acquisition of financial records, from banks, financing companies, loan sharks, family trust documents
- clarification of documentary evidence located as per above
What is the primary purpose of the CPA
To establish a regime for the forfeiture of property that has derived directly or indirectly from significant criminal activity; or that represents value of a person’s unlawfully derived income
