association Flashcards
what is a conspiracy
an agreement between two or more people to commit an offence.
Conspiracy S310 Crimes Act 1961
ELEMENTS
Conspires
with any person
to commit any offence
or to do
or omit
in any part of the world
anything of which the doing or omission in NZ
would be an offence.
CONSPIRES
A conspiracy is an agreement between two or more people to commit an offence.
CL: 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 do a lawful act by unlawful means.
So long as such a design rests in the intention only it is not indictable.
When two agree to carry it (the intended offence) into effect, the very plot is an act in itself.
ANY PERSON
Atleast one or more (real) persons.
CL: R V WHITE where you can prove that a suspect conspired with other parties (one or more people) whose identities are unknown, that suspect can still be convicted even if the idenity of the other parties is never established and remains unknown.
COMMIT AN OFFENCE
Any act/ommission that is punishable on conviction under any enactment.
TO OMIT
the action of excluding or leaving out someone or something/ failure to fulfil a moral /legal obligtaion.
ANY PART OF THE WORLD
It is an offence to conspire to commit an offence in NZ and in any part of the world that would be an offence in NZ.
Defence: The person has a defence if they are able to prove that the act is not an offence under the law of the place where it was to be committed.
ANYTHING OF WHICH THE DOING OR OMMISSION IN NZ WOULD BE AN OFFENCE
A person charged with conspiracy need not have been in NZ at the time of the act/ommission.
Though to be charged by NZ courts must be physically in NZ and acted in continuance of that conspiracy.
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 a lawful act by unlawful means.
so long as such a design rests in inttention only
it is not indictable.
When two agree to carry it (then intended offence) into effect, the very plot is an act in intself.
Omission
intentional failure to act or exclude something or someone. failure to fulfil a moral/legal obligation.
is a person who withdraws from the agreement still guilty of conspiracy?
Yes, they are still guilty of a conspiracy, as is those people who become party to the agreement after it has been made.
A person can withdraw before the actual agreement is made, meaning they are not liable for conspiracy.
when is a conspiracy complete?
when the agreement has been made with the required intent.
No further involvement is required from any of the parties.
R v SANDERS
a conspiracy does not end with the making of the agreement.
the conspiractorial agreement continues in operation and therefore in existance until it is ended by completion of its performance or abandonment or in any other manner by which agreements are discharged.
actus reus and mens rea of conspiracy
Mens rea:
an intention of those involved to agree.
an intention to commit the full offence
Actus reus:
the actual agreement between two or more people to carry out illegal conduct.
what makes up the actus reus of conspiracy?
physical acts, words or gestures which form their agreement.
do they need to know how they will carry out the plan for them to be liable for a conspiracy?
no. a simple word agreement will suffice.
are you party to a conspiracy if are present during that agreement?
mere presence and knowledge does not = liable to conspiracy.
If you were merely present but were not a part of/lacked intent- you are not liable.
Intent
deliberate act, specific outcome
R V COLLISTER
intent inferred by circumstance.
how do you prove intent
offenders words, actions, before during or after.
the surrounding circumstances
the nature of the act itself.
R v WHITE
Where you can prove that a suspect conspires with other parties (one or more people) who identities are unknown, that suspect can still be convicted even if the identity of the other parties is never established and remains unknown
can you conspire with a spouse/partner?
S67 CA 1961- a person is capable of conspiring with their spouse/civil union partner/spouse.
are offences and crimes the same thing?
they are words used interchangably in statute and there is no material difference.
they both describe any act or omission that is punishable on conviction under any enactment.
act means
to take action/ do something/ bring about a result
Jurisdiction and offences-
can you conspire to commit an offence in NZ while not physically in the country?
it is an offence to conspire to commit an offence in NZ, though the acts or omissions may take place outside of NZ.
It is sufficient if one act or omission forming part of the offence occured in NZ.
conspiracy entered outside of NZ
Conspiracy committed outside of new zealand is chargable if that person then enters NZ and is physically present for the continuance of that conspiracy.
NZ courts have no juristiction over a person who enters a conspiracy abroud but never comes to NZ.
defense Conspiracy to enter an offence overseas
it is an offence to conspire to commit an offence / omit an act in any part of the world that would be an offence in NZ.
Though the person has a defence if they are able to prove that the act is not an offence under the law of the place where it was to be committed.
conspiracy and provisions against specific legislation includes
defeating justice
false accusations
murder
piracy
treason
what should you cover when interviewing witnesses 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.
what should you cover when interviewing suspects re conspiracy?
*the existence of an agreement to commit an offence, or
*the existence of an agreement to omit to do something that would amount to an offence, and
*the intent of those involved in the agreement
*the identity of all people concerned where possible
*whether anything was written, said or done to further the common purpose.
why is undesirable to lay a substantive charge and conspiracy charge?
*The evidence admissible only on the conspiracy charge may have 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 defendant’s 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 unnecessarily 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 means that each charging document may be heard at separate trials.
giving evidence against a co-conspirator
There must be independent evidence of the conspiracy for a conspirators evidence to be admitted as evidence against a co-conspirator.
Can you charge someone with conspiracy if they are physically unable to carry out the offence?
Yes you can charge someone with conspiracy even if they are incapable of carrying the substantive offence.
Can I lay charges for conspiracy and the substantive offence?
If you can prove a substantive offence, only lay charges for the substantive offence, unless it fails to adequately represent the total criminality of the offending encountered.
S72 Crimes Act 1961 Attempts
does or omits an act
for the purpose
of accomplishing his object
is guilty of an attempt
whether or not in the circumstances
it was possible to commit that offence
elements of an attempt offence
intent - to commit an offence
act- that they did/ omitted to do something to achieve their purpose
proximity- that their act or omission was sufficient close.
(must be legally possible does not need to be impossible to commit)
what does mens rea mean?
guilty mind- refers to intent and knowledge of act.
R V RING
the offenders intent was to steal property by putting his hand into the pocket of the victim.
unknown to the offender the pocket was empty.
despite this he was able to be convicted of attempted theft because his intent to steal whatever property might have been discovered inside the pocket was present in his mind and demonstrated in his actions.
the remaining elements were also satisfied.
what does sufficiently proximate to full offence mean
.
did they go beyond preparation and begin to commit full offence?
Start/ did act or omission with intention to commit full offence.
examples of attempts
lying and waiting/ searching for a victim.
reccy on scene for potential crime.
enticing victim to go to scene.
unlawfully entering a structure/vehicle where they intend to commit an offence.
R V HARPUR
The court may have regard to the conduct viewed cummulatively up to the point when the conduct stops… conduct may be considered in its entirety. considering how much remains is always relevant though not determinative.
simester and brookbanks suggested the following questions in determining the difference between preparation and an attempt
- has the offender done anything more than getting themselves into postion from which they could embark on an actual attempt?
- has the offender actually commenced execution of crime?
who decides on the law of proximity?
the judge.
impossibility- attempts
refers to physically impossible not legally imposible.
Higgins v Police
where plants being cultivated as cannabis are not in fact cannabis, it is physically not legally impossible to cultivate such prohibited plants. accordingly it is possible to commit the offence of attempting to cultivate cannabis.
Police v Jay
a man bought hedge clippings believing they were cannabis.
legally impossible- attempts
when the completed act would not be an offence, even if the suspect had criminal intent.
R V Donnelly
Where stolen property has been returned to the owner or legal title to any such property has been acquired by any person, it is not an offence to subsequently receive it, even though the receiver may know that the property has previously been stolen or dishonestly obtained.
is an attempt complete if the offender withdraws?
if the offender changes their mind or makes a voluntary withdrawal after completing an act that is sufficiently proximate then it is an offence
once the offender is sufficiently proximate they can no longer use the defences?
They were prevented by some outside agent from doing something that was necessary to complete offence.
Failed to complete the full offence due to ineptitute.
were prevented from committing the offence because an intervening event made it physically impossible.
functions of a judge and jury re attempts
judge decides whether the offender left prep stage and entered the attempt stage.
Passed onto jury who must decide if mens rea/ actus reus exists.
you cannot charge someone with an attempt under these circumstances
the criminality depends on recklessness or neglience.
at attempt to commit an offence is included within the definition of the offence.
the offence is such that the act has to have been completed in order for the offence to exist at all.
filing charges- charged with full offence
charged with full offence- found guilty of an attempt= convicted with an attempt.
filing charges- charged with an attempt
defendant charged with an attempt but found guilty of full offence= convicted with an attempt
framing the charge- attempts
add the phrase “attempted to” before ingridents.
section written out as [main section] & s72 Crimes Act 1961.
what is the max penality for an attempt
when there is no punishment expressly perscribed for that attempted offence- 10 years.
what must you prove re an attempt
ID of suspect.
intended to commit full offence.
did/ommited something to achieve their object.
who is a party to an offence
any person involved at any or all stages of preparing for, attempting or commiting the offence.
S66(1) Crimes Act 1961 Parties to offences
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
d) incites, counsels, or procures any person to commit the offence
S70 Crimes Act 1961 offence committed other than offence intended
1) incites/ councels/ procures
another to be a party to an offence
even if the offence was committed in a way which was different from that which was incited/ counsels/suggested.
2) incites/ councels/ procures
another party to be a party in an offence
is party to every offence which that other person commits in consequence of such inciting, counselling, procuring.w
what do you need to prove- parties to
the ID of the defendant
an offence successfully committed.
the elements of the offence (S66 have been satisfied)
when must have participation occured- parties to?
before or during the offence.
what is an accessory after the fact?
a person providing assistance to the primary or secondary party of an offence following the commission of a crime.
is an accessory after the fact liable for the original offence?
no they are only liable as an accessory after the fact under S71 and S312 Crimes Act 1961
R V PENE
a party must intentionally help or encourage- it is insufficient if they were reckless as to whether the principal was assisted or encouraged.
what is a principle party?
those who satisfy the actus reus / mens rea of the intended offence (there can be more than one principle party)
what is a secondary party?
those who assist abet incite counsell or procure under S66.
the acts of the secondary party must be before or during the principle offence.
A secondary party does not need to commit the intended offence themselves.
R V RENATA
the court held that where the principle offender cannot be identified , it is sufficient to prove that each individual accused must have been either the principle party or party in one of the ways contemplated in S66.
Aids
to aid means to assist in an offence either physically or by giving advice and information.
A person providing aid does not need to be physically present during the actual offence.
Larkins V Police
while it is unnecessary that the principle should be aware that he or she is being assisted, there must be proof of actual assistance.
examples of assistance
keeping lookout for someone
providing a screwdriver to someone interfering with a vehicle.
telling an associate when a neighbour is away from their home so to allow the opportunity to commit a burg.
can you aid someone by omission?
yes if there was a legal duty to act and they chose not to which allowed an offence to occur then that is aiding by omission.
Abets
to instigate or encourage someone to commit an offence.
Does not require the person abetting to be during the actual commission of the offence.
passive acquiescence
mere presence does not make someone liable for abetting however if they are present during the commission of an offence and they have a special relationship with the offender or have a duty to act and fail to do so, this may create liability
Ashton v Police
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 dive. That person is, in NZ under a legal duty to take reasonable precautions, because under s156 CA 1961 he is deemed to be in charge of a dangerous thing
R V RUSSELL
the court held that the accused was morally bound to take active steps to save his children but by his deliberate abstention from so doing and by giving the encouragement and authority of his presence and approval to his wife’s act he became an aider and abetter and thus a secondary offender.
Incite
to rouse, stir up, stimulate, animate, urge, spur on any person to commit an offence.
takes place before the commission of an offence
councils
to advice a person how to best commit an offence, or planning the commission of an offence.
takes place before the commission of the offence.
Procures
deliberately causes the principle party to commit an offence
in which ways may procurement occur?
fraud, persuasion, words of conduct.
common intention and joint charging.
when two or more offenders come to an agreement to commit an offence together, they are liable for that offence and any separate offending that occurs as a probable consequence of the original offence.
However if an offender goes beyond what was agreed upon by the others involved then they may not be liable for that particular offending.
R v Betts and Ridley
an offence where no violence is contemplated and the principle offender in carrying out the common aim uses violence, a secondary offender taking no part in it would not be held liable for the violence used.
probable consequence
a subjective appreciation on whether offender A forseeing the likelihood that their co-offender would commit other offences while committing the original offence.
it is sufficient if it can be proven that offender A knew there was risk of other offences taking place.
what are the two qualifications to be satisfied under the general rule in relation to probable consequence
- Did not need to know/ foresee the precise manner in which offence b might be committed. Just needed to realise that offence type was possible in the circumstances.
- Did not need to foresee the consequences of offence B.
joint enterprise- murder (parties to)
a person charged as a party to a murder will be guilty of murder if they:
intentionally helped or encouraged it.
foresaw murder by a confederate as a real risk in the situation that arose.
joint enterprise- manslaughter
a person charged as a party to manslaughter will be guilty of manslaughter if they:
knew at some stage there was real risk of killing short of murder.
foresaw a real risk of murder but the killing occured in circumstances different from those contemplated.
can be expected to have known there was an ever-present real risk of killing.
innocent agents
An innocent agent is someone who is unaware of the significance of their actions.
when an offender uses an innocent agent to bring about the actus reus, the innocent agent is not regarded as a participant in the offence, they are considered a mechanism.
An innocent agent can not be convicted as a secondary party.
establishing involvement of parties
involvement of parties might be established by…
A reconstruction- this may indicate if more than one person was involved.
principle offender admissions.
Suspect/witness admissions.
witness statements.
receiving information that others were involved.
is there a difference in the time limit of charging a principle offender vs secondary party.
the statute of limitations is the same for both parties.
can you still charge a secondary party if the prinicple can not be convicted
You can still convict a secondary party even if the principle cannot be convicted due to circumstances such as infancy insanity, death, can not be located.
can you charge an accomplice with a less offence than the principle party?
Yes you can for example, an accomplice may be charged with manslaughter when the principle is being charged with murder.
can a secondary party avoid liability for an offence?
yes if they can successfully withdraw before the commission of or attempt of an offence.
formulating charges under S66
at the beginning of the wording for the offence commited add ‘was party to’…
You must also add at the end of the charge.
“in that they did… aid/abet/incite/ councel/ procure”
A combo of these words may be used.
if S66 is not added to the charges, when should the prosecutor raise that the defendant was parties to an offence?
before the SOF is read out at guilty plea.
before evidence is heard in a judge alone trial.
What does section 66(2) refer to?
situations where the people involved are party to the intended offence and a party to any secondary offences committed in pursuance of the intended offence.
what is an accessory after the fact?
a person who assists the offender after an offence or tampers/destroys evidence to assist the offender avoid or escape arrest
Accessory after the fact S71 Crimes act 1961
knowing any person
to have been party to an offence
reveives, comforts, or assists
that person
or
tampers with/ actively supresses
any evidence
against him
in order to enable him
to escape after arrest
or avoid arrest
or conviction
what needs to be proven- accessory after the fact?
the person who was received, conforted, assisted was a principle or secondary party to an offence.
that the person who received, conforted, assisted knew that the offender was party to an offence.
that the person who received, conforted, assisted or tampered / suppressed evidence.
that the person who received, conforted, assisted did so for the purpose of enabling the offender to escape/avoid arrest/conviction
must the offence be commited for a person to then be an accessory?
the offence must be completed by the principle/secondary offender seeking assistance for the person assisting to be charged with being an accessory.
Simester and brookbanks - knowledge
knowledge is knowing or correctly believing.
You can beleive something wrongly but you cannot know something false
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.
knowledge- accessory after the fact
knowledge must exist at the time of the act.
They must know that an offence has been committed.
and
the person they are assisting was a party (principle/secondary) to that offence.
If they become aware of this after giving assistance they are not liable as an accessory.
R V BRIGGS
as with a receiving charge under 246(1) knowledge may also be inferred from wilful blindness or a deliberate abstention from making enquiries that would confirm the suspected truth.
when is a person considered wilfully blind?
the person deliberately shuts their eyes and fails to enquire. this is because they knew what the answer would be.
the means of knowledge are easily at hand and the person realised the likely truth of the matter but refrains from inquiring in order not to know.
actus reus of accessory after the fact
intentionally:
Actively suppress evidence.
assist
comfort
tamper with evidence.
receive
with the purpose of assisting evading arrest/conviction
R V MANE
to be considered an accessory the acts done by the person must be after the completion of the offence.
receives- accessory
harbouring/ providing shelter
comforting- accessory
provides things such as food/ clothing
assisting- accessory
assist in any way.
what does it mean to help evade justice- accessory.
acts done by accessory must have helped the other person in some way to evade justice.
tampers with evidence- accessory
alter evidence
actively suppress evidence- accessory
concealing/ destroying evidence.
must you prove that the items destroyed by the accessory were evidence (had they not been destroyed)
only have to prove that it could be evidence.
can you charge someone with attempting to be an accessory
yes.
intent of an accessory
assist the offender to
escape after arrest
avoid arrest
avoid conviction
can you still convict an accessory if the main offender is aquitted of the original offence?
yes, unless conviction is inconsistent with the acquittal of the original offender.
would you charge someone with accessory after the fact if they received property?
receivers of dishonestly obtained property would be charged with receiving not accessory after the fact as they are generally not receiving property with intent to assist the offender evade justice.
what is the punishment for purjery
7 years.
Perjury s108 crimes act 1961
a witness making any
asertion as to any matter of fact/ opinion/ belief/ knowledge
in any judicial proceeding
forming part of that witness’s evidence on oath
known by the witness to be false and
intended to mislead the tribunal.
what is a witness?
a person who gives evidence and is able to cross examined in a proceeding.
assertion
something declared or stated positively, often with no support or or attempt made at furnishing evidence/proof of assertions accuracy
matter of fact
a fact is a thing done, actual occurrence or event as presented by witness testimony/evidence
opinions
a statement of opinion that tends to prove/disprove a fact
a statement of an opinion is not admissible in a proceeding unless provided under s24/s25 evidence act 2006
section 24 evidence act 2006 general admissibility of opinions
a witness may state an opinion in evidence in a proceeding if that opinion is necessary to enable the witness to communicate/enable the fact finder to understand what the witness saw/heard/perceived.
section 25 evidence act
deals with expert evidence
belief
a subjective feeling regarding validity of an idea/fact
oath
a declaration given before a person who has authority to administer an oath which invokes some religious belief and says that a thing is true and right
affirmation
verbal or written declaration before a person who has an authority to administer an oath saying that a thing is right in true (no religious belief)
declaration
a witness under 12 years old may make a declaration which is a promise to tell the truth
perjury is complete when?
at the time the false evidence is given accompanied by an intention to mislead.
do you require corroboration in a criminal proceeding?
it is not necessary in a criminal proceedings for the evidence on which the prosecution relies to be corroborated except with respect to the offences involving perjury, false oaths, and false statements and declarations.
examples of misleading justice
preventing a witness from testifying
threatening/ bribing witnesses.
concealing the fact an offence has been committed.
giving police false info.
is conspiring to defeat course of justice civil or criminal?
both
when can you commence a prosecution for perjury?
when directed by the courts or by the commissioner of police.
you may investigate perjury without permission from courts/ commissioner of police.
how to perjury complaints arise?
someone complained about another person.
a judge may state or direct in a court recommendation that the police undertake inquiries into the truth of the of the evidence given by a witness.
what happens if there is no corroborating evidence re perjury?
the judge must stop trial- defendant acquitted of charge.
two main points to be covered when interviewing a suspect in relation to perjury?
whether they knew the assertion was false
whether they intended to mislead the tribunal governing proceedings
what two main categories do receivers of stolen property fall into?
opportunists taking advantage of a bargain.
professionals who receive stolen goods and organise crimes as a business operation
you must satisfy three elements re receiving charge
- property was stolen/obtained by an imprisonable offence.
- received the property from another person.
- have knowledge that the property was stolen/ illegally obtained.
when is the act of receiving complete?
when they have (exclusively/ jointly) become in posssession of, have control over the property or helped conceal or dispose of the property
R V COX
possession involves two elements.
Physical and mental.
the physical element is actual or potential physical custody or control.
the second, mental element is a combination of knowledge and intent.
CULLEN V R
there are four elements of possession for receiving
a) awareness that the item is where it is
b) awareness that the item has been stolen.
c) actual or potential control of the item
d) an intention to exercise that control over the item.
control over property
must show the intentionally exercised control over it, either personally or through another person.
what must you prove when assisting the disposal / concealment of property/- receiving
must prove guilty knowledge and actual assistance.
R V LUCINSKY
the property receieved must be the property stolen or illegally obtained (whole or part) and not some other item for which the illegally obtained property had been exchanged or which are the proceeds.
theft
tangible property- theft is committed when the property is moved in some way.
title
a right or claim to the legal ownership of property.
R V KENNEDY
the guilty konwledge that the thing has been solen or dishoestly obtained must exist at the time of receiving.
Cameron V R
reckless is established if they recognise that there was a real possilbility that…
Their actions would bring about a prescribed result… and having regard to that risk those actions were unreasonable.
circumstantial evidence of guilty knoweldge- receiving
purchase at gross under value.
secrecy of receiving goods
possession of recently stolen property.
receipt of property at unusal time/place.
can a co-defendant give evidence against another offendeR?
they may be compelled to give evidence against a co-defendant if they are being tried seperately or the proceeding against the associate defendant has been determined/ concluded.
doctrine of recent possession
allows for proofof theft or receiving by way of circumstantial evidence, ie, they came into possession soon after the property was illegally obtained.
Only applies when the offender is found in possession of the property.
Does not apply re concealing/disposing of property.
what is ‘recent’ dependant on- doctrine of recent possession
the nature of the property
the surrounding circumstances
is it receiving when the person who receieves the property ‘ordered’ the property be stolen in the first place?
No that is parties to
is it an offence in NZ if the property received was property from outside the country?
only if the property was received in NZ.
parties to receiving (thief)
where a thief delivers stolen property to a receiver, who to his knowledge is aware the property is stolen ( the receiver is aware), the thief is liable to parties to the receiving.
is it possible to receive property which has been restored (ownership)
you cannot receive stolen property if it has been retored to its owner or by police acting as an agent on behalf of the owner.
money laundering 243 Crimes act 1961
CONCEAL)
conceals or disguises property, inlcuding without limitation:
a) convert into something else.
b)disguise its nature source location disposition ownership.
money laundering 243 Crimes act 1961
(DEALS WITH)
dispose of property through sale, gift, purchase.
transfer possession.
bring property into/ out of New Zealand.
money laundering 243 Crimes act 1961
(INTEREST)
right power or privilige in connection with the property
money laundering 243 Crimes act 1961
(PROCEEDS)
any property derived or realised directly or indirectly by any person from the commission of the offence
what is money laundering
dealing with proceeds of criminal activity in such a way as to make the proceeds appear to have been legitately aquired.
money laundering cycle.
placement- cash enters the financial system.
layering- money is involved in a number of transactions.
intergration- money is mixed with lawful funds or intergrated back into the economy with the appearance of legitamacy.
243(2) CA 1961 Money laundering
In respect of any property
that is the proceeds of an offence
engages in a money laundering transaction
knowing/believing that all/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
what is the purpose of the criminal proceeds recovery act?
to stop criminals from profitting off signifigant criminal activity by establishing a regime for the the forfeiture of property (representing their unlawfully made income).
how does the does the criminal proceeds recovery act propose to achieve its purpose?
eliminate the chance to profit from undertaking or being associated with signifigant criminal activity.
deter signifigant criminal activity.
reduce ability of criminals/ associates to continue/expand criminal enterprises.
deal with matters associated with foreign restraining orders and foreign forfeiture orders that arise in NZ
what is an asset forfeiture order (AFO)?
an AFO is issued by the high court on application.
A successful application issues by the courts shows on the balance of probability that specific assets which have been aquired have been tainted by signifigant criminal activity.
what is tainted property?
any propery which has wholly/party been:
acquired as a result of signifigant criminal activity.
directly or indirectly derived from signifigant criminal activity.
qualifying instrument forfeiture offence
means an offence punishable by a max term imprisonment of 5 yrs or more.
includes attempts, conspiracy, accessory if the max term imrisonment for those activities were 5 years or more.
Signifigant criminal activity
that consists of or includes 1 or more offences punishable by maximum term of imprisonment of 5 years +
from which properry, proceeds or benifits of a value to $30K or more have directly / indirectly been aquired/derived.
unlawfully benifited from criminal activity
a person who knowingly, directly/indirectly derived benifit from criminal activity (whether or not they were directly involved)
imstrument of crime means
any property (wholly / partly) used to commit or facilitate the commission of a qualifying instrument forfeiture offence
funds allocated towards the commission of such an offence
prosecutor notifying courts of property
under 142B Sentencing act 2006 it is up to the prosecution to inform the courts of any relevant property that is an instrument of crime so the forfeiture of that property may be considered as part of the sentencing process
duty of prosecutor if offender found guilty of an instrument forfeiture offence.
Prosecutor must notify the court in writing:
the details of the property.
the name and identifying details of any person other than the offender who has interest in that property.
restraint of property during criminal proceedings
property which was used as an instrument of crime may be restrained during the court proceedings to prevent disposal of that asset or errossion of its value.
this will requite an application for a restraining order relating to instruments of crime.
Notice is generally required to be given to anyone with interest in that property unless there is a high risk of CADD should notice be given.
what should you consider during the assessment process- resraining orders/asset forfeiture orders
an assessment to determine the following is required when making an application for instument forfeiture…
Cost of action in respect to asset
equity of asset.
third party interest in asset.
value of asset.
who do you need to consult regarding cost of action- asset forfeiture orders
the financial crime group as they are the ones who incur the cost associated with assessment and storage of seized assets.
what information should be included in an affidavit required for application- resraining orders/asset forfeiture orders
Admissions made during interviews.
Nature of offending.
O/C details.
Offender details/charges/criminal convictions.
Property description/value/ show offender owned /had custody/control over property.
summary of search warrants.
who should you seek guideance from when completing a restraining order?
prosecution / asset recovery unit
is the defendant bound to an instrument forfeiture if there is no conviction?
no conviction= no imstument of forfeiture.
who may apply for resraining orders/ asset forfeiture orders/profit orders?
the commissioner of police has delegated these functions solely to members of the asset recovery unit.
how long is a restraining order (instrument forfeiture) valid for?
one year from the date in which the order is made.
suspect interview - money laundering
consider the following topics.
suspects legitimate income
suspects illegitimate income
expenditure
assets
liabilities
acquisition of financial records- banks/finance companies/loan sharks/family trusts.
clarification of documentary evidence located
S71 CRIMES ACT 1961 Accessory after the fact
ELEMENTS
KNOWING ANY PERSON
TO HAVE BEEN PARTY TO
AN OFFENCE
RECEIVES or
CONFORTS or
ASSISTS
THAT PERSON or
TAMPERS WITH or
ACTIVELY SUPPRESSES
ANY EVIDENCE AGAINST HIM
IN ORDER TO ENABLE
HIM TO ESCAPE AFTER ARREST or
AVOID ARREST /CONVICTION
KNOWING
Knowledge of an offence having been committed and the person they are assisting was a party to that offence must exist at the time the assistance is given.
CL: SIMESTER and BROOKS
Knowledge is knowing or correctly beleiving.
You can belieive something wrongly but you cannot know something false.
R V CROOKS
Knowledge means actila 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.
ANY PERSON
A real person accepted by judicial notice or circumstantial evidence.
TO HAVE BEEN PARTY TO AN OFFENCE
A principle or secondary party to the offence.
RECEIVES or
Harbouring an offender/ offering them shelter.
R V MANE
To be considered an accessory the acts done by the person must be after the completion of the offence.
CONFORTS or
Provides food/clothing/shelter.
R V MANE
To be considered an accessory the acts done by the person must be after the completion of the offence.
ASSISTS
Give information, advice, or some material service.
R V MANE
To be considered an accessory the acts done by the person must be after the completion of the offence.
THAT PERSON or
The offender
TAMPERS WITH or
Alter evidence agaisnt the offender.
R V MANE
To be considered an accessory the acts done by the person must be after the completion of the offence.
ACTIVELY SUPPRESSES
conceal or destroy evidence agaisnt the offender
R V MANE
To be considered an accessory the acts done by the person must be after the completion of the offence.
ANY EVIDENCE AGAINST HIM
Evidence is any oral, written or visual materials which a court / tibunal may take into account when reaching a decision.
ESCAPE/ AVOID ARREST
To take into legal custody
AVOID CONVICTION
Formal declaration in court that someone has been found guilty of an offence.
RECEIVING 246 CRIMES ACT 1961
ELEMENTS
RECEIVES
ANY PROPERTY
STOLEN or
OBTAINED BY ANY IMPRISONABLE OFFENCE
KNOWING
AT THE TIME OF RECEIVING THE PROPERTY
THAT IT HAD BEEN STOLEN/ OBTAINED BY I/O
or
BEING RECKLESS AS TO WHETHER
THE PROPERTY
THAT IT HAD BEEN STOLEN/ OBTAINED BY I/O
RECEIVES
To aquire or get something.
CL: R V COX
Possession involves two elements- physical and mental.
Physical element is actual or potential physical custody or control over property.
The second, mental element- a combination of knowedge and intention.
CULLEN V R
There are four elements of possession for receiving.
a) awareness that the item is where it is.
b) awareness that the item was stolen.
c) actial or potential control over item.
d) an intention to exercise control over item.
ANY PROPERTY
Property includes real and personal property, debt, electricty, estate, money,or any action, right, interest.
CL: R V LUCINSKY
The property received must be the property stolen or illegally obtained, not some other item for which the illegally obtained property had been exchanged or which are the proceeds.
STOLEN or
Theft- Property taken with intent to permanently deprive the owner.
OBTAINED BY ANY IMPRISONABLE OFFENCE
An offence punishable by imprisonment.
KNOWING
CL: SIMESTER and BROOKS
Knowledge is knowing or correctly beleiving.
You can belieive something wrongly but you cannot know something false.
R V KENNEDY
The guilty knowedge that the thing has been stolen or dishonestly obtained must exist at the time of receiving.
RECKLESS
Conciously and deliberately taking an unjustified risk.
CL: CAMERON V R
recklessness is established if they recognise that there was a real possilbility that…
Their actions would bring about a prescribed result… and having regard to that risk those actions were unreasonable.
