Association Flashcards
CON: When can you withdraw from an agreement?
If a person withdraws before the agreement is made, they would not be liable.
A person is still guilty of conspiracy if they are party to the agreement then withdraw afterwards.
CON: What is the mental and physical element of a conspiracy?
The mens rea (mental element):
- an intention of those involved to agree, and
- an intention that the relevant course of conduct should be pursued by those party to the agreement
The acts reus (physical element):
- is the agreement between two or more people to put their common design into effect. The agreement must be made before the commission of the acts which make up the full offence and the object of the conspiracy
- physical acts, words, or gestures used by the conspirators in making their agreement (whether this is an express or implied agreement)
*mere passive presence or knowledge of an intention does not amount to being a party to the conspiracy
CON: Explain what ‘intent’ is
There are two specific types of intent.
Deliberate Act:
- and act or omission must be done deliberately
Intent to produce a result:
- aim, object, or purpose
CON: What are three examples to prove a persons intent?
- the offenders actions and words, before, during, and after the event
- the surrounding circumstances
- the nature of the act itself
Can a person conspire on their own?
No, There must be another conspirator for the offence to be committed.
(R v White)
R v Malcahy
A conspiracy consists not merely in the intention of 2 or more but in the agreement of 2 or more to do an unlawful act, or lawful act by unlawful means.
What happens if a person enters into a conspiracy overseas?
Under common law rules, a person who entered into a conspiracy overseas is amendable to the jurisdiction of NZ law, ONLY if they are later physically present in NZ and they act in the continuance of the conspiracy.
NZ Courts have no jurisdiction over a conspirator who enters into the conspiracy abroad and who never comes to NZ.
CON: What is the admissibility of hearsay evidence?
Anything a conspirator or party to a joint charge says or does to further the common purpose is admissible against the others involved, this being an exception to the hearsay rile and as such conspirators should be jointly charged,
However this does not include explanations made after the common purpose is carried out. Then, the explanation is evidence only against the person making it.
CON: What do you need to cover off in a WITNESS statement re conspiracy?
- the identity of the people present at the time of the agreement
- with whom the agreement was made
- what offence was planned
- any acts carried out to further the common purpose
CON: What do you need to cover off in a SUSPECTS interview re conspiracy?
- the existence of an agreement to commit an offence, OR
- the existence of an agreement to omit to do something that wold amount to an offence, and
- the intent of those involved in the agreement
- the identity of all people concerned where possible
- where anything was written, said or done to further the common purpose
CON: When charging, why is it undesirable to lay both a substantive charge and a related conspiracy charge?
- the evidence admissible only on the conspiracy charge may be a prejudicial effect in relation to other charges
- the judge may disallow the evidence as it will be too prejudicial, ie the jury may assume the defendants guilty knowledge or intent regarding the other charge and not look at the evidence, basing its assumption on the conspiracy charge
- the addition of a conspiracy charge may unneccessarily complicate and prolong a trial
- where the charge of conspiracy is not founded on evidence or is an abuse of process, it may be quashed
- severance may be ordered. This mens that each charging document may be hard at seperate trials
ATTEMPT: What are the three elements of an attempt offence?
- intent (mens rea) to commit an offence
- act (actus reus) that they did, or omitted to do, something to achieve that end
- proximity - that their act or omission was sufficiently close
R v Ring
In this case the offenders intent was to steal property by putting his hand into the pocket of the victim. Unbeknown to the offender, the pocket was empty. Despite this he was able to be convicted of attempted theft, because the intent to steal whatever property might have been discovered inside the pocket was present in his mind and demonstrated by his action. The remaining elements were also satisfied.
ATTEMPT: Explain what is meant by ‘acts must be sufficiently proximate to the full offence’:
The accused must have started to commit the full offence and have gone beyond the phase of mere preparation, this is the ‘all but’ rule.
ATTEMPT: What are some examples of acts that may constitute an attempt to commit an offence?
- lying in wait searching for or following the contemplated victim
- enticing the victim to go to the scene of the contemplated crime
- reconnoitring 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
ATTEMPT: Can a person still be charged with an attempt when an act is physically or factually impossible?
Yes, as they acted with criminal intent.
Suspects may be unable to commit the offence due to interruption, ineptitude, or any other circumstances beyond their control eg. a person failing to force open a door due to being to weak or they were interrupted by attending Police.
AATF: What does an “offence” mean?
Any act or omission that is punishable on conviction under any enactment, and are demarcated info four categories within S6, Criminal Procedures Act 2011.
R v Crooks
Knowledge means actual knowledge or belief in the sense of having no real doubt that the person assisted was a party to the relevant offence. Mere suspicion of their involvement in the offence is insufficient.
R v Briggs
As with a receiving charge under S246(1), knowledge may also be inferred from wilful blindness or a deliberate abstention from making inquiries that would confirm the suspected truth.
PERJ: Explain what is held under S113 CA1961 - Fabricating evidence.
Everyone is liable to 7 yers who, with intent to mislead any tribunal holding any judicial proceeding to which section 108 applies, fabricates evidence by any means other than perjury.
What are the elements of perjury?
- a witness making any
- assertion as to any matter of fact, opinion, belief, or knowledge
- in any judicial proceeding
- forming part of that witness’s evidence on oath
- known by that witness to be false, and
- intended to mislead the tribunal
PERJ: What is an opinion?
Opinion, in relation to a statement offered in evidence means a statement of opinion that tends to prove or disprove a fact.
PERJ: Under the Evidence Act 2006 (S24), what are some examples of opinion evidence that a witness may give?
- apparent age
- identity
- speed
- physical and emotional state of people
- condition of articles (worn, used, or new)
- whether a person is under the influence of drink
‘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, herd, or otherwise perceived’
PERJ: When is the offence of perjury complete? And is there a defence?
At the time the false evidence is given accompanied by an intention to mislead the tribunal. There is no defence where the witness later recants and informs the tribunal of the falsity of the earlier evidence given.
There must be an intention to mislead the tribunal, where this intention is absent, no offence is committed.
PERJ: What are NINE examples of misleading justice under S116 & S117?
- preventing a witness from testifying
- wilfully going absent as a witness
- threatening or bribing witnesses
- concealing the fact an offence has been committed
- intentionally giving Police false information to obstruct their enquiries
- supplying false information to probation officers
- assisting a wanted person to leave the country
- arranging a false alibi
- threatening or bribing jury members
PERJ: When may you commence a prosecution for perjury?
Where it is recommended by the Courts or you are directed to do so by the Commissioner of Police. You may however, begin enquiries into an allegation of perjury without reference to the Court or Commissioner of Police.
How can complaints of perjury arise?
- an individual may complain that someone has perjured themselves
- a judge may state or direct in a court recommendation that the Police undertake inquiries into the truth of the evidence given by a witness
REC: What are the elements of receiving?
- act of receiving
- any property stolen, or
- obtained by any other imprisonable offence
- knowing that at the time of receiving the property that it had been stolen or obtained by any other imprisonable offence, or
- being reckless as to whether or not the property had been stolen or so obtained
REC: What are the three elements required to satisfy the act of receiving?
- there must be property which has been stolen or has been obtained by an imprisonable offence
- the defendant must have ‘received’ that property, which requires that the receiving must be from another (you cannot receive from yourself)
- the defendant must receive that property in the knowledge that it has been stolen or illegally obtained, or being reckless as to that possibility
REC: Under S246(3)
The act of receiving any property stolen or obtained by any other imprisonable offence is complete as soon s the offender has, with exclusively or jointly with the the or another person, possession of, or control over, the property or helps in concealing or disposing of the property.
R v Cullen
There are four elements of possession for receiving:
- awareness that the item is where it is
- awareness that the item was stolen
- actual or potential control of that item
- an intention to exercise that control over the item
REC: What must the prosecutor prove in order to establish a person has exercised control over an item?
The prosecution must prove the receiver arranged for the property to be delivered there, or alternatively, that on discovering the property, he or she intentionally exercised control over it. Intent to possess the property must also be satisfied.
R v Donnelly
Where stolen property has been returned to the owner or legal title to the property has been acquired by any person, it is not an offence to subsequently receive it, even though the receiver may know the the property had previously been stolen or dishonestly obtained.
REC: Define property
Property includes real and personal property, and any estate or interest in any real and personal property, money, electricity, and any debt, and anything in action, and any other right or interest.
REC: What is the concept of title? (define title)
A right or claim to the ownership of property. Title or ownership of a thing is the legal right to possession of that thing.
If property is obtained by deception, the offenders gets possession and title, however there are limitations to that title.
REC: What is voidable title?
Title that has been obtained by deception is ‘voidable title’. It means that the title can be avoided by the seller (complainant). Although the title is voidable, it is still title.
If an innocent buyer bought the property off the deceiver, they acquire good title. If the title has been voided prior to the innocent buyer purchasing the item, they do not acquire title to the goods.
REC: How do you avoid title?
- communicate directly with the deceiver
- taking all reasonable and possible steps to bring it to the deceivers notice, eg. sending them a letter
- advising Police of the circumstances of the deception
R v Kennedy
The guilty knowledge that the thing has been stolen or dishonestly obtained must exist at the time of receiving.
R v Harney
Recklessness means the conscious and deliberate taking of an unjustified risk. In NZ, it involves proof that the consequence complained of could well happened, together with an intention to continue the course of conduct regardless of risk.
REC: what are some examples of circumstantial evidence of guilty knowledge?
- possession of recent stolen property
- nature of the property, i.e type, value, quantity
- purchase at a gross undervalue
- secrecy in receiving the property
- receipt of goods at an unusual time, place, or way
- concealment of property to avoid discovery
- removal of identifying marks or features
- steps taken to disguise property, ie removal/altering of serial numbers or painting
- lack of original packaging
- type of person goods are received from
- mode of payment
- absence of receipt were receipt would usually be issued
- false statements as to the source of the goods
- false statement as to the date of acquisition
- nature of explanation given, eg. false or inconsistent or no reasonable explanation
- false denial of knowledge, existence etc.
REC: Explain what the doctrine of recent possession means?
The doctoring applies ONLY in case where the defendant is found in possession of the property recently stolen or obtained dishonestly.
In circumstances where a person is found in possession of stolen property reasonable soon after the theft, an inference may be drawn that the person in possession either stole the property or received it from the thief.
REC: Where does the doctrine of recent possession have no application?
To the concealing or disposition of property.
ML: Define ‘offence’ under S243 CA1961 (Money Laundering)
Offence: means an offence (or any offence described as a crime) that is punishable under NZ law, including any act, wherever committed, that would be an offence in NZ if committed in NZ.
ML: Money Laundering, S243(2) CA1961, defines the actual offence of MONEY LAUNDERING. What is it?
- 7 years who,
- in respect to any property that is the proceeds an offence,
- engages in a money laundering transaction,
- knowing or believing that all or part of the property is the proceeds of an offence,
- or being reckless as to whether or not the property is the proceeds of crime
CP: Define tainted property
Under S5 of the Criminal Proceeds (Recover) Act 2009
Tainted property means any property that has, wholly or in part, been -
- acquired as a result of significant criminal activity; or
- directly or indirectly derived from significant criminal; activity; and
Includes any property that has been acquired as a result of, or directly or indirectly derived from, more than 1 activity if at least 1 of those activities is a significant criminal activity
CP: Define ‘qualifying instrument forfeiture offence’
Under S5 of the Criminal Proceeds (Recover) Act 2009
Qualifying instrument forfeiture offence means an offence punishable by 5 years or more; and
- includes an attempt to commit, conspiring to commit, or being an accessory to an offence if the max term of imprisonment for that attempt, conspiracy, or activity is 5 years or more
CP: Under S7 Criminal Proceeds (Recover) Act 2009, outlines the meaning of unlawful benefited from significant criminal activity. What is explained?
In this act, unless the context otherwise requires, a person has unlawful benefited from significant criminal activity if the person has knowingly, directly, or indirectly, derived a benefit from significant criminal activity (whether or not that person undertook or was involved in the significant criminal activity)
CP: Before an application to restrain an instrument of crime, an assessment process is required. What are the four things to determine?
- the value of the asset
- equity of the asset
- any third party interest in the asset
- the cost of action in respect of the asset
CP: What is required in the affidavit for an application to restrain an instrument of crime?
- Officer in charge details
- Offenders - details, charges, and criminal convictions
- Search Warrant - describe the nature of the offending discovered at or involving the asset concerned. Where the value of the asset is high, you need to demonstrate that the offending was at more of a commercial level
- Admissions made during interview(s)
- Property - describe prop sought to be restrained and its value. Show that the offender owns, has custody, or control over that property
ML: When interviewing a suspect about money laundering or where proceeds recovery action is to be considered, what are some questions to be considered?
- suspects legitimate income
- suspects illegitimate income
- expenditure
- assets
- liabilities
- obtaining financial records (banks, financing companies, loan sharks, family trust documents)
- clarification of documentary evidence located, as per above
PERJ: What is a witness? RTS.
A witness is a person that has given evidence as part of judicial tribunal and is able to be cross examined. It may also include a person who is about to give evidence.
RTS: Lisa is a witness as she is giving evidence at a JAT and she is subject to cross examination.
PERJ: What is an assertion?
It is something declared or stated positively.
PERJ: What is a matter of fact? RTS.
Something that has occurred. This includes a past event or fact that has happened.
RTS: Lisa tells the Court she did not seize the items. This is a matter of fact.
PERJ: What is a judicial proceeding? RTS.
It is any type of court proceeding. It includes giving evidence by a visual audio link from another country.
RTS: Lisa is participating in a JAT witch is a judicial proceeding.
PERJ: What is evidence?
Evidence can be given in several ways including in person in court or by an alternative way such as with screen, by an audio or visual link, DVD etc or by other way provided for under this act.
PERJ: What is an Oath? RTS.
An oath is a declaration before a person who has authority to administer an oath and says whether a things true or right. An oath and an affirmation are deemed to have equal bearing.
Lisa is giving evidence personally in court, She has affirmed her intention to tell the truth.
PERJ: What is knowing? RTS.
Knowing means knowing or correctly believing. The belief must be a correct one, where the belief is wrong, someone cannot know.
Lisa knows by saying she never seized the drug items, when in fact she knows she did but she just lost them.
PERJ: Explain a persons intention to mislead the tribunal. RTS.
The defendants intention must be to mislead the tribunal. Where that intention does not exist, no offence has been committed. Intent involves two elements, intention to commit the act, and an intention to get a specified result.
Lisa makes an assertion she never seized the drug items which is false, and she knows it is false. Her intention is to mislead the tribunal due to her fearing she will be regarded as a slacker.
What is S66(1) CA1961?
Party
S66(1) Every one is a party to and guilty of an offence who -
(a) actually commits the offence; or
(b) does or omits an act for the purpose of aiding any person to commit the offence; or
(c) abets any person in the commission of the offence; or
(d) incites, counsels, or procures any person to commit the offence
What is S66(2) CA1961?
Party
66(2) Where 2 or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose.
AATF: What knowledge must the person have at the time of assisting another person?
- that an offence has been committed AND
2. the person they are assisting was a party (principal or secondary) to that offence
ATTEMPT: Define incites
To rouse up, stir up, stimulate, animate, urge. eg. a sports fan.
A man who has an intent to commit a burglary and visits the commercial premise several times to scope the CCTV out, what is he guilty of?
He isn’t guilty of anything as he hasn’t gone beyond mere preparation to commit the full offence.
How is conspiracy defined in Mulcahy v R?
A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means.
What was found in R v Sanders regarding when a conspiracy ends?
A conspiracy does not end with the making of the agreement. The conspiratorial agreement continues in operation and therefore in existence until it is ended by completion of its performance or abandonment or in any other manner by which agreements are discharged.
What does s67 say about who can commit a conspiracy?
s67, CA 61
A husband and wife or civil union partners can commit conspiracy.
What was found in R v White regarding the people involved in a conspiracy?
The conspiracy may be by a person who could not commit the crime and where you can prove that a suspect conspired with other parties whose identities are unknown, that suspect can still be convicted even if the identity of the other parties is never established and remains unknown.
Churchill v Walton
The conspirators need not know it is an offence but must know the act is unlawful.
How is knowledge defined in Simester and Brookbanks?
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 was held in 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.
For the purposes of the liability for Accessory After the Fact, how is Party defined in the Crimes Act? What are the elements?
Party - s66(1), CA 61
Defined as being anyone who
a) Actually commits the offence
b) Does or omits an act for the purpose of aiding any person to commit the offence
c) Abets any person in the commission of the offence
d) Incites, counsels, or procures any person to commit the offence
R v Mane
To be considered an accessory the acts done by the person must be after the completion of the offence.
For the purposes of the liability for Receiving when is receiving complete according to the Crimes Act?
Receiving
Receiving is complete as soon as the offender has, either exclusively or jointly with the thief or any other person, possession of, or control over, the property or helps in concealing or disposing of the property,
s246(3), CA 61
R v Donnelly as it appears in the element of ‘Receives’ in the liability for Receiving.
R v Donnelly
Where stolen property has been physically recovered by the Police it is legally impossible to commit the crimes of receiving or attempted. It must be legally possible to receive the property.
R v Lucinsky
The property received must be the property stolen or illegally obtained (or part thereof) and not some other item for which the illegally obtained property had been exchanged or which are the proceeds.
