ASSOCIATION Flashcards
Conspiracy to Commit Offence
Section 310(1) CA 1961
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
Conspires
Two or more people forming an agreement to do an unlawful act, or to do a lawful act by unlawful means
Mulcahy v R (conspires)
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
Can a conspiracy involve an omission (Failure to act)?
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?
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
When is a conspiracy complete?
Once the agreement is made, accompanied by the require intent
It does not require any further progression towards its completion
R v Sanders
(When a conspiracy ends)
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
What is the Mens Rea and Actus Reus for an agreement?
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
What are some things that can help prove the Actus Reus of an agreement?
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
R v Collister (Intent)
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
R v White
(unknown identities)
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
Conspiring with Spouse or Partner
Section 67 CA 1961
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
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
Define Act and Omission
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
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
Conspiracy to Commit an Offence Overseas (s310)
defence
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
R v Darwish
(Conspiracy between NZ and other country)
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
What are the two points in relation to admissibility of evidence for a conspiracy
- 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
When interviewing witnesses for conspiracy what should their statements contain?
- 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
What should you ask a suspect in relation to a conspiracy?
- 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
Can you file a charge of conspiracy when a substantive offence can be proved?
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
What must you prove for cases of attempt?
- The identity if the suspect/s
- They intended to commit an offence
- They did, or omitted to do, something to achieve their object
What are the three elements of an attempted offence
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
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)
What are two examples of offences where an attempt isn’t relevant?
- Manslaughter
- Assault with intent to commit sexual violation
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
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
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
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
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
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?
- 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
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
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
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
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
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’
Police v Jay
(Physically or factually impossible)
A man brought hedge clippings believing they were cannabis
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
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
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
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)
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
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
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
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
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
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
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
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
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)
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 and information
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
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
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
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?
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
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
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
(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
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
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
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
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
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
Define Any Person
Any person carries its natural meaning and means any other person
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
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
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
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
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
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
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
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
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
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 (use one or a combination of these words) in the commission of the said offence’
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
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
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
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)
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 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
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
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
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
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
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
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
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
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
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
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
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
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
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
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)
What is the punishment for perjury s109(1)?
7 years
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
Penalty for False Oaths s110 CA 1961
Not exceeding 5 years
False Declaration penalty
s111 CA 1961
Not exceeding 3 years
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
Penalty for Fabricating Evidence
s113 CA 1961
Not exceeding 7 years
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
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
often with no support or proof of the assertion’s accuracy
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
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
Define knowing
Knowing, or correctly believing
The defendant may believe something wrongly, but cannot know something that is false (Simester and Brookbanks)
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
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
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
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
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
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
Conspiring to defeat justice
s116 CA 1961
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
- Giving Police false information to obstruct their enquiries
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
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
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
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 and
- Whether they intended to mislead the tribunal governing proceedings
What are the punishments for receiving?
s247 CA 1961
Over $1000: 7 years
$500 - $1000: 1 year
Under $500: 3 months
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
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
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
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
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
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
Does the doctrine of recent possession apply in cases of assisting in disposal or concealment of stolen property?
No
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
Define Property
Any real or personal, estate, interest, money, electricity, debt, anything in action, other right or interest
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
Does receiving include receiving money obtained from selling drugs?
Yes the money has been obtained by dishonest means
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
Define title
A right or claim to the ownership of property
A legal right to the property
Another term for title is ‘property in’
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
R v Kennedy (Knowledge)
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
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
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
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 points 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?
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
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
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 (UNODC)?
- Placement
- Layering
- Integration
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
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
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
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)
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
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
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
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
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
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
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, property or benefits amount to $30,000 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 undertaking significant criminal activity but also the ‘chance’ that they may be able to do so
- His appeal was denied
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
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
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
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
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
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
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
