association

Question 1

what is a conspiracy

Answer 1

an agreement between two or more people to commit an offence.

Question 2

Conspiracy S310 Crimes Act 1961

Answer 2

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.

Question 3

Mulcahy v R

Answer 3

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.

Question 4

Omission

Answer 4

intentional failure to act or exclude something or someone. failure to fulfil a moral/legal obligation.

Question 5

is a person who withdraws from the agreement still guilty of conspiracy?

Answer 5

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.

Question 6

when is a conspiracy complete?

Answer 6

when the agreement has been made with the required intent.
No further involvement is required from any of the parties.

Question 7

R v SANDERS

Answer 7

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.

Question 8

actus reus and mens rea of conspiracy

Answer 8

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.

Question 9

what makes up the actus reus of conspiracy?

Answer 9

physical acts, words or gestures which form their agreement.

Question 10

do they need to know how they will carry out the plan for them to be liable for a conspiracy?

Answer 10

no. a simple word agreement will suffice.

Question 11

are you party to a conspiracy if are present during that agreement?

Answer 11

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.

Question 12

Intent

Answer 12

deliberate act, specific outcome

Question 13

R V COLLISTER

Answer 13

intent inferred by circumstance.

Question 14

how do you prove intent

Answer 14

offenders words, actions, before during or after.
the surrounding circumstances
the nature of the act itself.

Question 15

R v WHITE

Answer 15

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

Question 16

can you conspire with a spouse/partner?

Answer 16

S67 CA 1961- a person is capable of conspiring with their spouse/civil union partner/spouse.

Question 17

are offences and crimes the same thing?

Answer 17

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.

Question 18

act means

Answer 18

to take action/ do something/ bring about a result

Question 19

Jurisdiction and offences-
can you conspire to commit an offence in NZ while not physically in the country?

Answer 19

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.

Question 20

conspiracy entered outside of NZ

Answer 20

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.

Question 21

defense Conspiracy to enter an offence overseas

Answer 21

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.

Question 22

conspiracy and provisions against specific legislation includes

Answer 22

defeating justice
false accusations
murder
piracy
treason

Question 23

what should you cover when interviewing witnesses re conspiracy?

Answer 23

*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.

Question 24

what should you cover when interviewing suspects re conspiracy?

Answer 24

*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.

Question 25

why is undesirable to lay a substantive charge and conspiracy charge?

Answer 25

*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.

Question 26

giving evidence against a co-conspirator

Answer 26

There must be independent evidence of the conspiracy for a conspirators evidence to be admitted as evidence against a co-conspirator.

Question 27

Can you charge someone with conspiracy if they are physically unable to carry out the offence?

Answer 27

Yes you can charge someone with conspiracy even if they are incapable of carrying the substantive offence.

Question 28

Can I lay charges for conspiracy and the substantive offence?

Answer 28

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.

Question 29

S72 Crimes Act 1961 Attempts

Answer 29

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

Question 30

elements of an attempt offence

Answer 30

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)

Question 31

what does mens rea mean?

Answer 31

guilty mind- refers to intent and knowledge of act.

Question 32

R V RING

Answer 32

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.

Question 33

what does sufficiently proximate to full offence mean

Answer 33

.

did they go beyond preparation and begin to commit full offence?

Start/ did act or omission with intention to commit full offence.

Question 34

examples of attempts

Answer 34

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.

Question 35

R V HARPUR

Answer 35

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.

Question 36

simester and brookbanks suggested the following questions in determining the difference between preparation and an attempt

Answer 36

1. has the offender done anything more than getting themselves into postion from which they could embark on an actual attempt?
2. has the offender actually commenced execution of crime?

Question 37

who decides on the law of proximity?

Answer 37

the judge.

Question 38

impossibility- attempts

Answer 38

refers to physically impossible not legally imposible.

Question 39

Higgins v Police

Answer 39

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.

Question 40

Police v Jay

Answer 40

a man bought hedge clippings believing they were cannabis.

Question 41

legally impossible- attempts

Answer 41

when the completed act would not be an offence, even if the suspect had criminal intent.

Question 42

R V Donnelly

Answer 42

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.

Question 43

is an attempt complete if the offender withdraws?

Answer 43

if the offender changes their mind or makes a voluntary withdrawal after completing an act that is sufficiently proximate then it is an offence

Question 44

once the offender is sufficiently proximate they can no longer use the defences?

Answer 44

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.

Question 45

functions of a judge and jury re attempts

Answer 45

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.

Question 46

you cannot charge someone with an attempt under these circumstances

Answer 46

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.

Question 47

filing charges- charged with full offence

Answer 47

charged with full offence- found guilty of an attempt= convicted with an attempt.

Question 48

filing charges- charged with an attempt

Answer 48

defendant charged with an attempt but found guilty of full offence= convicted with an attempt

Question 49

framing the charge- attempts

Answer 49

add the phrase “attempted to” before ingridents.

section written out as [main section] & s72 Crimes Act 1961.

Question 50

what is the max penality for an attempt

Answer 50

when there is no punishment expressly perscribed for that attempted offence- 10 years.

Question 51

what must you prove re an attempt

Answer 51

ID of suspect.
intended to commit full offence.
did/ommited something to achieve their object.

Question 52

who is a party to an offence

Answer 52

any person involved at any or all stages of preparing for, attempting or commiting the offence.

Question 53

S66(1) Crimes Act 1961 Parties to offences

Answer 53

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

Question 54

S70 Crimes Act 1961 offence committed other than offence intended

Answer 54

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

Question 55

what do you need to prove- parties to

Answer 55

the ID of the defendant

an offence successfully committed.

the elements of the offence (S66 have been satisfied)

Question 56

when must have participation occured- parties to?

Answer 56

before or during the offence.

Question 57

what is an accessory after the fact?

Answer 57

a person providing assistance to the primary or secondary party of an offence following the commission of a crime.

Question 58

is an accessory after the fact liable for the original offence?

Answer 58

no they are only liable as an accessory after the fact under S71 and S312 Crimes Act 1961

Question 59

R V PENE

Answer 59

a party must intentionally help or encourage- it is insufficient if they were reckless as to whether the principal was assisted or encouraged.

Question 60

what is a principle party?

Answer 60

those who satisfy the actus reus / mens rea of the intended offence (there can be more than one principle party)

Question 61

what is a secondary party?

Answer 61

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.

Question 62

R V RENATA

Answer 62

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.

Question 63

Aids

Answer 63

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.

Question 64

Larkins V Police

Answer 64

while it is unnecessary that the principle should be aware that he or she is being assisted, there must be proof of actual assistance.

Question 65

examples of assistance

Answer 65

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.

Question 66

can you aid someone by omission?

Answer 66

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.

Question 67

Abets

Answer 67

to instigate or encourage someone to commit an offence.

Does not require the person abetting to be during the actual commission of the offence.

Question 68

passive acquiescence

Answer 68

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

Question 69

Ashton v Police

Answer 69

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

Question 70

R V RUSSELL

Answer 70

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.

Question 71

Incite

Answer 71

to rouse, stir up, stimulate, animate, urge, spur on any person to commit an offence.

takes place before the commission of an offence

Question 72

councils

Answer 72

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.

Question 73

Procures

Answer 73

deliberately causes the principle party to commit an offence

Question 74

in which ways may procurement occur?

Answer 74

fraud, persuasion, words of conduct.

Question 75

common intention and joint charging.

Answer 75

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.

Question 76

R v Betts and Ridley

Answer 76

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.

Question 77

probable consequence

Answer 77

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.

Question 78

what are the two qualifications to be satisfied under the general rule in relation to probable consequence

Answer 78

1. 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.
2. Did not need to foresee the consequences of offence B.

Question 79

joint enterprise- murder (parties to)

Answer 79

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.

Question 80

joint enterprise- manslaughter

Answer 80

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.

Question 81

innocent agents

Answer 81

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.

Question 82

establishing involvement of parties

Answer 82

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.

Question 83

is there a difference in the time limit of charging a principle offender vs secondary party.

Answer 83

the statute of limitations is the same for both parties.

Question 84

can you still charge a secondary party if the prinicple can not be convicted

Answer 84

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.

Question 85

can you charge an accomplice with a less offence than the principle party?

Answer 85

Yes you can for example, an accomplice may be charged with manslaughter when the principle is being charged with murder.

Question 86

can a secondary party avoid liability for an offence?

Answer 86

yes if they can successfully withdraw before the commission of or attempt of an offence.

Question 87

formulating charges under S66

Answer 87

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.

Question 88

if S66 is not added to the charges, when should the prosecutor raise that the defendant was parties to an offence?

Answer 88

before the SOF is read out at guilty plea.
before evidence is heard in a judge alone trial.

Question 89

What does section 66(2) refer to?

Answer 89

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.

Question 90

what is an accessory after the fact?

Answer 90

a person who assists the offender after an offence or tampers/destroys evidence to assist the offender avoid or escape arrest

Question 91

Accessory after the fact S71 Crimes act 1961

Answer 91

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

Question 92

what needs to be proven- accessory after the fact?

Answer 92

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

Question 93

must the offence be commited for a person to then be an accessory?

Answer 93

the offence must be completed by the principle/secondary offender seeking assistance for the person assisting to be charged with being an accessory.

Question 94

Simester and brookbanks - knowledge

Answer 94

knowledge is knowing or correctly believing.
You can beleive something wrongly but you cannot know something false

Question 95

R V CROOKS

Answer 95

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.

Question 96

knowledge- accessory after the fact

Answer 96

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.

Question 97

R V BRIGGS

Answer 97

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.

Question 98

when is a person considered wilfully blind?

Answer 98

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.

Question 99

actus reus of accessory after the fact

Answer 99

intentionally:
Actively suppress evidence.
assist
comfort
tamper with evidence.
receive

with the purpose of assisting evading arrest/conviction

Question 100

R V MANE

Answer 100

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

Question 101

receives- accessory

Answer 101

harbouring/ providing shelter

Question 102

comforting- accessory

Answer 102

provides things such as food/ clothing

Question 103

assisting- accessory

Answer 103

assist in any way.

Question 104

what does it mean to help evade justice- accessory.

Answer 104

acts done by accessory must have helped the other person in some way to evade justice.

Question 105

tampers with evidence- accessory

Answer 105

alter evidence

Question 106

actively suppress evidence- accessory

Answer 106

concealing/ destroying evidence.

Question 107

must you prove that the items destroyed by the accessory were evidence (had they not been destroyed)

Answer 107

only have to prove that it could be evidence.

Question 108

can you charge someone with attempting to be an accessory

Answer 108

yes.

Question 109

intent of an accessory

Answer 109

assist the offender to
escape after arrest
avoid arrest
avoid conviction

Question 110

can you still convict an accessory if the main offender is aquitted of the original offence?

Answer 110

yes, unless conviction is inconsistent with the acquittal of the original offender.

Question 111

would you charge someone with accessory after the fact if they received property?

Answer 111

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.

Question 112

what is the punishment for purjery

Answer 112

7 years.

Question 113

Perjury s108 crimes act 1961

Answer 113

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.

Question 114

what is a witness?

Answer 114

a person who gives evidence and is able to cross examined in a proceeding.

Question 115

assertion

Answer 115

something declared or stated positively, often with no support or or attempt made at furnishing evidence/proof of assertions accuracy

Question 116

matter of fact

Answer 116

a fact is a thing done, actual occurrence or event as presented by witness testimony/evidence

Question 117

opinions

Answer 117

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

Question 118

section 24 evidence act 2006 general admissibility of opinions

Answer 118

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.

Question 119

section 25 evidence act

Answer 119

deals with expert evidence

Question 120

belief

Answer 120

a subjective feeling regarding validity of an idea/fact

Question 121

oath

Answer 121

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

Question 122

affirmation

Answer 122

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)

Question 123

declaration

Answer 123

a witness under 12 years old may make a declaration which is a promise to tell the truth

Question 124

perjury is complete when?

Answer 124

at the time the false evidence is given accompanied by an intention to mislead.

Question 125

do you require corroboration in a criminal proceeding?

Answer 125

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.

Question 126

examples of misleading justice

Answer 126

preventing a witness from testifying
threatening/ bribing witnesses.
concealing the fact an offence has been committed.
giving police false info.

Question 127

is conspiring to defeat course of justice civil or criminal?

Answer 127

both

Question 128

when can you commence a prosecution for perjury?

Answer 128

when directed by the courts or by the commissioner of police.
you may investigate perjury without permission from courts/ commissioner of police.

Question 129

how to perjury complaints arise?

Answer 129

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.

Question 130

what happens if there is no corroborating evidence re perjury?

Answer 130

the judge must stop trial- defendant acquitted of charge.

Question 131

two main points to be covered when interviewing a suspect in relation to perjury?

Answer 131

whether they knew the assertion was false
whether they intended to mislead the tribunal governing proceedings

Question 132

what two main categories do receivers of stolen property fall into?

Answer 132

opportunists taking advantage of a bargain.

professionals who receive stolen goods and organise crimes as a business operation

Question 133

you must satisfy three elements re receiving charge

Answer 133

1. property was stolen/obtained by an imprisonable offence.
2. received the property from another person.
3. have knowledge that the property was stolen/ illegally obtained.

Question 134

when is the act of receiving complete?

Answer 134

when they have (exclusively/ jointly) become in posssession of, have control over the property or helped conceal or dispose of the property

Question 135

R V COX

Answer 135

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.

Question 136

CULLEN V R

Answer 136

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.

Question 137

control over property

Answer 137

must show the intentionally exercised control over it, either personally or through another person.

Question 138

what must you prove when assisting the disposal / concealment of property/- receiving

Answer 138

must prove guilty knowledge and actual assistance.

Question 139

R V LUCINSKY

Answer 139

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.

Question 140

theft

Answer 140

tangible property- theft is committed when the property is moved in some way.

Question 141

title

Answer 141

a right or claim to the legal ownership of property.

Question 142

R V KENNEDY

Answer 142

the guilty konwledge that the thing has been solen or dishoestly obtained must exist at the time of receiving.

Question 143

Cameron V R

Answer 143

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.

Question 144

circumstantial evidence of guilty knoweldge- receiving

Answer 144

purchase at gross under value.
secrecy of receiving goods
possession of recently stolen property.
receipt of property at unusal time/place.

Question 145

can a co-defendant give evidence against another offendeR?

Answer 145

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.

Question 146

doctrine of recent possession

Answer 146

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.

Question 147

what is ‘recent’ dependant on- doctrine of recent possession

Answer 147

the nature of the property
the surrounding circumstances

Question 148

is it receiving when the person who receieves the property ‘ordered’ the property be stolen in the first place?

Answer 148

No that is parties to

Question 149

is it an offence in NZ if the property received was property from outside the country?

Answer 149

only if the property was received in NZ.

Question 150

parties to receiving (thief)

Answer 150

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.

Question 151

is it possible to receive property which has been restored (ownership)

Answer 151

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.

Question 152

money laundering 243 Crimes act 1961
CONCEAL)

Answer 152

conceals or disguises property, inlcuding without limitation:

a) convert into something else.

b)disguise its nature source location disposition ownership.

Question 153

money laundering 243 Crimes act 1961
(DEALS WITH)

Answer 153

dispose of property through sale, gift, purchase.

transfer possession.

bring property into/ out of New Zealand.

Question 154

money laundering 243 Crimes act 1961
(INTEREST)

Answer 154

right power or privilige in connection with the property

Question 155

money laundering 243 Crimes act 1961
(PROCEEDS)

Answer 155

any property derived or realised directly or indirectly by any person from the commission of the offence

Question 156

what is money laundering

Answer 156

dealing with proceeds of criminal activity in such a way as to make the proceeds appear to have been legitately aquired.

Question 157

money laundering cycle.

Answer 157

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.

Question 158

243(2) CA 1961 Money laundering

Answer 158

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

Question 159

what is the purpose of the criminal proceeds recovery act?

Answer 159

to stop criminals from profitting off signifigant criminal activity by establishing a regime for the the forfeiture of property (representing their unlawfully made income).

Question 160

how does the does the criminal proceeds recovery act propose to achieve its purpose?

Answer 160

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

Question 161

what is an asset forfeiture order (AFO)?

Answer 161

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.

Question 162

what is tainted property?

Answer 162

any propery which has wholly/party been:

acquired as a result of signifigant criminal activity.

directly or indirectly derived from signifigant criminal activity.

Question 163

qualifying instrument forfeiture offence

Answer 163

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.

Question 164

Signifigant criminal activity

Answer 164

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.

Question 165

unlawfully benifited from criminal activity

Answer 165

a person who knowingly, directly/indirectly derived benifit from criminal activity (whether or not they were directly involved)

Question 166

imstrument of crime means

Answer 166

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

Question 167

prosecutor notifying courts of property

Answer 167

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

Question 168

duty of prosecutor if offender found guilty of an instrument forfeiture offence.

Answer 168

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.

Question 169

restraint of property during criminal proceedings

Answer 169

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.

Question 170

what should you consider during the assessment process- resraining orders/asset forfeiture orders

Answer 170

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.

Question 171

who do you need to consult regarding cost of action- asset forfeiture orders

Answer 171

the financial crime group as they are the ones who incur the cost associated with assessment and storage of seized assets.

Question 172

what information should be included in an affidavit required for application- resraining orders/asset forfeiture orders

Answer 172

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.

Question 173

who should you seek guideance from when completing a restraining order?

Answer 173

prosecution / asset recovery unit

Question 174

is the defendant bound to an instrument forfeiture if there is no conviction?

Answer 174

no conviction= no imstument of forfeiture.

Question 175

who may apply for resraining orders/ asset forfeiture orders/profit orders?

Answer 175

the commissioner of police has delegated these functions solely to members of the asset recovery unit.

Question 176

how long is a restraining order (instrument forfeiture) valid for?

Answer 176

one year from the date in which the order is made.

Question 177

suspect interview - money laundering

Answer 177

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

Question 178

S71 CRIMES ACT 1961 Accessory after the fact

Answer 178

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.

Question 179

RECEIVING 246 CRIMES ACT 1961

Answer 179

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.