ASSOCIATION Flashcards
1
Q
Conspiracy to Commit Offence
Section 310(1) CA 1961
A
Conspires
- 2 or more people forming an agreement to do an unlawful act or do a lawful act by unlawful means
Mulcahy v R: once they make an agreement the very plot is an act in itself
R v Collister: Does a deliberate act with intent to get a specific result. Intent inferred from the circumstances, actions and words said before during and after the event, the surrounding circumstances, the nature of the act itself
With any person
- Gender neutral and proven by judicial notice and circumstantial evidence
To commit any offence
- An act or omission that is punishable on conviction under any enactment
OR
To do or omit, in any part of the world
Anything of which the doing or omission in NZ would be an offence
R v Darwish: if conspiracy is made in NZ and elsewhere the courts will likely view that the conspiracy was form in both countries simultaneously. Given NZ is one of those countries, it will lie within the jurisdiction of the NZ court
R v Sanders: it was deemed sufficient if one act or omission forming part of an offence or “any event necessary to the completion of any offence” occurs in NZ
2
Q
Conspires
A
Two or more people forming an agreement to do an unlawful act, or to do a lawful act by unlawful means
3
Q
Mulcahy v R (conspires)
A
Relies on two or more people forming an intention and with the agreement to carry out the offence
Once they make an agreement, the very plot is an act in itself
4
Q
Can a conspiracy involve an omission (Failure to act)?
A
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
5
Q
Can you withdraw from an agreement?
A
A person is still guilty of conspiracy if they withdraw after the agreement was made
However, if a person withdraws before the actual agreement they will not be liable
6
Q
When is a conspiracy complete?
A
Once the agreement is made, accompanied by the require intent
It does not require any further progression towards its completion
7
Q
R v Sanders
(When a conspiracy ends)
A
A conspiracy does not end with the making of the agreement
The conspiratorial agreement continues until they have carried out their objective or until it is abandoned, or in any other manner by which agreements are discharged
8
Q
What is the Mens Rea and Actus Reus for an agreement?
A
MENS REA
- An intention of those involved to agree, and
- An intention that the relevant course of conduct should be pursued by those parties to the agreement
ACTUS REUS
- An agreement between two or more people to put their common design into effect
9
Q
What are some things that can help prove the Actus Reus of an agreement?
A
Physical acts, words or gestures (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
10
Q
R v Collister (Intent)
A
Does a deliberate act with intent to get a specific result
Intent inferred from the circumstances:
- Actions and words said before, during and after the event
- The nature of the act
- The surrounding circumstances
11
Q
R v White
(unknown identities)
A
Where you can prove that a suspect conspired with other 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
12
Q
Conspiring with Spouse or Partner
Section 67 CA 1961
A
A person is capable of conspiring with his or her spouse or civil union partner OR
with his or her spouse or civil union partner AND any other person
13
Q
What is the difference between offence and crime?
A
Nothing
They’re basically the same and are described as:
- Any act or omission that is punishable on conviction under any enactment
14
Q
Define Act and Omission
A
ACT
- To take action or do something
- To bring about a particular result
OMISSION
- The action of excluding or leaving out someone or something
- A failure to fulfil a moral or legal obligation
15
Q
R v Sanders
(Jurisdiction)
A
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
16
Q
Jurisdiction in relation to conspiracy
A
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
17
Q
Conspiracy to Commit an Offence Overseas (s310)
defence
A
If a person conspires to commit an act overseas, it is a defence to a charge of conspiracy if they can prove that the act or omission is not an offence under the law of the country where it was to be carried out
18
Q
R v Darwish
(Conspiracy between NZ and other country)
A
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
Given NZ is one of those countries, it will lie within the jurisdiction of the NZ courts
19
Q
What are the two points in relation to admissibility of evidence for a conspiracy
A
- Independent evidence of the conspiracy can be admitted as evidence against the co-conspirator’s
- Explanation’s made after the common purpose can only be used as evidence against the person making it
20
Q
When interviewing witnesses for conspiracy what should their statements contain?
A
- The identity of 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
21
Q
What should you ask a suspect in relation to a conspiracy?
A
- The existence of an agreement to commit or omit something that would amount to an offence
- The intent of those involved
- The identity of those involved
- Whether anything was written, said or done to further the common purpose
22
Q
Can you file a charge of conspiracy when a substantive offence can be proved?
A
Where a substantive charge can be proved you should avoid laying a conspiracy charge, unless the substantive charges fail to adequately represent the total criminality of the offending encountered
23
Q
What must you prove for cases of attempt?
A
- The identity if the suspect/s
- They intended to commit an offence
- They did, or omitted to do, something to achieve their object
24
Q
What are the three elements of an attempted offence
A
MENS REA
- An intent to commit an offence
ACTUS REUS
- An act that they did or omitted to do to achieve that end
PROXIMITY
- That their act or omission was sufficiently close to the full offence
25
When can you not charge someone with an attempt?
- The criminality depends on recklessness or negligence (Manslaughter)
- An attempt to commit an offence is included within the definition of the offence (Assault)
- The offence is such that the act has to have been completed for the offence to exist at all (Demand with menace)
26
What are two examples of offences where an attempt isn't relevant?
- Manslaughter
- Assault with intent to commit sexual violation
27
R v Ring (Attempt)
The offender intended to steal property by putting his hand into the victims pocket but the pocket was empty, so he did not obtain anything
This still qualifies as an attempt even though the theft wasn't actually possible
28
A question of fact (conspiracy)
Whether the intent exists or not is a question of fact, a question that the jury decides
- The jury decides whether the facts presented by the Crown have been proved beyond reasonable doubt and if the defendant’s acts are close enough to the full offence
29
Actus reus in attempts
Does or omits an act for the purpose of accomplishing his object
The act must be immediately or proximately connected with the intended offence and goes beyond the (too remote) stage of mere preparation
30
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
- Doing a 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
31
R v Harpur (Attempt)
The court views the conduct cumulatively up until the conduct in question stops. How much remains to be done is always relevant, though not determinative
32
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?
33
What are the two questions you ask when doing the proximity test?
- Had the offender **done anything more** to embark in an actual attempt?
OR
- Has he taken **a step in the actual crime** itself?
If yes, then we can say there has been an attempt as a matter of law
If no, then the conduct is classed as preparation and is not an offence
34
Who decides proximity?
It is a question of law, decided by the Judge, based on the assumption that the facts of the case are proved
35
What are the four elements that help determine proximity?
The acts carried out by the defendant may be look at collectively when determining proximity. You must take into consideration:
- Fact
- Degree
- Common sense
- The seriousness of the offence
36
Define Impossibility
A person can be convicted of an attempt to commit an offence that was physically impossible to commit, but cannot be convicted of an offence that was legally impossible to commit
37
What are the three case laws in relation to a physically or factually impossible?
- R v Ring
- Higgins v Police
- Police v Jay
In these cases it was held that the offenders could be convicted of an attempt, because they acted with criminal intent
38
Higgins v Police (Physically or factually impossible)
A person growing tomato plants believing they were cannabis plants. It is possible to commit the offence of ‘attempting to cultivate cannabis’
39
Police v Jay
(Physically or factually impossible)
A man brought hedge clippings believing they were cannabis
40
R v Donnelly (Legally impossible act)
Where stolen property has been returned to the owner, 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
41
What did the Court decide despite Donelly’s Mens rea and Actus reus?
It was legally impossible for him to receive stolen property as those goods were no longer deemed to be stolen
42
When is an attempt complete?
An attempt is complete when the defendant commits an act that is sufficiently proximate to the intended offence, even if they then change their mind and voluntarily withdraw
43
Once the acts are sufficiently proximate, what are three things that aren't a defence
The defendant:
- Was prevented by some outside agent from doing something that was necessary to complete the offence (Interruption from Police)
- Failed to complete the full offence due to ineptitude, inefficiency or insufficient means (Faulty bomb did not explode)
- Was prevented from committing the offence because an intervening event made it physically impossible (Property has been removed before intended theft)
44
What is the function of the judge and jury for an attempt?
**THE JUDGE MUST DECIDE**
- Whether the act was sufficiently proximate to the full offence
- Whether the defendant’s actions were more than mere preparation
**THE JURY THEN DECIDES**
- Whether the facts presented by the Crown have been proved beyond reasonable doubt and if so, whether the defendant’s acts are close enough to the full offence
- And whether the defendant intended to commit the full offence
45
When filing charges for an attempt can the defendant be convicted of the full offence?
- Where a person is charged with the full offence, but they are found guilty only of an attempt they may be convicted of the attempt
- Where a person is charged with the attempt, but the evidence establishes that the defendant did in fact commit the full offence, they can only be convicted of the attempt
46
If there is no express punishment for an attempted offence, what is the punishment?
s311(2) CA 1961
If the sentence for the full offence is life imprisonment then it is no more that 10 years, in any other case it is half of the sentence of imprisonment
47
Parties to Offences
Section 66(1) CA 1961
(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
*Deals with situations where the people involved are a party to the intended offence*
48
What do you need to prove when charging someone as a party s66(1)(a)-(d) ?
- The identity of the defendant AND
- An offence has been successfully committed AND
- The elements of the offence s66(1) have been satisfied
49
When someone is a party to an offence, when must participation occur?
- Before or during the offence
- Before the offence is complete
If a person was reckless as to whether the principal was assisted or encouraged, they are not liable. They must intentionally be helping
50
R v Pene (Party to)
A party must intentionally help or encourage, it is insufficient if they were reckless as to whether the principal was assisted or encouraged
51
What is the difference between the principal or secondary offender
**PRINCIPAL**
- The person who commits the offence s66(1)(a)
**SECONDARY**
- Someone who assists the principal offender either before or during the commission of an offence
- The person whose assistance, abetment, incitement, counselling or procurement is sufficient under s66(1)(b)(c) or (d)
- They do not need to know the precise detail involved in planning or committing the offence
52
R v Renata (Party to)
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 section 66(1)
53
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
54
Define Aids
To assist in the commission of an offence, either physically or by giving advice and information
55
R v Turanga (Aids)
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
56
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
57
Larkins v Police (Proof of assistance)
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**
58
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**
59
Can you aid by omission?
Yes, if a person, who has a legal duty or power of control, fails to observe or discharge the duty to prevent someone from committing an offence
*A police officer stands by and watches someone getting beaten up and doesn’t help*
60
Define Abets
- To instigate or encourage, urge another person to commit an offence
- You do not need to be present at the scene to do this
61
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
62
Ashton v Police
(Legal duty)
An example of a secondary party owing a legal duty to a third person or to the general public is a person teaching another person to drive
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
63
When may passive acquiescence be considered abetting
In circumstances where 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
64
R v Russell
(Special relationship)
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 acts he became an aider and abettor and thus a secondary offender
*Wife drowns herself and children in pool after argument and husband watches*
65
Define Incite
To rouse, stir up, stimulate, animate, urge or spur on a person to commit an offence
*fan cheering on another fan who is assaulting a protester*
66
Define Counsels
- 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
*An offender found with a letter of instructions on how to blow up a safe*
67
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
- May be carried out by **fraud, persuasion, words or conduct, such as an offer of payment**
*A woman hires a hitman to kill her husband and offers money or sexual services*
68
Define Any Person
Any person carries its natural meaning and means any other person
69
Parties to Offences
Section 66(2) CA 1961
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 a probable consequence of the prosecution of the common purpose
*Deals with situations where the people involved are a party to the intended offence and a party to any secondary offence committed in pursuance of the intended offence*
70
Define Common Intention
- Where two or more offenders form a common intention and embark on a joint enterprise together, 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
- However, if one offender goes beyond what was agreed, then the others are not liable for the unauthorised act
71
R v Betts and Ridley (common intention)
If no violence is contemplated but the principal offender uses violence, the secondary offender will not be liable
*robs a man on the way to the bank, strucks the man in the head that he ends up dying*
72
What is a question of fact? (Party to)
The jury must decide whether the defendant knew that furthering their common aim in a particular way would probably result in another of the parties committing a particular offence
73
What are the two qualifications in the general rule for probable consequence?
**QUALIFICATION 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
**QUALIFICATION 2**
- There is no requirement that person A’s 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
74
A person charged as a party to murder will be guilty of murder if they:
- Intentionally helped or encouraged it
- Foresaw murder as a real risk in the situation
75
A person charged as a party to manslaughter will be guilty of manslaughter if they:
- Knew there was a real risk of killing short of murder
- Foresaw a real risk of murder, but the killing occurred in circumstances different from those contemplated
- Can be expected to have known there was an ever-present real risk of killing
76
What is an innocent agent?
- Used by the offender to carry out actus reus
- Unaware of the significance of their actions
- Used as the mechanism and cannot be convicted as a secondary party
*An offender gives the waiter a glass of poisoned wine who then gives it to the victim*
77
How do you establish involvement of parties?
- A reconstruction of the offence committed may indicate the principal offender had help
- The principal offender saying they had help
- Someone else admitting they helped
- Someone witnessing another person's involvement
- Receiving information that other people were involved
78
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*
79
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 (use one or a combination of these words) in the commission of the said offence’*
80
It is not legally necessary to refer to s66 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
81
What is the punishment if you are parties to an attempted offence?
s311(2) CA 1961
If the sentence for the full offence is life imprisonment then it is no more that 10 years, in any other case it is half of the sentence of imprisonment
82
What is the difference between “aiding and abetting” and “inciting, counselling and procuring”?
**AIDING AND ABETTING**
- Requires the aider or abettor to be present at the scene before or at the time the offence is committed
**INCITING, COUNSELLING AND PROCURING**
- Describes the actions taken before the offence is carried out
83
What is the punishment for AATF
Life= 7 years
More than 10 years = 5 years
Anything else no more than half
84
When was the spouse/civil union partner exception changed?
2019
85
With AATF what status does the primary offence need to be?
The primary offence needs to be complete
86
R v Crooks (Knowledge)
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
87
What knowledge must the accessory possess at the time they're giving assistance
- An offence has been committed AND
- The person they are assisting was a party (principal or secondary) to that offence
*If knowledge comes after they have assisted, then they are not liable as an accessory*
88
R v Briggs (Wilful blindness)
Knowledge may also be inferred from wilful blindness or a deliberate abstention from making inquiries that would confirm the suspected truth
89
When is a person considered wilfully blind?
- A person deliberately shuts their eyes and fails to enquire, knowing what the answer would be
- When the person realises the likely truth of the matter but refrains from enquiring in order not to know
90
Accessory after the Fact
s71(1) CA 1961
**Knowing**
- means actual knowledge or belief in the sense of having no real doubt that the person assisted was a party to a relevant offence. Mere suspicion of their involvement in the offence is insufficient
*R v Crooks: the accessory must know that at the time of giving assistance they knew an offence has been committed and the person they are assisting was a party to that offence. Their knowledge existed at the time of giving assistance*
**Any person to have been**
- Gender neutral and proven by judicial notice and circumstantial evidence
**Party to**
- actually commits an offence, does or omits an act for the purpose of aiding any person to commit an offence, abets any person in the commission of the offence, incites counsels procures any person to commit the offence
**An offence**
- an act or omission punishable on conviction under any enactment
**Receives**
- harbouring, hiding, offering shelter
**comforts**
- provide food, accomodation, clothing
**assists**
- act as lookout, promote transport, give false information
**that person**
OR
**tampers with**
- alters evidence
OR
**actively suppresses**
- conceals or destroys
**any evidence against him**
**in order to enable him to escape after arrest OR avoid arrest OR conviction**
*R v Collister: does a deliberate act with intent to get a specific result. Actions and words said before during and after the event, the surrounding circumstances, the nature of the act itself*
91
R v Mane (AATF)
To be considered an accessory the acts done by the person must be after the completion of the offence
*A person was charged as an AATF to murder however assistance was given after the victim was shot and before the victim died. The Crown withdrew the charge and substituted it to a pervert the court of justice charge*
92
What is an example of receiving , comforting or assisting
**RECEIVING**
- Harbouring an offender or offering them shelter
- Hiding them in a basement, offering shelter
**COMFORTING**
- Providing shelter, accomodation, food and clothing
**ASSISTING**
- Acting as a lookout, providing transport, providing false information as to an offender’s whereabouts
93
What's an example of tampers with evidence and actively suppresses evidence
**TAMPERS**
- To alter the evidence against the offender
*Modifying an offenders telephone records to conceal communications that might implicate them*
**ACTIVELY SUPPRESSES**
- Encompasses acts of concealing or destroying evidence against an offender
*Bloodied clothing is washed repeatedly to remove evidence or set it alight to destroy the clothing*
94
In relation to destruction of evidence what needs to be proved?
The test is whether what was tampered with or suppressed “could be” evidence not whether it would have been evidence had it not been destroyed
95
Can you be charged with attempting to be an accessory
Yes
*In R v DH the appellant was charged with attempting to be an AATF for murder by unsuccessfully trying to dispose a weapon in a fatal robbery*
96
Is there a requirement that the offender is directly assisted by the accessory?
No, they can still be an AATF even if they are not directly assisting
97
When an innocent agent is employed 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
98
What must the accessories intent be?
For someone to be held liable as an AATF, the intent required at the time of providing the assistance is that such assistance will enable the offender to:
- Escape after arrest
- Avoid arrest
- Avoid conviction
*Mere knowledge that an act is likely to help an offender is insufficient in itself*
99
In relation to AATF, what needs to be proven in relation to the primary offence?
The AATF is entitled to insist on proof that the alleged offence was committed and to challenge that proof, regardless of whether a guilty plea has been entered or a conviction recorded against the offender
100
When can you charge someone as being an AATF 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
101
Define formal statement
A statement that is to be treated as evidence on oath given in a judicial proceeding within the meaning of s108 CA 1961 (perjury)
102
What is the punishment for perjury s109(1)?
7 years
103
Punishment of Perjury
s109(2)
If perjury is committed to get someone convicted of an offence punishable no less than three years, then the punishment for the perjury is a maximum of 14 years
104
Penalty for False Oaths s110 CA 1961
Not exceeding 5 years
105
False Declaration penalty
s111 CA 1961
Not exceeding 3 years
106
Evidence of perjury, false oath or false statement
s112 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 implicating the defendant
107
Penalty for Fabricating Evidence
s113 CA 1961
Not exceeding 7 years
108
Perjury
s108(1) CA 1961
**A witness making any**
- a person who gives evidence and can be cross examined in a proceeding, includes someone who is giving, previously gave or will give evidence
**Assertion as to any matter of**
- something declared or stated positively
**fact**
- an actual thing done, occurrence or event
**opinion**
- tends to prove or disprove facts
**belief**
- a subjective feeling regarding the validity of an idea or set of facts
OR
**knowledge**
*Simester and Brookbanks: knowing, or correctly believing*
**In any judicial proceeding**
- any proceedings held in a court of justice
**Forming part of that witnesses evidence**
- given the ordinary way personally in court or by affidavit, the alternative way using screens DVD or CCTV, or any other way provided for under this act or any other act
**on oath**
- religious belief, sworn on bible
**Known by that witness to be false**
AND
**Intended to mislead the tribunal**
109
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
110
What is an assertion?
Something declared or stated positively
*often with no support or proof of the assertion’s accuracy*
111
Opinion evidence by lay witnesses
s24 EA 2006
- A witness may state an opinion in evidence in a proceeding if that opinion is necessary to enable the witness to communicate, or the fact finder to understand, what the witness saw, heard, or otherwise perceived
112
Define belief
- A subjective feeling regarding the validity of an idea or set of facts
- It is more than mere suspicion and less than knowledge
113
Define knowing
Knowing, or correctly believing
The defendant may believe something wrongly, but cannot know something that is false (Simester and Brookbanks)
114
Can you be charged with perjury if you give evidence via AVL from another country?
Yes, because remote participation is considered as taking place at the hearing
This means that giving a false evidence from another country would equate to perjury in NZ and falls within the NZ jurisdiction
115
How can evidence be given in a proceeding?
**ORDINARY WAY**
- Personally in court or by affidavit
**ALTERNATIVE WAY**
- Such as CCTV, DVD, screens etc
**ANY OTHER WAY**
- Provided for under this act or any other enactment
116
Difference between oath, affirmation and declaration
**OATH**
- Religious belief, swear an oath on the bible
**AFFIRMATION**
- Verbal or written declaration without reference to religious belief
**DECLARATION**
- A witness under 12 who promises to tell the truth
117
When is the offence of perjury complete?
At the time the false evidence is given and accompanied by the intention to mislead the tribunal
*if intention is absent, there is no offence*
118
What happens if someone gives false evidence and then changes their mind and tells the tribunal it's false
There is no defence, they are still liable for perjury
119
When is corroboration required?
Corroboration is only required when someone is charged with perjury, false oaths and false statements or declarations and treason
120
Why does perjury need corroboration
Don't want to make it too easy to prosecute for perjury, this may discourage people from giving evidence
121
Conspiring to defeat justice
s116 CA 1961
Conspires to obstruct, prevent, pervert or defeat the course of justice
*7 years*
122
Examples of defeats the course of justice
- Doing something with intent that proceedings don't take place
- Discourage a victim from pursuing a complaint
123
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
- Giving Police false information to obstruct their enquiries
124
Corrupting Juries and Witnesses
s117 CA 1961
- Dissuades or influence
- Attempts to dissuade or influence
- by threats, bribes or other corrupt means
OR
- The person or member of a jury accepts the bribe or other corrupt consideration to abstain from giving evidence
125
When commencing a prosecution for perjury who should you get permission from?
Recommended by the courts or directed to do so by the commissioner of Police. You can begin enquiries into the allegation of perjury without permission though
126
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 enquiries into the truth of the evidence given by a witness
127
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
128
What charge encompasses both civil and criminal proceedings?
Conspiring to defeat the course of justice
129
What are the two main points to be covered when interviewing a suspect for perjury?
- Whether the suspect knew their assertion was false and
- Whether they intended to mislead the tribunal governing proceedings
130
What are the punishments for receiving?
s247 CA 1961
Over $1000: 7 years
$500 - $1000: 1 year
Under $500: 3 months
131
Receiving
s256(1) CA 1961
**Receives**
- the defendant has received that property from another. It is complete as soon as they have possession or control over the property or helps in concealing or disposing it
*R v Cox: possession has 2 elements. Actual and potential physical control and mental, a combination of knowledge of possession and an intention to exercise it*
*Cullen v R: there are 4 elements for receiving. Awareness that the items is where it is, that the item is stolen, actual or potential control of the item, an intention to exercise control over the item*
**Any property stolen**
- any real or personal, estate, interest, money, electricity, debt, anything in action, other right or interest
OR
**Obtained by any other imprisonable offence**
*R v Lucinsky: the property received must be stolen or illegally obtained and not some other item for which the illegally obtained property had been exchanged or which are the proceeds*
**Knowing that at the time of receiving the property that it had been stolen or obtained by any other imprisonable offence**
*R v Kennedy: the guilty knowledge that the thing has been stolen or dishonestly obtained must exist at the time of receiving*
OR
**Being reckless as to whether or not the property was stolen or so obtained**
*Cameron v R: recklessness is established if the defendant recognised a real possibility that their actions would bring about the proscribed result, the proscribed circumstances existed and having regard to that risk those actions were unreasonable*
132
What are the three elements for the ‘Act of Receiving’?
- There must be property stolen or obtained by an imprisonable offence
- The defendant must have received that property from another
- They received it in the knowledge it had been stolen or illegally obtained, or was reckless to that possibility
133
When is the act of receiving complete?
As soon as the offender has possession or control over the property or helps in the concealing or disposing of it
*If there is guilty knowledge at that point, the offence is complete*
134
R v Cox (Possession)
Possession involves two elements:
- Actual or potential physical custody or control
- Mental, a combination of knowledge of possession and an intention to exercise it
135
Cullen v R (Possession)
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
136
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, upon discovering the property, they intentionally exercised control over it
137
Does the doctrine of recent possession apply in cases of assisting in disposal or concealment of stolen property?
No
138
Do you need to prove dishonesty in relation to receiving?
There is conflicting case law around this
- R v Crooks held that there is an implied requirement that the accused acted with a dishonest intention
- People who knowingly received stolen property with the sole unconditional intention of returning it to the lawful owner or to police commit no offence
139
Define Property
Any real or personal, estate, interest, money, electricity, debt, anything in action, other right or interest
140
R v Lucinsky (Recieving)
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
141
Does receiving include receiving money obtained from selling drugs?
Yes the money has been obtained by dishonest means
142
What is a voidable title?
A title obtained by deception, fraud, duress or misrepresentation. This means the title can be voided by the seller
The deceiver usually gains both possession and voidable title, however where property is stolen they gain possession only
143
Define title
A right or claim to the ownership of property
A legal right to the property
Another term for title is ‘property in’
144
How do you avoid a title?
- Communication to the deceiver and taking reasonable step to bring it to their attention by writing a letter, text, phone call
- Advise the police that the property was obtained by deception
145
R v Kennedy (Knowledge)
The guilty knowledge that the thing has been stolen or dishonestly obtained must exist at the time of receiving
146
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
147
Cameron v R (Recklessness)
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
148
What are some examples of circumstantial evidence of guilty knowledge in receiving matters?
- Possession of recently stolen property
- Removal of identifying marks or features
- Steps taken to disguise property by altering serial numbers, painting
- Hiding the property to avoid discovery
149
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
150
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
151
What are the two points that determine whether possession of property is recent
The nature of the property and the surrounding circumstances
152
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
153
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
154
Is receiving property obtained outside NZ an offence?
Yes, if the property was obtained by an offence that would be an imprisonable offence in NZ and the receiving was done in NZ
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
155
Who can be charged as a party to receiving?
The thief of the property who hands over the property to the receiver
156
How does property get restored as no longer being stolen
Police act as an an agent or it is returned directly to the owner
157
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
158
What are the three stages of the money laundering cycle (UNODC)?
- Placement
- Layering
- Integration
159
What is an example of placement (first stage of money laundering cycle)
Cash enters the financial system
*A drug dealer deposits proceeds into an associate's bank account*
160
What is an example of layering (second stage of money laundering cycle)
Money is involved in a number of transactions
*An associate transfers the money into a shell company that the offender is a director of*
161
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 out of the company account*
162
What are the four elements of money laundering?
- In respect of any property that is the proceeds of an offence *(Tangible and intangible)*
- Engages in a money laundering transaction
- Knowing or believing that all or part of the property is proceeds or an offence *(proven by direct and/or circumstantial evidence)*
- Being reckless as to whether or not the property is proceeds of an offence *(conscious and deliberate taking of an unjustifiable risk)*
163
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 or disguise the nature, source, location, disposition, or ownership of the property
164
What does 'deal with' in relation to money laundering mean?
Deal with it in any matter includes:
- Property is disposed, sold, purchased, gifted
- Transfer possession
- Bring property to NZ
- Remove property from NZ
165
What does ‘offence’ mean under money laundering
Any offence that is punishable under NZ law, including any act that would be an offence in NZ if committed outside of NZ
166
What are ‘proceeds’ in relation to money laundering?
Means any property that is derived or realised, directly or indirectly, by any person from the commission of the offence
*illicit proceeds may be laundered to avoid detection of criminal activity, to preserve fruits of crime, to further criminal enterprise. The essence of the activity is concealment*
167
Define ‘property’ in relation to money laundering
Real or personal property of any description, whether situated in NZ or elsewhere, tangible or intangible
168
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
*The primary purpose is to establish a regime for the forfeiture of property derived from criminal activity, or that represents the value of a person’s unlawfully derived income*
169
Where is an asset forfeiture order approved?
The high court on the balance of probabilities
170
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
171
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
172
What is significant criminal activity?
- 1 or more offences punishable by 5 years or more
OR
- Proceeds, property or benefits amount to $30,000 or more
173
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
174
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
175
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 undertaking significant criminal activity but also the 'chance' that they may be able to do so
- His appeal was denied
176
When applying for a ‘Restraining Order Relating to Instrument of Crime’ what should the assessment process determine?
- The value of the asset
- Equity in the asset
- Any third party interest
- The cost of action in respect of the asset
*Instrument of crime includes vehicles and property used in the facilitation of the offence committed*
177
Who can applying for a ‘Restraining Order Relating to Instrument of Crime’?
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
*Guidance should be sought from Prosecutions and/ ARU*
178
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 the court must be satisfied that they will be charged within 48 hours
AND
- RGRB that the property was used to commit or facilitate commission of the qualifying instrument forfeiture offence
179
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 an assets or profit forfeiture order, whichever is earlier*
180
When interviewing a suspect about money laundering where recovery action is considered what do you ask about?
- Suspects legitimate income
- Their illegitimate income
- Expenditure
- Assets
- Liabilities
- Financial records
181
R v Gibbs (To evade justice)
GIBBS was convicted as an AATF when he and an escapee were hiding together. GIBBS left and got supplies and returns to the hiding place. His act helped the escapee in someway to evade justice
182
R v Levy (Actively suppresses evidence)
LEVY was convicted of being an AATF after he removed equipment used by an offender after his arrest for the purpose of assisting the offender to evade justice
