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association Flashcards

1
Q

Definition of property

A

property includes and real and personal property, any estate or interest in any real or personal property, money, electricity and any debt and anything in action and any other right or interest.

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2
Q

Definition of Taking

A

for tangible property, theft is committed when the offender moves the property or causes the property to be moved

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3
Q

Definition of Obtained

A

means to obtain or retain for himself of any other person

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4
Q

Definition of imprisonable offence

A

Any offence punishable by imprisonment

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5
Q

Def: tainted property

A

any property that has wholly or in part been
1. acquired as a result of significant criminal activity or
2. directly or indirectly derived from a significant criminal activity and
3 includes any property that has been acquired as a result of, or directly/indirectly derived from more than 1 activity if at least 1 of these activities is a significant criminal activity

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6
Q

What is the mens rea for Conspiracy

A

The offenders mental intent must be to commit the full offence. Where this intent does not exist, no crime has been committed

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7
Q

Withdrawing from the agreement - conspiracy

A

a person withdrawing from the agreement is still guilty of conspiracy as are those who become party to the agreement after it has been made.
However a person can effectively withdraw before the actual agreement has been made.

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8
Q

When does conspiracy end
R v Sanders

A

R v Sanders
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 the completion of its performance or abandonment or in any other manner by which agreements are discharged.

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9
Q

What is circumstantial evidence

A

circumstantial evidence from which a person intent may be inferred can include
-the offenders action and words before during or after the event
-the surrounding circumstances
-the nature of the act itself

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10
Q

Conspiring with a spouse

A

A person is capable of conspiring with his/her spouse/civil union partner or with spouse/civil union partner and any other person

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11
Q

What is the definition of Conspires?

A

A conspiracy does not simply rely on the intention of 2 r more people to commit an offence. It relies on the subjects (2 or more) forming an agreement to do an unlawful act, or to do a lawful act by unlawful means. Where there is only the intention to commit the offence without an agreement, then no offence is committed.

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12
Q

admissibility of evidence (conspiracy)

A

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 rule and as such conspirators should be jointly charged.

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13
Q

Suspects - What is the investigative procedure for Conspiracy.

A

Interview the people concerned and obtain statements to establish
1. the existence of an agreement to commit an offence or
2. the existence of an agreement to omit to do something that would amount to an offence and,
3. the intent of those involved in the agreement
4. the identity of all people concerned where possible
5. whether anything was written, said or done to further the common purpose.

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14
Q

Charging - for Conspiracy

A

Generally, charges of conspiracy should NOT be filed in situations where the specific (substantive) offence can be proved.
It may be appropriate to include a charge of conspiracy if the substantive charge does not represent the total criminality

a supervisors approval should be sought before a conspiracy charge is filed

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15
Q

What must be proved for an attempts to commit an offence

A

The identity of a suspects and,
that they intended to commit an offence and
they did or omitted to do something to achieve that end

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16
Q

several acts together may constitute an attempt

A

actions don’t need to be considered in isolation, sufficient evidence of intent was available from the events leading up to that point

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17
Q

Test for proximity, what questions need to be asked?

A

Has the offender done anything more than get himself into a position from which he could embark on an actual attempt or…

Has the offender actually commenced execution, this is to say he has taken the step in the crime itself.

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18
Q

Example of legally impossible act - R v Donnelly

A

Where stolen property has been returned to the owner or legal title to any such property has been acquired by any person, it is not an offence to subsequently receive it, even though the receiver may know that the property had previously been stolen of dishonestly obtained.

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19
Q

What conditions must apply for an attempt conviction to succeed?

A

An intent - to commit an offence
An act - they did or omitted to do something to achieve that end
Proximity - that their act or omission was sufficiently close

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20
Q

whe is an offence deemed as Sufficiently proximate

A

the accused must have started to commit the full offence and have gone past the phase of beyond mere preparation ( the all but rule)

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21
Q

Once the acts are sufficiently proximate, the defendant has no defence that…

A

They were prevented by some outside agent from doing something that was necessary to complete the offence - interruption from police

They failed to complete the full offence due to ineptitude, inefficiency, or insufficient means - insufficient explosive to blow the safe

They were prevented from committing the offence because an intervening event made it physically impossible - removal of property before the intended theft

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22
Q

When are you not able to charge for attempts? (3)

A
  1. If criminality depends on recklessness or negligence, eg manslaughter
  2. If an attempt to commit an offence is included within the definition of that offence, eg assault
  3. If the offence is one that the act has to have been completed in order for the offence to exist at all .
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23
Q

Ingredients of Parties to offences S66

A

Everyone is a party to and guilty of an offence who
Actually commits the offence or,
does or omits an act for the purpose of aiding any person to commit the offence or,
Abets any person in the commission of the offence or,’
Incites, counsels or procures any person to commit the offence

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24
Q

Definition of Aids

A

means to assist in the commission of the offence, either physically or by giving advise or information. In order to aid, the presence of the person offering the aid is not required at the scene, before, or at the time of the offence being committed.

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25
Q

Definition of Abets

A

means to instigate or encourage, this is to urge another person to commit the offence. As with Aiding, the presence of the abettor at the scene of the offence at the time of its commission in not required

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26
Q

Incites, counsels or procures

A

the 3 catagories that enable someone to be convicted as a party (incites, counsels or procures) takes place before the offence is carried out and generally dose not require the attendance of the person at the scene at the time of thre incident. However there involvement may conticue on to a point when they are actually present at the scene.

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27
Q

Definition of incites

A

to rouse, stir up stimulate ,urge or spur on a person to commit an offence

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28
Q

Definition of Counsels

A

intentionally instigates the offence by advising a person on how to best commit an offence, or planing the commission of an offence for another person.

do not need to know the clear detail of the offence to be committed- just that they know an offence was intended.

eg. a letter was gained by the offenders instructing how to blow up a safe, the letter writer was charge as aperty to even though they were not aware of the time/date/place it happened

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29
Q

Definition of procures

A

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

eg. woman obtains the services of a hit man to kill her husband and offers money or sexual services or payment.

30
Q

what needs to be proved for party to an offence

A
  1. the Identity of the defendant, and
  2. an offence has been successfully comitted, and
  3. the elements of the offence (s66(1) have been satisfied

when more than one offence the elements must be satisfied for each offence separatly.

31
Q

when must participation have occured to be considered a party

A

participation must hae occured before or during (contemporaniously with) the commission of the offence and before the completeion of the offence.

32
Q

what 2 methods by multipule offenders are considered to be an principle offender

These are the main points in R v Renata

A
  1. each offender satisfies the elements of ther offence committed.
  2. each offender separatly satisfies part of the Actus Reus - they share the same intent
33
Q

R v Renata

A

The court held that there where the principle offender cannot be identified, it is sufficient to prove that each indervidual accused must have been either the principal or a party in one of the was contemplated by s66(1)

34
Q

Section 66(2) what the are the elements of Party to a secondary Offence

A

Where 2 or more people form a common intention to prosecute any unlawful purpose and to assist each other therein
Each 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

35
Q

actual proof of assistance is required - what are examples of these?

A

*keeping lookout for someone committing burglary
*Providing a screwdriver to someone interfering with a vehicle
*Telling an associate when a neighbour is away from there home to allow the opportunity for them to commit a burg

36
Q

R v Ashton - legal duty

A

An example of a secondary party owing a legal duty to the 3rd person or to the general public is a person teaching another person to drive. That person is, in NZ, under a legal duty to take reasonable precautions, because under s156 CA61 he is deemed to be in charge of a dangerous thing.

37
Q

Secondary Offenders, parties to offences

A

Those who assist the principal offender(s) either before during the commission of an offence are considered secondary offenders, their liability generally lies within the scope of S66.

Can not be convicted as a party for an offence that has already complete, but could be liable as an accessory.

38
Q

How to establish involvement of parties

A
  1. A reconstruction of the offence committed, this would indicate that more that one person was involved, or that the principal offender had received advice or assistance.
  2. The principal offender acknowledging or admitting that others were involved
  3. A suspect or witness admitting to providing aid or assistance when interviewed
  4. a witness providing evidence of another persons involvement based on there observations.
  5. receiving information indicating that others were involved in the offence.
39
Q

What needs to be proven for accessory after the fact

A
  1. that the person (A) who is received, comforted or assisted by the accessory (B) is a party (principal or 2ndry party) to an offence that has been committed.
  2. That at the time of receiving, comforting or assisting that person (A), the accessory (B) knows that person (A) was a party to the offence.
  3. That the accessory (B) received, comforted or assisting that person (A) or tampered with or actively suppressed any evidence against that person (A),
  4. That at the time of the receiving, comforting or assisting etc, the accessory’s (B) purpose was to enable that person (A) to escape after arrest to avoid arrest or conviction.
40
Q

What are the exceptions for a spouse/civil union for AATF

A

You can not be charged with being an AATF to your spouse, or to your spouse and another party ( when they are working together) same fir a civil union but not a defacto relationship

41
Q

What does knowing mean - having been a party to an offence.

A

Knowing means, knowing or correctly believing - the belief must be correct. Where the belief is wrong a person can not now something

42
Q

R v Crooks (knowledge)

A

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

43
Q

Knowledge must exist at the time assistance is given, what must the accessory possess

A

the knowledge that
* an offence has been committed, and
* the person they were assisting was a party (principal or 2ndry) to that offence/.

Where knowledge comes about after the assistance has been given they are not liable as an accessory.

44
Q

what are the intentional acts of AATF

A

the accessory must do a deliberate intentional act, theses include
* receives
* comforts
* assists
* Tampers with evidence
* actively suppresses evidence

45
Q

R v Mane

A

to be considered an accessory the acts done by the person must be after the completion of the offence.

46
Q

What does actively suppressing evidence encompass

A

it encompasses acts of concealing or destroying evidence against an offender.

47
Q

What are the 3 things the accessory can enable the offender to do

A
  • escape after arrest
  • avoid arrest
  • avoid conviction
48
Q

What is evidence of perjury, false oath or false statement

A

That if a person may have made a previous statement that was not on Oath, which is contradicted by a subsequent statement on Oath, it is not sufficient evidence alone. Without a confession to establish perjury in respect of the latter statement

49
Q

Fabricating Evidence - Elements

A

Everyone is liable to imprisonment for a term not exceeding 7 years who,
with intent to mislead any tribunal holding and judicial proceeding to which section 108 applies,
fabricates evidence by any means other than perjury.

50
Q

what are the elements of perjury?

A
  • a witness making any
  • assertion as to any matter of fact, opinion, belief or knowledge
  • in any judicial proceeding
  • forming part of that witnesses evidence on oath
  • known by that witness to be false and
  • intended to mislead the tribunal
51
Q

what is a witness -

A

a witness is a person who gives evidence and is able to be cross examined in a proceeding. includes a person who is actively engaged in the process of giving evidence and/or one who has previously given evidence. The term also includes a person who will give evidence.

52
Q

What is opinion evidence by a Lay witness

A

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

53
Q

Intention to mislead

A

the offence of perjury is complete at the time the false evidence is given accompanied by an intention to mislead the tribunal.
No defence if the witness later recants and admits to the false evidence previously given,

54
Q

What did the courts find in R v Clealand - perjury

A

highlights that if the person may have made a previous statement that was not on oath, which was contradicted by a subsequent statement on oath, it is not sufficient evidence alone, without a confession, to establish perjury in respect of the latter statement

55
Q

what are examples of conspiring or attempting to mislead justice (5 or 6)

A
  • 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 a false information to obstruct there inquiries
  • supplying false information to probation officers
  • assisting a wanted person to leave the country
  • arranging false alibi
  • threatening or bribing jury members
56
Q

what does the act of receiving require?

A
  1. there must be property which has been stolen or has been obtained by a crime
  2. the accused must have received that property, which requires that the receiving must be from another
57
Q

8 examples of circumstantial evidence of guilty knowledge

A
  1. possession of recently stolen property
  2. nature of the property - type, value
  3. purchased well under value
  4. removal of identifying features
  5. receipt of goods at an unusual time
  6. receipt of goods at an unusual place
  7. receipt of goods in an unusual way
  8. lack of original packaging
58
Q

When can you commence a prosecution for perjury

A

where it is recommended by the courts or you are directed to do so by the commissioner of polices. You may however being enquiries into an allegation of perjury without reference to the court or commissioner

59
Q

when is the act of receiving complete

A

the act of receiving any property stolen or obtained by any other crime 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.

60
Q

Control over property

A

where property is located at a place, over which the receiver has control, then the prosecution must prove the receiver arranged for the property to be delivered there, or alternately, that on discovering the property, he or she intentionally exercised control over it - intent to possess the property must also be satisfied.

61
Q

Doctrine of recent possession

A

it is the presumption that, where the defendant acquired possession willingly, the proof of the possession by the defendant or property recently stolen in the absence of a satisfactory explanation.
Evidence to justify a belief and finding that the possessor is either the thief or the receiver or has committed some other offence associated with the theft of the property, ie burglary or robbery.

62
Q

R v Donnelly - legally impossible

A

where stolen property has been physically recovered by Police, it is legally impossible to commit the crimes of receiving or attempted receiving in respect of it, although there may be evidence of conspiring to receive property dishonestly obtained.

63
Q

explain concept of title and voidable title

A

title - a right or claim to ownership of property, legal right to possession

voidable title - title obtained by deception is voidable title, this means it can be voided by the seller (complainant), although title is voidable it is still a title. Until the title is voided, the person committing the deception has title to it and is able to offer this title to anyone who subsequently acquires it in goof fair.

64
Q

to void title the person deceived must?

A
  • communicate directly with the deceiver, or
  • take all reasonable steps possible to bring it to the notice of the deceiver, or
  • advised police of the circumstances of the deception
65
Q

Money laundering - Conceal means

A

in relation to property, means to conceal or disguise the property and includes without limitations
a. to convert the property from one for to another
b. to conceal or disguise the nature, source, location, disposition r ownership of the property or any interest in the property.

66
Q

Deal with means

A

in relation to any property means to deal with the property in any manner and by and any means and includes without limitations
a. dispose of, weather by sale/purchase/gift or otherwise
b. transfer possession
c. to bring the property into NZ
d. remove the property from NZ

67
Q

Interest means

A

A legal or equitable estate or interest in the property, or
A right, power or privilege in connection with the property

68
Q

What is required to be proved in ML

A

When considering the principal charge of ML under s243(2), proof of the following 4 elements is required.
1, Dealing with property or assisting with such dealing
2. the source of the property being the proceeds of an offence punishable by 5 years imprisonment or more committed by another person
3. Knowledge or belief that the property was the proceeds of such an offence, or recklessness as to whether it was the proceeds of such an offence
4. an intention to conceal the property

69
Q

What are the elements of ML s243(3)

A

in respect of any property that is the proceeds of an offence
engages in a money laundering transaction
knowing or believing that all or part of the property is the proceeds of an offence
or being reckless as to whether or not the property is the proceeds of an offence

70
Q

what is unlawfully benefiting from criminal activity s7 - criminal proceeds

A

In this act the context otherwise requires, a person has unlawfully 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.

71
Q

What does the criminal proceeds act propose to do

A

Eliminate - the chance for persons to profit from undertaking or being associated with significant criminal activity and,
Deter - significant criminal activity, and
Reduce - the ability for criminals and a persons associated with crime or significant criminal activity top continue or expand criminal enterprises
Deal - with matters associated with foreign restraining orders and foreign forfeiture orders that arise in NZ

72
Q

what is the criminal proceeds Act about

A

to strip assets and wealth from individuals and groups involved in organised crime.

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