ASSOCIATION

Question 1

What is the definition of a conspiricy?

Answer 1

A conspiracy is an agreement between two or more people to commit an offence. This occurs before the principal offence is committed. It comes after the intent to commit the crime, and before the attempt.

Question 2

What are the elements of conspiring to commit an offence s310(1) Crimes Act 1961?

Answer 2

Everyone who

Conspires

With any person

To commit any offence

To do or omit, in any part of the world

Anything of which the doing or omission in New Zealand would be an offence.

Question 3

What is held in 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 do a lawful act by unlawful means. So long as such a design rests in intention only it is not indictable. When two agree to carry out the it into effect, the very plot is an act in itself.

Question 4

In relation to the offence of conspiracy, what is the concept around withdrawing from the agreement?

Answer 4

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 is made.

Question 5

When is conspiracy complete?

Answer 5

The offence is complete once the agreement has been made with the required intent.

Question 6

What is held in R v Sanders?

Answer 6

A conspiracy does not end with the making of the agreement. The conspiratorial agreement continues in operation and therefore in the existence until it is ended by completion of its performance, or abandonment, or in any other manner by which agreements are discharged.

Question 7

What is the actus reus and mens rea elements for the offence of Conspiracy?

Answer 7

Intent:

• an intention of those involved to agree, and
• an intention that the relevant course of conduct should be pursued by those party to the agreement.

Act

• The act is the actual agreement by the conspirators in making the agreement.
• A simple verbal agreement will suffice.

Question 8

What is held in R v White?

Answer 8

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 identity of the other parties is never established and remains unknown.

Question 9

What is the concept around conspiring with spouse or partner?

Answer 9

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

Question 10

What is held in Poynter v Commerce Commission?

Answer 10

Poynter v Commerce Commission reinforced the position that New Zealand court had no jurisdiction over a conspirator who enters into the conspiracy abroad and who never comes to New Zealand.

Question 11

What is an exception to the hearsay rule in respect of establishing the admissibility of evidence for a charge of Conspiracy?

Answer 11

Anything a conspirator or party to a joint charge says of 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.

Question 12

When interviewing a witness for conspiracy, what topics need to be covered?

Answer 12

Interview and obtain statements from witnesses covering: WHIPA

• With WHOM the agreement was made
• The ID of the people present at the time of the agreement
• What offence was PLANED
• Any ACTS carried out to further the common purpose.

Question 13

When interviewing a suspect for conspiracy, what topics need to be covered?

Answer 13

Interview and obtain statements to establish:

WEE II

• Whether anything was WRITTEN, said, or done to further the common purpose.
• The EXISTENCE of an agreement to commit an offence
• The EXISTENCE of an agreement to omit to do something that would amount to an offence
• The intent of those involved in the agreement
• The identify of all people concerned where possible.

Question 14

Give two reasons why laying both a substantive charge and a related conspiracy charge is often undesirable?

Answer 14

• The addition of a conspiracy charge may unnecessarily complicate and prolong a trial.
• Severance may be ordered. This means that each charging document may be heard at separate trials.
• 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.

Question 15

What are the three elements that need to be proven in respect of an attempt to commit an offence?

Answer 15

1) intent to commit an offence
2) act that the did or omitted to do something to achieve that end
3) That their act or omission was sufficiently proximate to the full offence

Question 16

What is held in R v Ring?

Answer 16

In this case the offender’s intent was to steal property by putting his hand into the pocket of the victim. Unbeknown to the offender the pocket was empty. Desptie this he was able to be convicted of attempted theft, because the intent to steal what ever property might have been discovered inside the pocket was present in his mind and demonstrated by his actions. The remaining elements were also satisfied.

Question 17

What is the definition of Act?

Answer 17

to take action or do something, to bring about a particular result.

Question 18

What is the definition of Omission?

Answer 18

The action of excluding or leaving out someone or something, a failure to fulfil a moral or legal obligation

Question 19

Explain the concept that “acts must be sufficiently proximate to the full offence”?

Answer 19

The accused must have done or omitted to do some act that is sufficiently proximate to the full offence. Effectively, the accused must have started to commit the full offence and gone past the phase of mere preparation - this is an “all but” rule

Question 20

What are some examples of acts that may constitute an attempt to commit an offence as held in the American Model Penal Code?

Answer 20

• lying in wait
• enticing the victim to go to the scene of the contemplated crime
• reconnoitring the scene of the contemplated crime
• Unlawfully entering a building, place, vehicle in which it is contemplated the crime will be committed.

Question 21

What is held in R v Harpur?

Answer 21

The court may have regard to the conduct viewed cumulatively up to the point when the conduct in question stops. The defendant’s conduct may considered in its entirety. Considering how much remains to be done is always relevant though not determinative.

Question 22

Explain the concept of “when an act is physically or factually impossible”?

Answer 22

“An act is physically or factually impossible if the act in question amounts to an offence, but the suspect is unable to commit it due to interruption, ineptitude, or any other circumstance beyond their control.

Question 23

What is held in Higgins v Police?

Answer 23

When 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 24

What is held in Police v Jay?

Answer 24

A man brought hedge clippings believing they were cannabis.

Question 25

What is held in R v Donnelly?

Answer 25

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 received it, even though the receiver may know that the property had previously been stolen or dishonestly obtained.

Question 26

When is an attempt complete, leaving no defence for the accused?

Answer 26

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

• were prevented by some outside agent from doing something that was necessary to complete the offence
• failed to complete the full offence due to ineptitude, ineffciency or insufficient means
• were prevented from committing the offence because of an intervening event made it physically impossible.

Question 27

Under what circumstances are you unable to charge with an attempt?

Answer 27

You are not able to charge someone with an attempt where:

• the criminality depends on recklessness or negligence. eg manslaughter.
• An attempt to commit an offence is included within the definition of that offence eg assault
• The offence is such that the act has to have been completed in order for the offence to exists at all eg demanding with menaces

Question 28

What is held in section 66(2) of the Crimes Act 1961 in respect of being a party to an offence?

Answer 28

Where two or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is party to every offence committed by any one of them in the prosecution of the common purpose, if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose.

Question 29

In regards to being a party to an offence, when must participation have occurred?

Answer 29

To be considered a party to the offence, participation must have occurred before, during (contemporaneous with) the commission of the offence and before the offence is complete.

Question 30

What is held in R v Pene?

Answer 30

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

Question 31

What is the definition of a principal offender?

Answer 31

A person will be a principal offender if he satisfies the actus reus and mens rea requirement of the offence.

Question 32

What is held in R v Renata?

Answer 32

The court held that where the principal offender cannot be identified it is sufficient to prove that each individual accused must have been either the principal or a party in one of the ways contemplated.

Question 33

What is the criminal liability of being a party to an offence as held in s 66(1) of the Crimes Act 1961?

Answer 33

Everyone is a party to and guilty of an offence who,

a) actually commits the offence
b) Does or omits an act for the purpose of aiding any person to commit the offence
c) Abets any person in the commission of the offence
d) Incites, counsels, procures any person to commit the offence.

Question 34

What is the definition of “aids”?

Answer 34

To aids means to assist in the commission of the offence, either physically or by giving advice and information.

Question 35

What is held in Larkins v Police?

Answer 35

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

Question 36

What is the definition of “abets”?

Answer 36

Abets means to instigate or encourage, that is, to urge another person to commit the offence.

Question 37

What is held in Ashton v Police?

Answer 37

An example of a secondary party owing a legal duty to a third person or to the general public is a person teaching another person to drive. That person is, in New Zealand, under a legal duty to take reasonable precautions, because under s156 of the Crimes Act 1961 he is deemed to be in charge of a dangerous thing.

Question 38

What is held in R v Russell?

Answer 38

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 abettor and thus a secondary offender.

Question 39

What is the definition of “incitie”?

Answer 39

To incite means to rouse, stir up, stimulate, animate, urge or spur on a person to commit the offence.

Question 40

What is the definition of “counsel”?

Answer 40

Counsel means to intentionally instigate the offence by advising a person on how best to commit an offence, or planning the commission of an offence fro another person. Counselling may also mean urging someone to commit an offence, in which case it will overlap with incitement.

Question 41

What is the definition of “procures”?

Answer 41

Procurement is setting out to see that something happens and taking the appropriate steps to ensure that it does.

Question 42

What is held in R v Betts and Ridley?

Answer 42

An offence where no violence is contemplated and the principal offender in carrying out the common aim uses violence, a secondary offender taking no physical part in it would not be held liable for the violence use.

Question 43

Explain the concept of an “innocent agent” in respect of being a party to an offence.

Answer 43

Innocent agents are sometimes used by the offenders.

• An innocent agent is someone who is unaware of the significance of their actions
• An innocent agent cannot be convicted as a secondary party.

Question 44

What is the criminal liability of being an accessory after the fact as held in section 71(1) of the Crimes Act 1961?

Answer 44

Knowing any person to have been a party to the offence,

receives, comforts, or assists that person

tampers with or actively suppresses any evidence against him

in order to enable him to escape after arrest or to avoid arrest or conviction.

Question 45

Can you be charged with AATF with your spouse (wife/husband) civil union partner committed the offence?

Answer 45

No.

Question 46

What is held in R v Crooks?

Answer 46

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 47

To be liable for an offence of AATF, when must knowledge exist in regards to when the offence was committed?

Answer 47

At the time of the assistance, an accessory must possess the knowledge that:

• an offence has been committed and
• the person they are assisting was a party to that offence

Question 48

What is held in R v Briggs?

Answer 48

As with a receiving charge, knowledge may also be inferred from willful blindness or a deliberate abstention from making inquiries that would confirm the suspected truth.

Question 49

What are the x5 actus reus for AATF?

Answer 49

receives

comforts

assists

tampers with evidence

actively suppresses evidence

Question 50

What is held in R v Mane?

Answer 50

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

Question 51

What does it mean “to evade justice”

Answer 51

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

Question 52

What does it mean to tamper with or actively suppress evidence?

Answer 52

the deliberate concealing of evidence of providing false information to police in respect of it.

Tampers = to alter the evidence against the offender

Suppress = Actively suppressing evidence encompasses acts of concealing or destroying evidence against the offender.

Question 53

Is it possible to be convicted of attempting to be an accessory?

Answer 53

It is possible to be convicted .

Question 54

What intent must be held by a person to be liable as an accessory?

Answer 54

To enable the offender to:

• escape after arrest
• avoid arrest
  avoid conviction

Question 55

What is the criminal liability of making a false oath as held in s 110 of the Crimes Act 1961?

Answer 55

Every one who

being required or authorised by law to make any statement on oath or affirmation

thereupon makes a statement that would amount to perjury

if made in a judicial proceeding

Question 56

What is the criminal liability of making false statements or declarations as held in section 111 of the Crimes Act 1961?

Answer 56

Everyone who

on any occasion on which he is required or permitted by law to make any statement or declaration before any officer or person authorised by law to take or receive it

or before any notary public to be certified by him as such notary

makes a statement or declaration that would amount to perjury if made on oath in a judicial proceeding.

Question 57

What is the criminal liability of fabricating evidence as held in section 113 of the Crimes Act 1961?

Answer 57

Everyone who

with intent to mislead any tribunal holding any judicial proceeding to which s108 applies

fabricates evidence by any means other than perjury

Question 58

What is the definition of witness

Answer 58

A person that give evidence in a proceeding and is able to be cross examined

Question 59

What is the definition of assertion?

Answer 59

This is something declared or stated positively,often with no support or attempt made at furnishing evidence of the assertions accuracy

Question 60

What is the definition of opinion?

Answer 60

means a statement of opinion that tends to prove or disprove a fact

Question 61

What is the definition of belief?

Answer 61

This is a subjective feeling regarding the validity of an idea or set of facts. It is more the suspicion but less than having knowledge.

Question 62

What is the definition of knowledge?

Answer 62

Simester and Brookbanks held that knowing means knowing or correctly believing, the belief must be a correct one, where the belief is wrong a person cannot know something.

Question 63

What is the concept of “corroboration required” for offences involving misleading the court?

Answer 63

It is not necessary in criminal proceedings for the evidence on which the prosecution relies to be corroborated, except with respect to the offence involving perjury, false oaths and false statements or declarations

Question 64

What are some examples of misleading justice?

Answer 64

• preventing a witness from testifying
• willfully going absent as a witness
• threatening or bribing a witness
• concealing the fact an offence has been committed
• intentionally giving police false information
• supplying false info to probation officers
• assisting an offender leave the country
• arranging a false alibi
• threatening/bribing members of the jury

Question 65

What are the investigative procedures/ general guidelines re misleading justice offences?

Answer 65

• Conspiring to defeat the course of justice encompasses both civil and criminal matters
• There is no defence to a charge of conspiring to defeat the course of justice that the aim of the offender was to secure a just result, or one they believed was right.
• Where you are unable to establish a conspiracy pursuant to s116, the evidence may reveal a willful attempt to obstruct, prevent, pervert, of defeat the course of justice subject to s 117
• You may only commence a prosecution for perjury where it is recommended by the court or you are directed to do so by the commissioner of police
• Complaints of perjury can arise in two ways:
  1) an individual may complain that someone has perjured themselves
  2) A Judge may state or direct in a court recommendation that the police undertake inquiries into the truth of the evidence given by a witness.

Question 66

What is held in R v Cox?

Answer 66

Possession involves two elements. The first is the physical element having actual or potential physical custody or control. The second is the mental element, a combination of knowledge and intention. Knowledge int the sense of an awareness by the accused that the substance is in his possession and an intention to exercise possession.

Question 67

What is held in R v Cullen?

Answer 67

There are four elements of possession for receiving;

• awareness that the item is where it is
• awareness that the item is stolen
• actual or potential control of the item and;
• an intention to continue exercising control over the item.

Question 68

What is the concept of control over property in respect of the offence of receiving?

Answer 68

Where the property is located at a place, over which the receiver has control, then the prosecution must prove that the receiving arranged for the property to be delivered there, or alternatively that on discovering the property, he or she intentionally exercised control over it.

Question 69

What is held in R v Donnelly?

Answer 69

Where stolen property has been returned to the owner of 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 or dishonestly obtained.

Question 70

What status must the property be for a person to be liable of receiving?

Answer 70

The offender must receive property which was stolen or obtained by an imprisonable offence.

Question 71

What is held in R v Lucinsky?

Answer 71

The property received must be the property stolen or illegally obtained and not some other item for which the illegally obtained property had been exchanged or which are the proceeds.

Question 72

What is held in R v Kennedy?

Answer 72

The guilty knowledge that the thing has been stolen or dishonestly obtained must exist at the time of the receiving.

Question 73

What is held in R v Harney?

Answer 73

Recklessness means the conscious and deliberate taking of an unjustified risk. In New Zealand it involves proof that the consequences complained of could well have happened together with an intention to continue the course of conduct regardless of risk.

Question 74

What are 4 examples of circumstantial evidence of guilty knowledge?

Answer 74

possession of recently stolen property

the purchase is grossly undervalued

removal of identifying marks or features

receipt of goods at an unusual place, time and way

Question 75

What is the doctrine of recent possession?

Answer 75

It is the presumption that, where the defendant acquired possession willingly, the proof of possession by the defendant of property recently stolen is, in the absence of a satisfactory explanation, evidence to justify a belief and finding that the possessor is either the thief or the receiver.

Question 76

What is required to be proved by the prosecution in regards to money laundering?

Answer 76

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 or more committed by another person.
3) knowledge or belief that the property was the proceeds of such an offence or reckless as to whether it was the proceeds of such an offence.
4) an intention to conceal the property.

Question 77

What is the definition of proceeds in regards to money laundering?

Answer 77

In relation to an offence, means any property that is derived or realised, directly or indirectly, by any person from the commission of the offence.

Question 78

What are the 3 phases of money laundering?

Answer 78

Placement
Layering
Integration

Question 79

What is the definition of tainted property?

Answer 79

Means any property that has wholly or in part been

• acquired as a result of significant criminal activity
• directly or indirectly derived from significant criminal activity

Question 80

Explain a Profit Forfeiture Order

Answer 80

The High Court must make a profit forfeiture order if it is satisfied on the balance of probabilities that

• the respondent has unlawfully benefited from significant criminal activity with the relevant period of criminal activity, and;
• the respondent has interests in property.

Question 81

What must occur before Criminal Proceeds action can be taken

Answer 81

A restraining order is the first step in the asses seizure process. In the case of tainted property and benefits from crime an application made to the High Court must show reasonable grounds for belief that the property is tainted and that it has been acquired, or directly or indirectly derived, from significant criminal activity.

Question 82

Must points must be covered off when interviewing an offender for Money Laundering?

Answer 82

• suspects legitimate income
• suspects illegitimate income
• expenditure
• assets
• liabilities

Question 83

What is the definition of an attempt as held in section 71(1) CA 1961

Answer 83

Everyone who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.