Association

Question 1

MULCAHY v R

Answer 1

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.

Question 2

Explain the actus reus of conspiracy

Answer 2

The agreement between two or more people to carry out the illegal conduct.

The physical acts, words or gestures used by the conspirators in making their agreement (whether an express or implied agreement).

Question 3

Is a person capable of conspiring with their spouse or civil union partner?

Answer 3

YES

Question 4

Conspiracy entered into overseas

Answer 4

A person who has entered into a conspiracy overseas is amenable to the jurisdiction of NZ courts only if they are later PHYSICALLY PRESENT in NZ and they ACT IN CONTINUANCE OF THE CONSPIRACY

Question 5

When interviewing witnesses of a conspiracy, what should you obtain in their statements?
(4 things)

Answer 5

• 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 6

When interviewing suspects of a conspiracy, what should you obtain in their statements?
(5 things)

Answer 6

• 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
• 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 7

What are the three elements of an attempt offence?

Answer 7

• intent (mens rea) - to commit an offence
• act (actus reus) - that they did, or omitted to do, something to achieve that end
• Proximity - that their act or omission was sufficiently close

Question 8

The test for proximity when dealing with attempts offences: what are the questions (2 questions)?

Answer 8

• Has the offender done anything more than getting himself into a position from which he could embark on an actual attempt?
• Has the offender actually commenced execution; that is to say, has he taken a step in the actual crime itself?

Question 9

R v DONNELLY

Answer 9

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

Question 10

Parties to a secondary offence
Section 66(2)

Answer 10

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

Question 11

What do you need to prove when charging someone with being a party to an offence?
(3 things)

Answer 11

• the identity of the defendant, AND
• an offence has been committed successfully; and
• the elements of the offence (S66(1)) have been satisfied

Question 12

R v RENATA

Answer 12

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 by s66(1).

Question 13

LARKINS v Police

Answer 13

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

Question 14

Special relationships in relation to party offences

Answer 14

Where there is a special relationship and no intervention on the part of the person who would be a party, then this might amount to approval and encouragement of the principal offender’s actions

Question 15

To be charged with ‘incites’, ‘counsels’ or ‘procures’ when must the acts take place?

Answer 15

The acts must take place BEFORE the offence is in fact carried out.

Generally does not warrant the attendance of the inciter, counsellor or procurer at the scene, at the time of the incident

Question 16

Definition of ‘incite’?

Answer 16

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

Question 17

How can you establish the involvement of parties?

5 things

Answer 17

• RECONSTRUCTION OF THE OFFENCE COMMITTED. This would indicate that more than one person was involved, or that the principal offender received advice or assistance
• The principal offender ADMITTING OR ACKNOWLEDGING that others were involved in the offence
• A SUSPECT OR WITNESS ADMITTING to providing aid or assistance when interviewed
• A WITNESS PROVIDING EVIDENCE to another person’s involvement based on their observations
• RECEIVING INFORMATION indicating that others were involved in the offence

Question 18

R v CROOKS

Answer 18

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 19

Actus reus of AATF.
The intentional acts are:
(5 things)

Answer 19

• Receives
• Assists
• Comforts
• Tampers with evidence
• Actively suppresses evidence

Question 20

An accessory’s intent must be to enable the offender to:

3 things

Answer 20

• escape after arrest
• avoid arrest
• avoid conviction

Question 21

What is required for a charge of false oath or false statements/declarations?

Answer 21

Requires corroboration

No one shall be convicted of perjury (or any other related offence) on the evidence of one witness only, unless the evidence of that witness is corroborated in some material particular by evidence implicating the defendant

Question 22

Elements of perjury (6 elements)

Answer 22

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

Question 23

Examples of misleading justice:

9 things

Answer 23

• preventing a witness from testifying
• wilfully going absent as a witness
• threatening or bribing a witness
• threatening or bribing jury members
• concealing the fact an offence has been committed
• intentionally giving police false information to obstruct their enquiries
• supplying false information to probation officers
• assisting a wanted person to leave the country
• arranging a false alibi

Question 24

When may you commence a prosecution for perjury?

Answer 24

Where it is recommended by the courts or you are directed to do so by the commissioner of police.

You may begin enquiries into an allegation of perjury without reference to the court or commissioner of police

Question 25

The act of receiving requires the satisfaction of three elements:

Answer 25

• There must be property which has been stolen or has been obtained by an imprisonable offence
• The defendant must have ‘received’ that property, which requires that the receiving must be from another person
• The defendant must receive that property in the knowledge that it has been stolen or illegally obtained, or being reckless as to that possibility

Question 26

CULLEN v R

Four elements of possession for receiving

Answer 26

There are four elements of possession for receiving:

1. awareness that the item is where it is
2. awareness that the item has been stolen
3. actual or potential control of the item
4. an intention to exercise that control over the item

Question 27

Control over property:

Where property located at a place, over which the receiver has control, then the prosecution must prove…:

Answer 27

That the receiver arranged for the property to be delivered there, or alternatively, that on discovering the property, he or she intentionally exercised control over it.

Intent to possess the property must also be satisfied.

Question 28

R v KENNEDY

Guilty knowledge for receiving

Answer 28

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

Question 29

Circumstantial evidence of guilty knowledege when dealing with receiving:
(list 8)

Answer 29

• Purchase at gross undervalue
• Secrecy in receiving the property
• receipt of good at an unusual place
• receipt of goods at an unusual time
• receipt of goods in an unusual way
• concealment of property to avoid detection
• removal of identifying marks or features
• lack of original packaging
• mode of payment
• type of person goods received from
• absence of receipt when one would normally be issued
• possession of recently stolen property

Question 30

What knowledge is required for money laundering (s243(3)(b)?

Answer 30

knowing or believing that all or part of the property is the proceeds of an offence, or being reckless as to whether or not the property is the proceeds of an offence

Question 31

Definition of ‘proceeds’

Answer 31

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

Question 32

Meaning of ‘unlawfully benefited from significant criminal activity’?

Answer 32

A person has unlawfully benefited from significant criminal activity of the person has knowingly, directly or indirectly, derived a benefit from significant criminal activity (whether or not that person undertook or was involved in the significant criminal activity or not)

Question 33

What do you need to include in an affidavit for an application for forfeiture of instruments to crime?

Answer 33

• Officer in charge details
• Offender(s) details, charges, criminal convictions
• Search warrant - describe the nature of the offending discovered at or involving the property (asset) concerned.
• Admissions made during interview
• Property: describe the property sought to be restrained and its value and show that the offender owns or has custody/control

Question 34

For forfeiture of assets, what must be balanced?

Answer 34

A balancing act is required regarding the harshness of any penalty suffered by the offender through the forfeiture versus the reduction of an otherwise appropriate sentence

Question 35

Who may apply for restraining orders?

Answer 35

Only members of asset recovery units (ARU) may apply for restraining orders (apart from those relating to instruments of crime), asset forfeiture orders and profit orders.