Association Flashcards
Conspiracy section 310(1)
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
Defines conspires
Two or more people forming an agreement to do an unlawful act or a lawful act by unlawful means
R v Mulcahy
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 (intended offence) into effect, the very plot is an act in itself
Can a conspiracy involve an omission?
Yes. It can be an agreement between the parties not to act. For example a security guard deliberately leaving a door unlocked that he would normally secure so that his associates could burgle the place
Can you withdraw from an agreement?
No. Once the agreement is made with the required intent the conspiracy is complete. If you don’t agree to it in the first place and withdraw that’s algood
When is a conspiracy complete?
Once the agreement is made with the require intent
R v Sanders (when a conspiracy ends)
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 it’s performance or abandonment or in any other manner by which agreements are discharged
What is the mens Rea and Actus Reus for an agreement?
Actus Reus: Actual agreement
Men’s Rea: an intention of those involved to agree and an intention that those involved in the agreement are going to pursue the relevant course of conduct
What are some things that can help prove the Actus Reus of an agreement?
Physical acts, words or gestures, whether express or implied
A verbal agreement, there is no need for them to have made a decision on how they will actually commit the offence
R v Collister
Intent can be inferred by:
-the offenders actions and words before during and after the event
-the nature of the act
-the surrounding circumstances
R v White
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
Section 67 of the crimes act
A person is capable of conspiring with her or her spouse or civil union partner or wis his or her spouse or civil union partner and any other person
What is the difference between offence and crime?
Nothing. They’re basically the same and are described as any act or omission that is punishable on conviction under any enactment, and are demarcated into four categories described in section 6
Define omission
The action of excluding or leaving our someone or something, a failure to fulfil a moral or legal obligation
R v sanders (jurisdiction)
It was deemed sufficient if one act or omission forming part of the offence or any event necessary to the completion of any offence occurs in NZ
Jurisdiction in relation to conspiracy
It is an offence not only to conspire to commit an offence in NZ, but also to conspire to do or omit in any part of the world, if doing that thing or omitting would be an offence in NZ.
What is a defence to the charge of conspiracy under section 310?
If a person conspires to commit an act overseas that is an offence in NZ but it is not an offence in the other country they cannot be prosecuted.
R v Darwish
If the conspiracy is made between two parties, one in NZ and one elsewhere the courts will likely take the view that the conspiracy was formed in both countries simultaneously
What are the two points in relation to admissibility of evidence for a conspiracy
- Anything a conspirator or joint party to a joint charge says or does to further the common purpose is admissable against the other involved, this being an exception to the hearsay rule and as such conspirators should be jointly charged.
- however explanations made after the common purpose is carried out, this can only be used as evidence against the person making it
When interviewing witnesses for conspiracy what should their statements contain
Identity of people present at the time of the agreement
With who the agreement was made
What offence was planned
Any acts carried out to further the common purpose
What should you ask a suspect in relation to a conspiracy
Intent of those involved in n the agreement
Identity of the all people
Whether anything was written, said or done to further the common purpose
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
What are the three elements of an attempted offence
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
It also must be legally possible to commit the offence in the circumstances. A person. Can be convicted if the offence was physically impossible to commit
When can you not charge someone with an attempt?
-Where the offence invoves negligence or recklessness (manslaughter)
-an attempt is included in the definition (assault)
-the offence is such that the act has to have been completed for the offence to exist at all, demands with menace
What are two examples of offences where an attempt isn’t relevant?
Manslaughter and assault with intent to commit sexual violation
R v ring
Offender intended to steal property from the victims pocket, put his hand in and there was nothing in there. This qualifies as an attempt even though the theft wasn’t actually possible
Actus reus in attempts
Does or omits an act for the purpose of accomplishing his object
Examples of acts that might constitute as an attempt
-lying in wait, searching for or following the contemplated victim
-enticing the victim to go to the scene of the contemplated crime
-recon of the scene of the contemplated crime
-unlawfully entering a structure, vehicle or enclosure in which it is contemplated that the crime will be committed
-possessing, collecting, or fabricating materials to be employed in the commission of the crime
-soliciting an innocent agent to engage in conduct constituting an element of the crime
R v Harpur
The court may have regard to the conduct viewed cumulatively up to the point when the conduct in question stops. How much remains to be done is always relevant, though not determinative
What question do you ask yourself in relation to proximity
Do the facts show mere preparation, or are the defendants acts or omissions immediately or sufficiently proximate to the intended offence
What are the two questions you ask when doing the proximity test?
-has the offender done anything more than getting himself into a position from which he could embark in an actual attempt? OR
-has the offender actually commenced execution, has he taken a step in the actual crime itself?
Who decides proximity?
A judge because it is a question of law decided based on the assumption that the facts of the case are proved
What are the four elements that help determine proximity
Fact
Degree
Common sense
Seriousness of the offence
Define impossbility
Impossbility refers to the offence being physically impossible to commit. They cannot be convicted if an offence was legally impossible to commit
What are the three case laws in relation to a physically or factually impossbility
R v Ring
Higgins v Police
Police v Jay
Higgins v Police
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 theboffnecenof attempting to cultivate cannabis
Police v Jay
A man brought hedge clippings believing they were cannabis
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?
Once they do an act or omit an act that is sufficiently proximate to the intended offence. If they back out after that is complete the attempt is still complete
Once the acts are sufficiently proximate, what are three things that aren’t a defence
-were prevented by some outside agent from doing something that was necessary to complete the offence
-failed to complete the full offence due to ineptitude, inefficiency or insufficient means
-prevented from committing the offence because an intervening event made it physically impossible
What is the function of the judge and jury for an attempt?
The judge decides if the defendant left mere preparation
The jury decides whether the facts presented are proved beyond reasonable doubt and, if so, must next decide if the defendants acts are close enough to the full offence. They must believe beyond reasonable doubt the actues reus and mens Rea are present
When filing charges for an attempt can the defendant be convicted of the full offence?
If the defendant is charged with the full offence, butbif found guilty of only the attempt they can be convicted of the attempt
Where a defendant is charged with an attempt, yet the full offence is proved the defendant can only be convicted of the attempt
If there is no express punishment for an attempted offence, what is the punishment?
If the sentence for the offence is life imprisonment it is no more that 10 years then anything else is no more than half of the sentence of imprisonment for anything else
What must you prove in a case of an attempt?
Identity of the suspect
They intended to commit an offence
They did, or omitted to do, something to achieve their objective
And those acts are sufficiently proximate to the offence and progressed passed mere preparation
Section 66(1)
(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
Section 66 (2)
Where 2 or more people 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 probable consequence of the prosecution of the common purpose
What do you need to prove when charging someone as a party?
The identity of the defendant AND
An offence has been successfully committed AND
The elements of the offence have been satisfied
When someone is a party to an offence, when must participation occur?
Before or during the offence and before the offence is complete
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
What is the difference between the principal or secondary offender
Principal is the person who commits the offence and secondary is the person whos assistance, abetment, incitement, counselling or procurement if sufficient
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 if the ways contemplated by section 66(1)
Does a party to an offence need to be present when the offence is committed?
No, they can do something like leaving a door unlocked
Define aids
To assist in the commission of an offence, either physically or by giving advice or information
R v Turanga
The presence at the scene is not a requirement for any form of secondary participation. The central question in any case is whether the accused did in fact help the principal party
Does the principal party need to be aware the secondary party is helping them?
It’s not always necessary, the principal party also doesn’t need to agree to the assistance
Larkin’s v Police
While it is not necessary that the principal should be aware that he or she is being assisted, there must be proof of actual assistance
What are some examples of assistance?
Keeping lookout for someone committing burglary
Providing a screwdriver to someone interfering with a motor vehicle
Telling an associate when a neighbour is away from their home so as to allow the opportunity to commit burglary
Can you aid by omission?
Liability for aiding by omission will arise where A , who has a legal duty to act and a right or power of control over B, fails to observe or discharge the duty by exercising the control to prevent B committing and offence
Define Abets
To instigate or encourage. You do not need to be present at the scene to do this
In r v loper and r v Makita what was the rule about presence and encouragement
Mere presence that does not provide encouragement is insufficient to ‘abet’. However deliberate presence intended to signify approval of the acts of the principal will support an inference of encouragement in fact
Ashton V Police
An example of a secondary party owing a legal duty to third person or to the general public is a person teaching another person to drive. The person is, in NZ, under a legal duty to take reasonable precautions, because under s156 of the CA 1961 he is deemed to be in charge of a dangerous thing
When may passive acquiescence be considered abetting
In the circumstances there is a special relationship between the person and the principal offender or where they owe a legal duty to the victim or to the general public
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 yo his wife’s acts he became an aider and abettor and thus a secondary offender
Define incite
To rouse, stir up, stimulate, animate, urge or spur on a person to commit an offence
Define counsels (in relation to parties)
Intentionally instigate the offence by advising a person’s on how best to commit an offence, or planning the commission of an offence for another person. Can also mean urging and can overlap with incites
Define procures
Setting out to see that something happens and taking the appropriate steps to ensure that it does.
The secondary party deliberately causes the principal party to commit the offence. Stronger connection than in aiding, abeting or inciting
Define common intention
Where two or more offenders form a common intention and embark on a joint enterprise together (commit an offence) all who entered into the agreement can be charged as parties to that offence.
They can also be charged if the other person commits another offence which is a probable consequence of the prosecution of the common purpose
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 for the violence used
What is a question of fact?
Something the jury must decide in relation to if the defendant knew that furthering their aim in a particular way would result in another of the parties committing a particular offence
What are the two qualifications in the general rule for probable consequence?
1: there is no requirement that person A knows or forsees the precise manner which offence B is to be committed by person B. Person A need only realise that an offence of that type is probable
2: there is no requirement that person As foresight of offence B include any appreciation of the consequence of the physical elements of the offence committed, but for which no mens Rea element is required
When is a party to murder guilty of murder?
When they
- intentionally helper or encouraged it
-foresaw murder by a confederate, as a real risk in the situation that rose
When is a party to manslaughter guilty of manslaughter?
Knew that at some stage there was a real risk of killing short of murder
Foresaw a real risk of murder, but the Killing occured in circumstances different from those contemplated
Can be expected to have known there was an ever-present real risk of killing
What is an innocent agent?
Where the offender uses someone to do the act which commits an offence without the person knowing. For example putting poison in a wine glass and giving it to the waiter to give to the intended victim. The innocent agent cannot be charged as a party
How do you establish involvement of parties?
-a reconstruction - may indicate they had help
-principal offender saying they had help
-someone else admitting they helped
-someone witnessing another person’s involvement
-receiving information that other people were involved
What was held in r v Hartley in relation to an accomplice
That an accomplice can be convicted of a lesser offence than the principal offender. In the case of a gang shooting an accomplice could be convicted of manslaughter and the principal offender could be convicted of murder
When filing a charge under section 66(1) what is the charge wording?
The same as for the principal offender however preface the charge words with ‘was party to’.
At the end of the charge add ‘in that you did aid, abet, incite counsel or procure in the commission of the said offence
It is not legally necessary to refer to section 66 in the charge however, when must the prosecutor advise the court the defendant is charged as a party?
Before;
the summary of facts is read out on a guilty plea
Evidence is heard in a judge alone trial
What is the punishment if you are parties to an attempted offence?
The same as the punishment for the attempted offence
What is the difference between aiding and abetting and inciting, counselling and procuring?
In general terms aiding and abetting requires presence at the scene and the other three are actions taken before the offence is committed
What is the punishment for AATF
Life= 7 years
More than 10 years = 5 years
Anything else no more than half
When was the spouse/civil union partner exception changed?
2019
With AATF what status does the primary offence need to be?
The primary offence needs to be complete
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
What knowledge must the accessory possess at the time they’re giving assistance
An offence has been committed AND
The person they’re assisting was a party (principal or secondary) to that offence
R v Briggs
As with a receiving charge under section 246(1), knowledge may also be inferred from wilful blindness or a deliberate abstention from making inquiries that would confirm the suspected truth
When is a person considered wilfully blind?
-where the person deliberately shuts their eyes and fails to inquire; this is because they knew what the answer would be
-in situations where the means if knowledge are easily at hand and the person realise the likely truth of the matter but refrains from inquiring in order not to know
What is the Actus reus of AATF
They must do a deliberate intentional act such as;
-receives
-comforts
-assists
-tampers with evidence
-actively suppresses evidence
For the purpose of assisting the person to
-escape after arrest
-avoid arrest
-avoid conviction
R v mane
To be considered an accessory the acts done by the person must be after the completion of the offence
The person was charged with AATF after the victim had been shot but before they died. The crown withdrew the charge and charged with something else
what is an example of receiving or comforting or assisting
Receiving :Hiding them in a basement etc
Comforting: providing food and clothing
Assisting: acting as a lookout, providing transport
What’s an example of tampers with evidence and actively suppresses evidence
Tampers: modifying an offenders telephone records to conceal communications that might implicate them
Actively suppresses: concealing or destroying evidence. Bloodied clothing is washed repeatedly to remove evidence or set it alight
In relation to destruction of evidence what needs to be proved?
The test is whether what was tampered with or suppressed ‘could’ be evidence. It doesn’t need to be proved that it in fact would have been evidence
Can you be charged with attempting to be an accessory
Yes. In R v DH the appellant was charged with AATF for murder by unsuccessfully trying to dispose of weapon in a fatal robbery
Is there a requirement that the offender is directly assisted by the accessory?
No. They can assist person B
When someone uses an innocent agent by an accessory who is liable for the actions?
The actions of the innocent agent will be the held to be the actions of the accessory
What must the accessories intent be?
Enable the offender to
Escape after arrest
Avoid arrest
Avoid conviction
They must intend that their actions help the offender.
Mere knowledge that an act is likely to help an offender is insufficient in itself
In relation to AATF, what needs to be proven In relation to the primary offence?
The AATF is entitled to request that there is proof the principal offence was committed and to challenge that proof.
This also applies when the offender is convicted or has pleas guilty to the principal offence
When can you charge someone as being an accessory after the fact when they have received goods dishonestly obtained?
Where receiving those goods is done with a view of helping the offender and enabling them to evade justice
Define formal statement
A statement that is to be treated as evidence on oath given in a judicial within the meaning of section 108 CA 1961
What is the punishment for perjury?
7 years excluding sub section 2
Section 109 subsection 2
Perjury committed to get someone convicted of an offence with punishment over three years, the punishment for the perjury is a maximum of 14 years
Penalty for false oaths
Max 5 years
False declaration penalty
3 years
Section 112 CA 1961
No one can be convicted of perjury, false oath, or false statement on the evidence of one witness only unless their evidence is corroborated by a material particular
Penalty for fabricating evidence
7 years
What are the 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 witnesses evidence on oath
Known by that witness to be false AND
Intended to mislead the tribunal
What is a witness?
A person who gives evidence and is able to be cross examined in a proceeding. It includes someone who is giving evidence, previously gave evidence or will give evidence
What is an assertion?
Something declared or stated positively
Opinion evidence by lay witnesses
A witness may state an opinion in evidence in a proceeding if that opinion is necessary to enable the witness to enable the witness to communicate, or the fact finder to understand, what the witness saw, heard, or otherwise perceived
Define belief
A subjective feeling regarding the validity of an idea or set of facts. It is more than suspicion and less than knowledge
Define knowing
Knowing means correctly believing
Can you be charged with perjury of you give evidence via AVL from another country
Yes because remote participation is considered as taking place at the hearing. This means it’s within NZ jurisdiction
Modes of giving evidence?
Personally in court or by affidavit
In an alternative ways such as cctv DVD screens etc
In any other way provided for under this act or any other enactment
Difference between oath, affirmation and declaration
Oath: religious stuff
Affirmation: confirmation of truth without religion
Declaration: witness under 12 promise to tell the truth
When is the offence of perjury complete?
At the time the false evidence is given and accompanied by the intention to mislead the tribunal
What happens if someone gives false evidence and then changes their mind and tells the tribunal it’s false
Nothing, they’re still liable for perjury
When is corroboration required?
Corroboration is only required when someone is charged with perjury, false oaths and false statements or declarations and treason
Why does perjury need corroboration
Don’t want to make it too easy to prosecute for perjury, this may discourage people from giving evidence
Section 116
Conspires to obstruct, prevent, pervert or defeat the course of justice
7 years
Examples of defeats the course of justice
Doing something with intent that proceedings don’t take place
Discourage a victim from pursuing a complaint
What are examples of misleading justice
Preventing a witness from testifying
Wilfully going absent as a witness
Threatening or bribing a witness
Arranging a false alibi
Corrupting juries and witnesses
Persuades or attempts to persuade by threats or bribes or other corrupt means
Influences or attempts to influence
Accepts a bribe to abstain from giving evidence
Accepts a bribe on account of his conduct on a jury
When commencing a prosecution for perjury who should you get permission from?
Recommended by the courts or directed to do so by the commissioner. You can begin inquiries into it without permission though
What are the two ways complaints of perjury arise?
- 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
What should a judge do when there is no corroborating evidence of perjury?
Stop the case at the close of the prosecution case and direct an acquittal
What charge encompasses both civil and criminal proceedings?
Conspiring to defeat the course of justice
What are the two main points to be covered when interviewing a suspect for perjury?
Whether the suspect knew their assertion was false
Whether they intended to mislead the tribunal governing proceedings
What are the punishments for receiving?
Over $1000: 7 years
$500 - $1000: 1 year
Under $500: 3 months
What are the elements of receiving?
Act of receiving
Any property stolen OR
Obtained by any other imprisonable offence
Knowing that at the time of receiving the property that it had been stolen or obtained by any other imprisonable offence OR
Being reckless as to whether or not the property was stolen or so obtained
When is the act of receiving complete?
As soon as the offender has possession or control over the property or helps concealing or disposing of it
R v cox
Possession involves two elements. Actual or potential physical control. Mental possession which is a combination of knowledge and intention
Cullen v R
Four elements of possession for receiving
- Awareness that the item is where it is
- Awareness that the item has been stolen
- Actual or potential control of the item
- An intention to exercise control over that item
When the property is at a place, what do you need to prove in relation to the receivers control over the property?
The receiver arranged for it to be there, or that they discovered the property and intentionally exercised control over it.
Does the doctrine of recent possession apply in cases of assisting in disposal or concealment of stolen property?
No
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
Do you need to prove dishonesty in relation to receiving?
There is conflicting caselaw around this. R v Crooks held that there is an implied requirement that the accused act with a dishonest intention. People who knowingly receive stolen property with the sole unconditional intention of returning it to the lawful owner or to police commit no offence
R v lucinsky
The property receives 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
Does receiving include receiving money obtained from selling drugs?
Yes the money has been obtained by dishonest means
R v Kennedy
The guilty knowledge that the thing has been stolen or dishonestly obtained must exist at the time of receiving
What happens if someone obtains property that is stolen but doesn’t know, then they find out that it’s stolen they keep it?
They would be guilty of theft by dishonestly dealing with the property. They can’t be guilty of receiving because they did not have the knowledge at the time they obtained the property
R v cameron
Recklessness is established if;
The defendant recognized that there was a real possibility that his or her actions would bring about the proscribed result and/or
That the prescribed circumstances existed and having regard that risk those actions were unreasonable
What are some examples of circumstantial evidence of guilty knowledge in receiving matters
Possession of stolen property
Purchase at a gross undervalue
Secrecy in receiving the property
Receipt of goods at an unusual place or time
Mode of payment
Unusual packaging
Can the original thief be called to give evidence against the receiver?
Yes, as long as they’re being tried separately or the proceedings against the thief have been determined or concluded
what is the doctrine of recent possession ?
Where the person is found in possession of stolen property reasonably soon after the theft, an inference may be drawn that the person in possession either stole the property or received it from the thief
What are the two point that determine whether possession of property is recent
The nature of the property and the surrounding circumstances
If police watch stolen property but don’t interfere with it does this mean police have inspected and restore the property?
No, therefore the property will still be technically stolen. However if police do something like making a vehicle immobile it may constitute as police taking possession
What happens to the receiver if they receive the property stolen on order
They are liable for receiving and as a party to the principal offence
Is receiving property obtained outside NZ an offence?
If the property was obtained by an offence that would be an imprisonable offence in NZ and the receiving was done in NZ then yes.
It will be presumed that the act by which the property was obtained is an offence under the law of the place it was committed unless the defendant brings the matter up as an issue
Who can be charged as a party to receiving?
The thief of the property who hands over the property to the receiver
How does property get restored as no longer being stolen
Police act as an an agent or it is returned directly to the owner
How to dou avoid title?
Communicate directly with the deceiver
Take all reasonable steps possible to bring it to notice of the deceiver
Advise police of the circumstances of the deception
What is money laundering
Dealing with the proceeds of criminal activity in such a way as to make the proceeds appear to have been legitimately acquired
What are the three stages of the money laundering cycle?
Placement, layering and integration
What is an example of placement (first stage of money laundering cycle)
Cash enters the financial system e.g. drug dealer deposits proceeds into an associate’s bank account
What is an example of layering (second stage of money laundering cycle)
Money is involved in a number of transactions. The associate transfers the money into a shell company that the offender is a director of
What is an example of integration (third stage of money laundering cycle)
Money is mixed with lawful funds or integrated back into the economy appearing legitimate.
The money is declared as revenue, tax is paid and then the offender pays himself director fees or a salary
What are the four elements of money laundering?
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 proceeds or an offence OR
being reckless as to whether or not the property is proceeds of an offence
What does conceal mean in relation to money laundering?
To conceal or disguise the property such as to convert the property from one form to another OR to conceal of disguise the nature, source, location, disposition, or ownership of the property
What does ‘deal with’ in relation to money laundering mean?
Deal with it in any matter
- dispose, sell, purchase, gift
- transfer possession
- bring property to NZ
- remove from NZ
What does offence mean under money laundering
Any offence that is punishable under NZ law, including if it’s committed in any place as long as it’s an offence in NZ
What are proceeds in relation to money laundering?
Means any property that is derived or realized directly or indirectly by any person from the commission of the offence
Define property in relation to money laundering
Real or personal property of any description, whether situated in NZ or elsewhere, tangible or intangible
Under the criminal proceeds act what must the crown prove?
On the balance of probabilities that wealth and benefits have been accumulated through significant criminal activity
Where is an asset forfeiture order approved?
The high court on the balance of probabilities
What does tainted property mean?
Property that wholly or in part has been acquired as a result of significant criminal activity OR
Directly or indirectly derived from significant criminal activity AND
Includes property derived from more than one activity as long as one of those activities is a significant criminal activity
What is a qualifying instrument forfeiture offence?
Offence punishable by 5 years or more
Can include conspiracy or accessory or attempt to an offence where the imprisonment would be 5 years or more
What is significant criminal activity?
1 or more offences punishable by 5 years or more OR
Proceeds etc amount to $30000 or more
What does unlawfully benefited from significant criminal activity mean?
A person knowingly, directly or indirectly, derived benefit from significant criminal activity. The person who benefited doesn’t need to be the person who was involved in the criminal activity
When must the high court make a profit forfeiture order?
Balance of probabilities that
The respondent has unlawfully benefited from significant criminal activity within the relevant period of criminal activity AND
The respondent has interest in property
What was held in the case of Pulman v Commissioner of Police?
Pulman sold precursors and then gave his boss the money so technically made no profit himself. It was held that the purpose of the regime was to prevent the ability of a person to actually profit from SCA but also the ‘chance’ that they may be able to do so. Appeal was denied
When applying for a restraining order for an instrument of crime, what should the assessment process determine?
The value
Equity in the asset
Any third party interest
The cost of action in respect of the asset
Who can applying for restraining orders under the criminal proceeds act?
Only members of asset recovery units have been delegated this function by the commissioner of Police. only They can apply for restraining orders (apart from those relating to instruments of crime) asset forfeiture orders and profit orders
What must the court be satisfied of when thinking about instruments of crime?
The respondent must have been charged with a qualifying instrument forfeiture offence )or satisfied that they will be charged within 48 hours AND
rgtb that the property was used to commit or facilitate commission of the qualifying instrument forfeiture offence
How long are restraining orders valid for?
One year. Then extended for one year. Will expire when time is up or until the making or declining of asset or profit forfeiture order , whichever is earlier
When interviewing a suspect about money laundering where recovery action is considered what do you ask about?
Suspects legitimate income
Illegitimate income
Expenditure
Assets
Liabilities
Financial records etc
What is the primary purpose of the criminal proceeds recovery act?
To establish a regime got the forfeiture of property that has been derived directly or indirectly from significant criminal offending or that represents the value of a person’s u lawfully derived income
