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ASSOCIATION Flashcards

1
Q

Provide the elements, section and act for:

  • CONSPIRACY
A 
(Everyone 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 NZ would be an offence

Mulcahy v R (intent + agreement)
R v White (if the identity of the co-conspirator isn’t established, you can still convict one)
R v Sanders - conspiracy is complete when agreement is made with required intent, but remains a conspiracy until action is taken or abandoned

Omission - failure to act, failure to fufill a moral and legal duty
Offence - act punishable on conviction
In any part of the world - S7 CA1961
Prosecution must prove intent to agree, intent to act, agreement made.

Defence - if act / omission not an offence in the place it was committed, can’t be charged in NZ
Can be convicted of conspiring with a spouse (no defence)

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2
Q

Provide the elements, section and act for:

  • ACCESSORY AFTER THE FACT
A

Section 71, CA1961

Everyone who
Knowing any person to have been a party to an offence
Receives, comforts, or assisted that person OR
Tampers with evidence if actively surpasses evidence against him
In order to enable him to escape after arrest OR
to avoid arrest or conviction

R v Mane - to be considered an accessory, acts must come after the offence
R v Crooks - mere suspicion is not enough, the person has to know there has been an offence and that they are assisting
Simmester and Brookbanks - knowing means ..
R v Briggs - wilful blindness
R v Levy - active suppression of evidence
R v Gibbs

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3
Q

Provide the elements, section and act for:

  • RECEIVING
A

Section 246, CA1961

Everyone who
Receives any property, stolen or obtained by any 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

R v Cox - possession has two elements
Cullen v R - elements of possession for receiving
R v Lucinsky - property received must be the property stolen
R v Kennedy - guilty knowledge must exist at the time of receiving
Simmester v Brookbanks - guilty knowledge
R v Cameron - recklessness

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4
Q

Provide the elements, section and act for:

  • PERJURY
A

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 witness’s evidence on oath
Known by the witness to be false and
Intended to mislead the tribunal

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5
Q

Provide the elements, section and act for:

  • MONEY LAUNDERING
A

Section 242, CA 1961

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 money is proceeds of an offence
OR
Being reckless as to whether or note the property is proceeds of the offence

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6
Q

Simmester v Brookbanks

A

Knowing means knowing or correctly believing. Where the belief is wrong, someone can not know something.

(Accessory - knowledge of what the party has done)

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7
Q

R v Crooks

A

Knowledge means actual knowledge or belief in the sense of having no oral doubt that the person assisted was a party to the relevant offence. Mere suspicion of their involvement in the offence is insufficient.

(Accessory - knowledge of what the party has done)

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8
Q

Define party (in the context of criminal offending)

A

Section 66(1) CA1961 - everyone is a party to and guilty of an offence where they

  • commit the offence, or
  • do or omit to do an act that facilitates the commission of an offence, or facilitates another to do it

Any person involved in the offending.

(Accessory)

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9
Q

Define offence

A

Act or omission punishable by conviction under any enactment of NZ law
Demarcated into 4 categories in the Criminal Procedures Act 2011

(Accessory)

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10
Q

Define receives (to receive a person)

A

Harbouring, sheltering (taking someone into your home)

Common law term, R v Gibbs can be used to support

(Accessory)

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11
Q

Define assistance

A

To provide support to.

This is another common law term that encompasses a wide range of activities (driving a car, acting as a lookout, deliberately providing false information to authorities)

(Accessory)

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12
Q

Define comforts (in criminal law context)

A

Harbouring, sheltering, provides with things such as food and clothing

Common law term - R v Gibbs can be used to support

(Accessory)

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13
Q

Define tampering with evidence

A

To alter evidence against the offender.

Example - modifying telephone records of the offender. Common law term - nil case or statutory law

(Accessory)

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14
Q

Define active suppression of evidence

A

Acts of concealing or destroying evidence against the offender.

Example - burning bloodied clothing

R v Levy applies in support

(Accessory)

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15
Q

R v Briggs

A

As with a receiving charge … knowledge may be inferred from wilful blindness or deliberate abstention from making inquiries that would confirm the suspected truth

(Accessory - wilful blindness)

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16
Q

R v Mane

A

To be considered an accessory, the acts done by the person must be AFTER the completion of the index offence

(Accessory - accessory is he who acts after the fact)

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17
Q

R v Gibbs

A

Gibbs hid with a man he knew was a murderer, and provided him with supplies. The court found Gibbs was aiding the offender to evade justice by feeding him, and that it was no defence that the supplies were for Gibbs alone. The case highlights that the acts of the accessory must have helped the index offender evade justice.

(Accessory - receiving, comforting)

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18
Q

R v Levy

A

Levy actively suppressed evidence, in that he acted to remove counterfeiting machinery, knowing the equipment had been used in the commission of an offence and that the offender had been arrested and Levy’s act may help that offender evade justice

The court held in R v Levy that he had done a deliberate act in relation tot he evidence with intent to enable the principle offender to evade justice

(Accessory - active suppression of evidence)

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19
Q

Name defences to accessory after the fact

A
  • the offender was your spouse
  • the offence wasn’t complete (R v Mane)
  • they did not know an offence had been committed (Simmester, Crooks, Biggs)
  • the purpose of what they did was not to help the offender (Gibbs, Levy)
  • there must first be proof the primary offence was committed - as per R v Mane, the defendant is entitled to request proof this is the case, even if the primary offender has been convicted
  • the primary offender has not been charged, convicted or amenable to justice - Section 137 of the Criminal Procedure Act stipulates that even if this is not the case, the accessory can be charged
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20
Q

Provide the elements, section and act for:

  • RECEIVING
A

Section 246, CA1961

Everyone who
Receives any property, stolen or obtained by any 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

R v Cox - possession has two elements
Cullen v R - elements of possession for receiving
R v Kennedy - guilty knowledge must exist at the time of receiving
Simmester v Brookbanks - guilty knowledge
R v Lucinsky - property received must be the property stolen
R v Cameron - recklessness
R v Donnelly

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21
Q

Define person

A

As defined by circumstantial evidence and judicial notice

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22
Q

Define receives

A

Receiving requires that 3 elements be satisfied

  • the property being received was stolen
  • the defendant obtained it from another person
  • the defendant obtained it in the knowledge that it was stolen
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23
Q

Define property

A

Section 2, CA1961

Any real, tangible and personal property, and any estate, right or interest in the property

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24
Q

Define stolen or so obtained

A

Stolen - Section 219(1) CA 1961 - Dishonestly and without claim of right, taking any property with intent to deprive any owner permanently of that property or of any interest in that property.

Obtained - Section 217 CA 1961 - acquired, obtain for yourself or for any other person

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25
Q

Define imprisonable offence

A

Act or omission punishable by a term of imprisonment upon conviction, under any enactment
Demarcated into 4 categories in the Criminal Procedures Act

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26
Q

R v Cox

A

Possession involves two elements - mental and physical. The physical is actual physical custody or control, and the mental element is the combination of knowledge and intention - knowledge that you are in possession, and intention to possess

(Receiving / Wide application - mental and physical elements of possession)

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27
Q

Cullen v R

A

There are 4 elements of possession for receiving

  • awareness of where the item is
  • awareness the item is stolen
  • control of the item (whether actual or potential)
  • intention to exercise control over the stolen item

WSCI - where, stolen, control, intent - it’s all about knowledge and control.

(Receiving - elements of possession that must be satisfied for receiving)

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28
Q

R v Kennedy

A

Guilty knowledge that the thing has been stolen or dishonestly obtained must exist at the time of receiving

(Receiving - guilty knowledge must exist AT THE TIME OF RECEIVING; the prosecution must prove an intent on the part of the receiver to possess the property)

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29
Q

R v Lucinsky

A

The property received must be the property stolen or illegally obtained, and not some other item for which the stolen property had been exchanged

(Receiving - property received must be the property stolen)

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30
Q

What does Section 246(3)of CA 1961 say about when receiving is complete

A

The act of receiving is complete as soon as the offender has possession or control over the stolen property, and has guilty knowledge that the property is stolen

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31
Q

R v Cameron

A

Recklessness means the conscious and deliberate taking of an unjustified risk.

There is a subjective / objective test
Subjective - that they understood the risk, and decided to run it despite the consequences
Objective - that a reasonable person in the same circumstances would not run the same risk

(Tipple also applies)

(Receiving - recklessness)

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32
Q

R v Donnelly

A

Where stolen property has been returned to the owner, it is not an offence to receive it - it has to be legally possible to receive

(Receiving)

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33
Q

Provide the elements, section and act for:

  • CONSPIRACY
A

Section 246, CA 1961

(Everyone 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 NZ would be an offence

Mulcahy v R (intent + agreement)
R v White (if the identity of the co-conspirator isn’t established, you can still convict one)
R v Sanders - conspiracy is complete when agreement is made with required intent, but remains a conspiracy until action is taken or abandoned

Prosecution must prove intent to agree, intent to act, agreement made.

(Conspiracy)

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34
Q

Mulcahy v R

A

A conspiracy exists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act

(Conspiracy - definition of conspiracy is intent + agreement)

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35
Q

R v Sanders

A

A conspiracy does not end with the making of an agreement. The conspiratorial agreement continues in operation, and therefore in its existence, until it is ended by tis completion … or abandonment

(Conspiracy - when a conspiracy ends, ie on action or abandonment)

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36
Q

R v White

A

Where you can prove that a suspect conspired with other parties … whose identities are unknown, the suspect can still be convicted

(Conspiracy)

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37
Q

Is it a defence to conspiracy to say the act was not carried out?

A

No.

A conspiracy is complete when the agreement to offend is made by two or more people, with the requisite intent

(Conspiracy)

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38
Q

Is it a defence to conspiracy to say that, because the primary parties are unknown or unidentified, you can’t be charged?

A

No.

R v White applies.

Where you can prove that a suspect conspired with other parties … whose identities are unknown, the suspect can still be convicted

(Conspiracy)

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39
Q

Is it a defence to conspiracy if your co-conspirator was your spouse?

A

No.

Section 67, CA 1961

A person is capable of conspiring with his or her spouse or civil union partner

(Conspiracy)

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40
Q

Define omission

A

A failure to act, excluding or leaving something out, a failure to fulfil a moral and legal duty

(Conspiracy)

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41
Q

What does Section 7 of CA 1961 say about offences in any part of the world

A

‘Where any act or omission forming part of any offence … occurs in NZ, the offence shall be deemed to be committed in NZ, wether or not the person charged with the offence was in NZ or not at the time of the act, omission or event’.

If the action is not an offence under the law in the place where it was to be committed, it is not an offence

(Conspiracy)

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42
Q

Provide the elements, section and act for:

  • PERJURY
A

Section 108, 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 witness’s evidence on oath
Known by the witness to be false and
Intended to mislead the tribunal

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43
Q

What is a judicial proceeding

A

Evidence given in NZ, and within NZ jurisdiction

EG Court of Justice, House of Reps, a Legal Tribunal.

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44
Q

Define the following terms

  • fact
  • opinion
  • belief
  • knowledge
A

Fact - a thing done, an actual occurrence or event

Opinion - a statement of opinion to prove or disprove a fact - Evidence Act 2006

Belief - a subjective feeling regarding the validity of ideas or facts

Knowledge - knowing or correctly believing - Simmester and Brookbanks

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45
Q

Define assertion

A

Something declared or stated

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46
Q

Section 4 of the Evidence Act recognises 3 was of giving evidence, what are they

A
  • in the ordinary way set out in S83 - personally in court or by affidavit
  • in al alternative way as set out in S105 - CCTV, DVD, screen etc
  • in nay other way provided for by the Act or any other enactment
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47
Q

Section 4 of the Evidence Act recognises 3 was of giving evidence, what are they

A
  • in the ordinary way set out in S83 - personally in court or by affidavit
  • in an alternative way as set out in S105 - CCTV, DVD, screen etc
  • in any other way provided for by the Act or any other enactment
48
Q

Define Oath

A

A declaration before someone with the authority to a administer an oath. It includes affirmation and declaration.

49
Q

When is the offence of perjury complete

A

When a false statement is made with intent to mislead.

It is not a defence to recant a false statement later in proceedings.

50
Q

If a witness gives evidence in court that contradicts a previous statement they have made, and perjury is suspected, does this evidence need to be corroborated?

A

Yes.

Section 121 of the Evidence Act states that it is necessary for evidence to be corroborated in cases of perjury, false oaths/statements/declarations and treason, otherwise people may become discouraged from giving evidence

51
Q

Where in the Crimes Act do you find the offences for false statements?

A

110 - False Oath
111 - False statement
112 - Evidence of perjury
113 - Fabricating evidence

52
Q

Taylor v Manu

R v Cleland

A

If perjury is suspected, there must be corroboration - a false statement without confession is not sufficient evidence to establish perjury

The requirement for corroboration in cases of perjury is covered in the 121 Evidence Act also.

53
Q

R v Goodyear and Smith

A

To be guilty of perjury, a witness must make a wilfully false statement about something they believe is of importance to the proceeding

54
Q

For the purposes of the liability for Accessory After the Fact, how is Party defined in the Crimes Act? What are the elements?

A

Party - s661(1), CA 61
Defined as being anyone who

a) Actually commits the offence
b) Does or omits an act for the purpose of aiding any person to commit the offence
c) Abets any person in the commission of the offence
d) Incites, counsels, or procures any person to commit the offence

55
Q

Receiving - when is receiving complete according to the Crimes Act

A

Receiving is 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,

s246(3), CA 1961

56
Q

When is a conspiracy deemed to be completed

A

The offence is complete on the agreement being made, accompanied by the required intent.

it must be proved that there was intent to agree, intent to pursue a course of conduct, and the action of agreement

57
Q

In what situation could someone conspiring outside of NZ be charged with conspiracy in NZ courts?

A

If they were later physically present in NZ and there act in continuance of the conspiracy.

58
Q

What is the exception to the hearsay rule in regards to the admissibility of evidence for a Conspiracy charge? What effect does this have on how people should be charged?

A

Anything a conspirator or party to a joint charge says or does to further the common purpose is admissible against the others involved. Therefore conspirators should be jointly charged.

59
Q

What five points should be covered when interviewing conspiracy suspects?

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
  • 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

agreement, intent, identity, evidence

60
Q

What are three groups of offences where you cannot charge with an attempt?

A

Offences where:

  • the criminality depends on recklessness or negligence, eg. manslaughter
  • an attempt to commit an offence is included within the definition of that offence, eg. assault
  • the offence is such that the act has to have been completed in order for the offence to exist at all. Eg. Demanding with menaces (it is the demand accompanied by menace that constitutes the offence)
61
Q

What are the 3 elements that must be satisfied to prove an attempt

A
  • 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 (R v Harpur)
62
Q

What is the Crimes Act definition of an attempt

A

s72(1), CA 1961
Everyone who, having an intent to commit an offence, does or omits an 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.

63
Q

Summarise the case law that is significant when considering the issue of inferring intent from an act.

A

R v Ring
In this case the offender’s intent was to steal property by putting his hands 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.

64
Q

Explain the rule used to decide whether a defendant’s actions are sufficiently proximate.

A

Effectively the defendant must have started to commit the full offence and have gone beyond the phase of mere preparation - this is the “all but” rule.

65
Q

R v Harpur

A

The Court may have regard to the conduct viewed cumulatively up to the point where 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.

66
Q

Briefly outline the three pieces of case law in relation to an act being physically or factually impossible.

A

R v Ring - put his hand in the pocket of a woman but there was nothing to be stolen

Higgins v Police - cultivated plants that weren’t cannabis so attempted to cultivate cannabis

Police v Jay - bought hedge clippings thinking they were cannabis

67
Q

Outline the role of judge and jury in regards to Attempts.

A

Judge must decide whether defendant has left preparation stage and was already trying to effect completion of the full offence. If the Judge decides that the defendant’s actions were more than mere preparation, the case goes to jury.

Jury decides whether the facts presented by Crown have been proved beyond reasonable doubt, and then whether defendant’s actions are close enough to the full offence and whether the defendant intended to commit the full offence.

68
Q

What is the penalty for attempts

A

If max punishment is life = 10yrs

Everything else = half max punishment

69
Q

In each case of charging a person with being a party to an offence, what needs to be proved?

A
  • Identity of the defendant
  • An offence has been successfully committed
  • The elements of the offence (s66(1)) have been satisfied
70
Q

When must participation have occurred for someone to be considered a party to an offence?

A

Before or during the commission of the offence and before the completion of the offence

71
Q

What does R v Pene say about what someone must do to be liable for being a party to an offence

A

A party must intentionally help or encourage - it is insufficient if they were reckless as to whether the principal was assisted or encouraged.

72
Q

Summarise R v Renata

A

Three offenders beat the victim to death in the car park of a tavern. The prosecution was unable to establish which blow was the fatal one or which of the three offenders administered it.

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).

73
Q

Does a principal offender have to be aware that they are being assisted by a party?

A

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.

74
Q

Define ‘aid’ in the context of party to an offence.

A

To assist in the commission of the offence, either physically or by giving advice and information.

75
Q

Define ‘abet’ in the context of party to an offence.

A

To instigate or encourage; to urge another person to commit the offence.

76
Q

Define ‘incites’ in the context of party to an offence.

A

To rouse, stir up, stimulate, animate, urge or spur on a person to commit the offence.

77
Q

Define ‘counsel’ in the context of party to an offence.

A

To intentionally instigate the offence by advising a person on how best to commit an offence, or planning the commission of an offence for another person. May also mean urging someone to commit an offence (overlap with incitement).

78
Q

Define ‘procure’ in the context of party to an offence.

A

Setting out to see that something happens and taking the appropriate steps to ensure that it does.

79
Q

Summarise what was set out in R v Betts and Ridley

A

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.

80
Q

What does Section 66(2) say about liability for the actions of a co-offender?

A

Section 66(2)

Where two 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.

81
Q

Mere presence at the scene of an offence does not create liability on the part of the bystander. What are the two exceptions?

A

Special relationship and legal duty

82
Q

Outline the penalties for Accessory After the Fact.

A

If max penalty is life = max 7yrs
If max penalty is 10+yrs = max 5yrs

Everything else = max half the max punishment for that offence

83
Q

What needs to be proved to convict on a charge of Accessory After the Fact?

A
  • That the person who is received, comforted or assisted by the accessory is a party to an offence that has been committed.
  • That, at the time of receiving, comforting or assisting that person, the accessory knows that person was a party to the offence.
  • That the accessory received, comforted or assisted that person or tampered with or actively suppressed any evidence against that person.
  • That at the time of receiving, comforting or assisting etc. the accessory’s purpose was to enable that person to escape after arrest or to avoid arrest or conviction.

Received a party, knew they were a party at the time, that the offender provided assistance etc, that the purpose of this assistance was to help the principal evade justice

84
Q

Can you be charged as an accessory if you aid your husband/wife

A

71(2) You can’t be charged with being an Accessory to your spouse, or your spouse and another party (if they’ve worked in concert). Applies to civil unions.

85
Q

An Accessory must perform at least one of 5 certain acts to be liable of the charge, what are they

A
  • Receives
  • Comforts
  • Assists
  • Tampers with evidence
  • Actively suppresses evidence
86
Q

True or false? It is possible to be convicted of attempting to be an accessory after the fact

A

True

87
Q

What are the three possible intents of an Accessory?

A

To enable the offender to

  • escape after arrest
  • avoid arrest
  • avoid conviction
88
Q

True or false? A person can be convicted as an Accessory After the Fact where the offender has been acquitted of the offence.

A

True

89
Q

Give 5 examples of assisting in the context of Accessory After the Fact.

A
  • providing transport
  • acting as a lookout
  • identifying purchaser for stolen property as a receiver
  • deliberately providing authorities with false info as to offender’s whereabouts
  • giving advice, info, material or services to offender
90
Q

What is the primary difference between a party to an offence and an accessory after the fact?

A

A party is involved in before or during commission of the offence; accessory is involved after the principal offence has been committed.

Party - before, think P for Pre
Accessory - after, think A for After

91
Q

What are the two main points to be covered when interviewing a suspect in respect of perjury?

A
  • Whether the suspect knew their assertion was false AND

- Whether they intended to mislead the tribunal governing proceedings

92
Q

Outline the penalties for Receiving.

A

Value $1,000+ = max 7 yrs
$500-1,000 = max 1 yr
Less than $500 = max 3 mths

93
Q

What three elements need to be satisfied for the act of receiving?

A
  • There must be property which has been stolen or has been obtained by an imprisonable offence
  • The defendant must have received that property, which requires that the receiving must be from another (you cannot receive from yourself)
  • The defendant must receive that property in the knowledge that it has been stolen or illegally obtained, or being reckless as to that possibility

Property - received - knowingly.

94
Q

When is the act of receiving complete?

A

Once the defendant has had possession or control of the property OR has assisted in its concealment or disposal, and had guilty knowledge at the time

95
Q

Give 2 ways that possession of property can be established in a charge of receiving

A

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 or business or private residence)
96
Q

Explain the doctrine of recent possession.

A

It is the presumption that, where the defendant acquired possession willingly, the proof of possession by the defendant of 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 or has committed some other offence associated with the theft of the property (eg. burglary, robbery).

97
Q

Explain 3 ways title can be voided

A
  • Communicating directly with the receiver
  • Taking all reasonable and possible steps to bring it to the deceiver’s notice (eg. letter, email)
  • Advising police of the circumstances of the deception
98
Q

Define the term money laundering.

A

The process of dealing with the proceeds of criminal activity in such a way as to make the proceeds appear to have been legitimately acquired.

99
Q

Give the elements of money laundering.

A

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

100
Q

What is the purpose of the Criminal Proceeds (Recover) Act 2009?

A

To establish a regime for the 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

101
Q

What is a qualifying instrument forfeiture offence?

A

a) Means an offence punishable by a maximum term of imprisonment of 5 years or more AND
b) Includes an attempt to commit, conspiring to commit, or being an accessory to an offence if the maximum term of imprisonment for that attempt, conspiracy or activity is 5 years or more.

102
Q

What is the definition of ‘significant criminal activity’ under s6, CP(R)A?

A

Significant criminal activity means an activity engaged in by a person that if proceeded against as a criminal offence would amount to offending
a) that consists of or includes one or more offences punishable by a maximum term of imprisonment of 5 years or more OR

b) from which property, proceeds or benefits of a value of $30,000 or more have, directly or indirectly, been acquired or derived.

103
Q

What is the definition of ‘tainted property’ in s5, CP(R)A?

A

a) means any property that has, wholly or in part, been
i) acquired as a result of significant criminal activity or
ii) directly or indirectly derived from significant criminal activity and

b) includes any property that has been acquired as a result of, or directly or indirectly derived from, more than one activity if at least one of those activities is a significant criminal activity.

104
Q

How long is a restraining order in relation to an Instrument of Crime valid?

A

One year from the date on which the order is made, thought the Court may issue extension before the expiry for another year.

105
Q

What points need to be considered when interviewing a suspect about money laundering?

A
  • 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
106
Q

List four points to cover when interviewing a witness for Conspiracy.

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
107
Q

List examples of circumstances commonly relied on as evidence of guilty knowledge on the part of a receiver.

A
  • possession of recently stolen property
  • nature of the property
  • purchase at gross undervalue
  • secrecy in receiving property
  • receipt of goods at unusual place
  • receipt of goods at unusual time
  • receipt of goods in unusual way
  • concealment of property to avoid discovery
  • removal of identifying marks/features
  • steps taken to disguise property
  • lack of original packaging
  • type of person goods received from
  • mode of payment
  • absence of receipt where one would usually be issued
  • false statements as to the source of the goods
  • false statement as to date of acquisition
  • nature of explanation given, eg, false/inconsistent
  • false denial of knowledge/existence
108
Q

According to s7, Criminal Proceeds (Recovery) Act 2009, what is the meaning of unlawfully benefited from significant criminal activity?

A

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).

109
Q

Under s55, Criminal Proceeds (Recovery) Act 2009, when must the High Court make a profit forfeiture order?

A

…if it is satisfied on the balance of probabilities that
a) the respondent has unlawfully benefited from significant criminal activity within the relevant period of criminal activity and

b) the respondent has interests in the property.

110
Q

Who may apply for restraining orders (apart from those relating to instruments of crime), assets forfeiture orders and profit orders?

A

Only members of the Asset Recovery Unit.

The Commissioner of Police can apply for restraining orders, asset forfeiture orders and profit orders but delegates the application of restraining orders for instruments of crime to ARU

The ARU will determine the value, equity of, and who has interest in the asset.

111
Q

Explain the three stages of the Money Laundering Cycle.

A

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

112
Q

Give five reasons why it is undesirable to lay both a substantive charge and a related conspiracy charge.

A
  • The evidence admissible only on the conspiracy charge may have a prejudicial effect in relation to other charges
  • The judge may disallow the evidence as it will be too prejudicial
  • The addition of a conspiracy charge may unnecessarily complicate and prolong a trial
  • Where the charge of conspiracy is not founded on evidence or is an abuse of process it may be quashed
  • Severance may be ordered.
113
Q

Name 3 things which would make you party to an offence

A

committing the offence
doing or omitting an act to aid someone else to offend
aiding, abetting or assisting someone in the commission of an offence
inciting, counselling or procuring someone to offend

114
Q

Define voidable title

A

Title obtained by fraud/misrepresentation/deception

115
Q

Give 3 examples of instruments of crime

A

Property used to commit offending
Funds used to offend
Proceeds of property used to offend

116
Q

If an instrument of crime (eg property) is to be restrained while court proceedings take place, what must be done

A

Apply to the High Court and state that the defendant has been charged with a qualifying offence of there are RGTB they will be within 48 hours, and there are RGTB the property/asset/instrument etc to be restrained was used to commit the offence

117
Q

What is a conspiracy?

A

It is two or more people forming an agreement to do an unlawful act, or to do a lawful act by unlawful means.
(where there is only the intention to commit the offence without an agreement, then no offence is committed)

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