Association CIB 006 'B' Files

Question 1

When is an act physically or factually impossible?

Answer 1

An act is physically or factually impossible:

if it is an offence that the suspect is unable to commit it due to ineptitude, insufficient means, interruption or any other circumstances beyond his control.

Rv Ring; Higgins V Police and Police V Jay are examples of physical impossibility as it relates to attempts.

Question 2

Legal Duty - Parties to offences – MC

Answer 2

A person having a legal duty to act and a right or power of control over the principal offender.

E.G.

An army sergeant who watches as a subordinate assaults another person and does nothing to prevent it would be liable as a secondary party to the assault. This is because the sergeant has a power of control over the subordinate and a lawful duty to prevent such incidents and intervene.

Question 3

Incites - Parties to offences – MC

Answer 3

To incite means to:

• Rouse
• Stir up
• Stimulate
• Animate,
• Urge or Spur on a person to commit the offence.

Question 4

When or how and control over property be exercised?

Receiving – MC

Answer 4

Yes, Control over property may still be exercised by a receiver when the property is in the possession of the receiver’s agent or servant – control must be intentional

Question 5

Who may apply for Restraining Orders – CP (R)A 2009 – MC

Answer 5

Only members of Asset Recovery Units may apply for restraining orders, assets forfeiture orders and profit orders

Question 6

What was held in the court of appeal in R V Harpur regarding Attempts to commit an offence – MC

Answer 6

Several acts together may constitute an attempt.

• ‘his actions need not be considered in isolation;
• sufficient evidence of his intent was available from the events leading up to that point.’

Question 7

What criteria must be statisfied to prove Evidence of perjury, false oath, or false statement – Misleading Justice – SA

Answer 7

Section 112, CA1961 –

• No one shall be convicted of perjury, or of any offence against section 110 or section 111 of this Act, on the evidence of one witness only,
• unless the evidence of that witness is corroborated in some material particular by evidence implicating the accused.

Question 8

Spouse/civil union partner exceptions - Accessory after the fact – MC

Answer 8

Under S71(2),

• you cannot be charged with being an accessory after the fact to your spouse (legally married), or your spouse and another party (this when they work in concert).
• This is the same for those in a civil union, but not a de facto relationship.

Question 9

The test for proximity - Attempts to commit an offence – MC

Answer 9

The following questions should be asked in determining the point at which an act of mere preparation may become an attempt:

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

Question 10

Identify three reasons why you cant charge someone with Attempts to commit an offence – MC

Answer 10

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

1. The criminality depends on recklessness or negligence, eg manslaughter
2. An attempt to commit an offence is included within the definition of that offence, eg assault
3. The offence is such that the act has to have been completed in order for the offence to exist at all. EG, demanding with menaces; it is the demand accompanied by the menace that constitutes the offence

Question 11

Definition of interest – Money Laundering and CPA – MC

Answer 11

A legal or equitable estate or interest in the property; or

A right, power, or privilege in connection with the property

Question 12

An innocent agent

Answer 12

An innocent agent carries no liability and is not capable of conviction as a secondary party

Question 13

R v Crooks

Answer 13

• 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 14

Section 72(3) CA 1961 -Acts must be sufficiently proximate to the full offence

Answer 14

Generally, to prove an attempt the accused must have:

• done or omitted to do some act that is sufficiently proximate to the full offence.
• and have gone beyond the phase of mere preparation. This is the ‘all but’ rule

Question 15

Define: Police V Larkins

Answer 15

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

Question 16

What are main points in R v Renata

Answer 16

• Each offender satisfies the ingredients of the offence committed. -
• Each offender separately satisfies the actus reus

Question 17

When a conspiracy ends – R v Sanders – Conspiracy – SA

Answer 17

R v Sanders

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

Question 18

The ingredients of accessory after the fact are

Answer 18

1. Knowing any person to be party to an offence
2. Recieves, comforts or assists that person or
3. Tampers with or actively suppressors evidence against that person
4. In order to enable him or her to escape after arrest or avoid arrest or conviction

Question 19

What three conditions for an Attempt must be satisfied?

Answer 19

Case law has established the following three conditions that must apply for an attempt conviction to succeed:

(1) Intent (mens rea)
(2) Act (actus reus)
(3) Proximity (sufficiently close)

Additionally there is the requirement that it must be legally possible to commit the offence in the circumstances. A person can be convicted of an offence that was physically impossible to commit.

Question 20

Perjury is complete when - Misleading Justice – MC

Answer 20

The offence of perjury is complete:

• at the time the false evidence is given accompanied
• by an intention to mislead the tribunal.
• There is no defence where the witness later recants and informs the tribunal of the falsity of the earlier evidence given.

Question 21

A person who gives evidence that is different to their statement, is this enough for perjury?

Answer 21

There must be an intent to mislead.

R V Cleland - A previous statement made not on oath contradicted by a subqeuent statement on Oath is not sufficient alone.

Question 22

Fabricating Evidence S113 CA1961

Answer 22

Everyone is liable to imprisonment for a term not exceeding 7 years who…

• with intent to mislead any tribunal holding any judicial proceeding
• to which section 108 applies
• fabricates evidence by any means other than perjury.

Question 23

Receiving – list 4 examples of guilty knowledge

Answer 23

1. Receipt of goods in an unusual place receipt of goods at an unusual time
2. Receipt of goods in an unusual way
3. Absence of a receipt where a receipt would normally be issued
4. Lack of packaging
5. Purchase at gross undervalue

Question 24

The mens Rea, mental intent necessary for conspiracy is

Answer 24

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

Question 25

What is required to be proved by the Prosecution in relation to a charge of money laundering.

Answer 25

When considering a principal charge of money laundering under section 243(2), proof of the following four elements is required

1. Dealing with property or assisting in such dealing
2. The source of the property being the proceeds of an offence punishable by 5 years imprisonment or more committed by another person.
3. Knowledge or belief that the property was the proceeds of such an offence, or reckless as to whether it was the proceeds of such an offence
4. An intention to conceal the property.

Question 26

Interviewing witness in a Conspiracy Investigation

Answer 26

Witnesses:

Interview and obtain statements form witnesses covering:

• Identity of the people present at the agreement
• With whom the agreement was made
• What offence was planned
• Any acts carried out to further the common purpose

Question 27

Interviewing suspects in a Conspiracy Investigation

Answer 27

Interview the people concerned and obtain statements to establish:

• The existence of the agreement to commit the 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 the people concerned where possible
• Whether anything was written, said or done to further the common purpose.

Question 28

Criminal Recovery Act 2009 Tainted Property

Answer 28

means:

• any property that has, wholly or in part been acquired as a result of significant criminal activity or
• directly or indirectly derived from significant criminal activity AND
• (b) Includes any property that has been acquired as a result of, or directly or indirectly derived from,
• more than 1 activity if at least 1 of those activities is a significant criminal liability.

Unlawfully Criminal Recovery Act 2009 In this act, unless the context otherwise requires,

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

Question 29

In relation to the offence of Perjury , what intent is required

Answer 29

The offence of perjury is complete at the time the false evidence is given accompanied by an intention to mislead the tribunal.

There must be an intention to mislead the tribunal, where this intention is absent, no offence is committed.

Question 30

Withdrawing from the agreement –Conspiracy – SA

Answer 30

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 31

Admissibility of evidence – SA

Conspiracy

Answer 31

• The intention, of the parties involved, to actually carry out the offence is an essential element to a conspiracy charge.
• Anything a conspirator or party to a joint charge says or does to further the common purpose is admissible against the others involved, this being an exception to the hearsay rule and as such conspirators should be jointly charged.
• However, this does not include explanations made after the common purpose is carried out. Then, the explanation is evidence only against the person making it.

Question 32

Charging – Conspiracy – SA

Answer 32

Laying both a substantive charge and a related conspiracy charge is often undesirable because:

• Prejudical effect, The evidence admissible only on the conspiracy charge may have a prejudicial effect in relation to other charges
• Disallow Evidence, The judge may disallow the evidence as it will be too prejudicial, ie the jury may assume the accused’s guilty knowledge or intent regarding the other charge and not look at the evidence, basing its assumption on the conspiracy charge.
• Prolong a trial, The addition of a conspiracy charge may unnecessarily complicate and prolong a trial
• Quashed, 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 indictment or information may be heard at separate trials.

Question 33

When does receiving constitute AATF?

Answer 33

• Receiver must receive property with intent to have person avoid arrest etc,
• so a person who thinks Police are coming to do a warrant gives the goods to neighbour to hide or something

Question 34

Secondary Offenders - Parties to offences – MC and SA

Answer 34

Those who assist in the principal offender(s):

1. either before or during the commission of an offence are considered secondary offenders and thus their liability generally lies within the scope of s66(1)(b), (c) or (d)
2. To be party to an offence, the acts of the secondary offender must be earlier in the time or contemporaneous with the acts of the principal offender(s).
3. Whether the acts are contemporaneous is dependent on the circumstances of each case.
4. Where the act was part of the original planning, eg providing a means of escape, then the person who committed this act would be deemed to be a principal party.
5. However, a person cannot be convicted as a party for an offence that is already complete. In such a case they would be liable as an accessory

Question 35

Example of legally impossible act - Attempts to commit an offence – SA

Answer 35

Where the completed act would not be an offence even if they had criminal intent.

R v Donnelly

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

Question 36

Act completed sufficiently proximate to intended offence No defence

• Attempts to commit an offence – SA

Answer 36

Once the acts are sufficiently proximate, the accused has no defense that they:

1. Were prevented by some outside agent from doing something that was necessary to complete the offence; eg interruption from police
2. Failed to complete the fill offence due to ineptitude, inefficiency or insufficient means, eg insufficient explosive to blow apart a safe
3. Were prevented from committing the crime because an intervening event made it physically impossible, eg removal of property before intended theft

Question 37

Multiple Offenders - Parties to offences – SA

Answer 37

R v Renata

Three offenders beat the victim to death in the car park of a tavern. The prosecution was unable to establish which blow was the fatal one or which of the 3 offenders administered it.

‘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 in s66(1)’

Question 38

Actual proof of assistance is required - Parties to offences – SA

Examples

Answer 38

Examples of assistance:

• Keeping lookout for someone committing a burglary
• Providing a screwdriver to someone interfering with a motor vehicle
• Telling an associate when a neighbor is away from their home so as to allow the opportunity to commit a burglary

Question 39

What needs to be proven – Accessory after the fact – SA

Answer 39

The ingredients of the offence of accessory after the fact are:

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

Question 40

Knowledge must exist at the time assistance given - Accessory after the fact –

Explain-SA

Answer 40

At the time of the assistance being given, an accessory must process the knowledge that:

• An offence has been committed, and
• The person they are assisting was a party (principal or secondary) to that offence
• Where this knowledge comes about following the rendering of the assistance they are not liable as an accessory

Simester and Broobanks

‘’Knowing’’ means ‘’knowing, or correctly believing’’… the belief must be a correct one, where the belief is wrong a person cannot know something.

R V Crooks

Question 41

People who conspire overseas to kill a woman in NZ but then never actually come to NZ are they liable?

Answer 41

Poynter V Commerce Commission

NZ Courts have no jurisdiction over a conspirator who enters into the conspircy abroad but never comes into NZ

Question 42

Fabricating evidence - Misleading Justice – SA

Answer 42

Everyone is liable to imprisonment for a term not exceeding 7 years who,

• with intent to mislead any tribunal
• holding any judicial proceeding to which section 108 applies,
• fabricates evidence by any means other than perjury.

Question 43

Ingredients of Purjury – Misleading Justice – SA

Answer 43

The ingredients of the offence of perjury are:

• 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 44

Opinion evidence by Lay witnesses – SA

Answer 44

Section 24, Evidence Act 2006 –

A witness may state an opinion in evidence in a proceeding if:

• that opinion is necessary to enable the witness to communicate, or the fact-finder to understand,
• what the witness saw, heard, or otherwise perceived.

Question 45

The ‘’act of receiving’’ – Receiving – SA

Three Elements

Answer 45

The act of receiving requires the satisfaction of three elements:

• There must be property which has been stolen or has been obtained by a crime
• The accused must have ‘received’ that property , which requires that the receiving must be from another (you cannot receive from yourself)
• The accused must receive that property in the knowledge that it has been stolen or illegally obtained, or being reckless as to that possibility

Question 46

When the act is complete – Receiving – SA

Answer 46

The act of receiving any property stolen or obtained by any other crime is complete as soon as the offender has, either

• exclusively or jointly with the thief or any other person,
• possession of, or control over, the property or
• helps in concealing or disposing of the property.

Question 48

Doctrine of recent possession - Receiving – SA

Answer 48

It is the presumption that,

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

Question 49

Legally impossible – Receiving – SA

Answer 49

R v Donnelly

• Where stolen property has been returned to the owner or legal title to any suc property has been acquired by and person,
• it is not an offence to subsequently recieve it,
• even if the reciever may know that the property had been previously stolen or dishonestly obtained.

Question 50

Money Laundering – Definition of Conceal and Deal – SA

Answer 50

Section 243 CA1961 For the purposes of this section and sections 244 and 245 – Conceal: in relation to property, means to conceal or disguise the property, and includes without limitations:

• To convert the property from one form to another
• To conceal or disguise the nature, source, location, disposition, or ownership of the property or of any interest in the property

Deal with: in relation to property, means to deal with the property in any manner and by any means, and includes, without limitations:

• To dispose of the property, whether by sale, purchase, gift or otherwise
• To transfer possession of the property To bring the property into NZ To remove the property from NZ

Question 51

Tainted Property – Criminal proceeds definitions – SA

Answer 51

Section 5, Criminal Proceeds (recovery) Act 2009

Tainted property Means

• any property that has, wholly or in part, been –
• Acquired as a result of significant criminal activity; or
• Directly or indirectly derived from significant criminal activity,
• and Includes any property that has been acquired as a result of, or directly or indirectly derived from, more that 1 activity if at least 1 of those activities is a significant criminal activity

Question 52

Unlawfully benefited from criminal activity - Criminal proceeds definitions – SA

Answer 52

Section 7, Criminal Proceeds (recovery) Act 2009

In this act, unless the context otherwise requires, a person has unlawfully benefited from significant criminal activity if the person has:

• knowingly,
• directly or indirectly,
• derived a benefit from significant criminal activity

(whether or not that person undertook or was involved in the significant criminal activity)

Question 53

Profit forfeiture order - Criminal proceeds definitions – SA

Answer 53

Section 55, CPA 2009

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 within the relevant period of criminal activity; and

The respondent has interests in property

Question 54

Affidavit required for application – Assests Forfeiture Order CPA – PRACTICAL

Answer 54

Such an application will require a straight forward affidavit from the officer in charge of the file outlining:

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. Note: where the value of the asset is high you need to demonstrate that the offending was at more of a commercial level

Admissions made during interviews(s)

Describe property sought to be restrained and its value

Show that offender owns, has custody or control

Question 55

What is required to be proved – Money laundering and CPA – Practical

Answer 55

When considering the principal charge of money laundering, under s243(2), proof of the following four elements is required:

• Dealing with property or assisting with such dealing
• The source of the property being the proceeds of an offence punishable by 5 years imprisonment or more committed by another person
• Knowledge or belief that the property was the proceeds of such an offence, or recklessness as to whether it was the proceeds of such an offence
• An intention to conceal the property

Question 56

Examples of misleading justice - Misleading Justice – PRACTICAL

APACTWIS

Answer 56

Examples of conspiring or attempting to mislead justice within sections 116 and 117 may include:

• Arranging a false alibi
• Preventing a witness from testifying
• Assisting a wanted person to leave the country
• Concealing the fact a crime has been committed
• Threatening or bribing witnesses/ jury members
• Willfully going absent as a witness
• Intentionally giving police false information to obstruct their inquiries
• Supplying false information to probation officers

Question 57

Suspect Interview – Money Laudering CPA – PRACTICAL

Answer 57

When interviewing a suspect about money laundering or where proceeds recovery action is to be considered, consider the following points:

Suspect’s legitimate income

Suspects illegitimate income

Expenditure Assets Liabilities

Acquisition of financial records, from banks, financial companies, loan sharks, family trust documents

Clarification of documentary evidence located, as per above

Question 58

What must an accessory know at time of assisting?

Elements to prove

Answer 58

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

Question 59

When is title obtained? A) when the innocent receiver is given the title from the thief without knowing B) when the innocent receiver is given title where the property was obtained by deception but has not been voided by the deceived owner

Answer 59

B) when the innocent receiver is given title where the property was obtained by deception but has not been voided by the deceived owner

Question 60

When does someone obtain ownership of property?

1. At the time of posting after an agreement has been made
2. When the item has been delivered to the reciever
3. As soon as the agreement as been made

Answer 60

1. At the time of posting after the agreement

Question 61

Section 116 & 117 of the Crimes Act 1961 speak of Conspiring to defeat the course of justice and currupting juries and witnesses. Does a prosecution need to start already?

Answer 61

The offence of conspiring to defeat justice extends to include conduct intended to affect whether or not proceedings will ever be started.

It also includes situations where a victim is discourgaed to make a complaint or,

where false statements are made so as to enage police in the task of investigating a complaint which would otherwise not be persued.

Question 62

Assisting in the disposal or concealment of property. Is this an act of recieving?

Answer 62

Yes. However must prove actual assistance and guilty knowledge.

The recieer need not have physically dealt with or actually obtained possession of said property. Acting as an intermediary or assisting in the sale of said property for a share of the proceeds is sufficient so long as it can be either shown:

• the defendant aquired (joint or sole) possession or control
• they aided in concealing or disposing of the property

Question 63

In Recieving, where property is located at a place, in respects to control of property, what must be present?

Answer 63

That the reciever:

• Arranged for the property to be deliered there, or
• Upon finding it there intentionally exercised control of the property

Question 64

A person having a physical impediment which disables them to complete the offence allowing someelse to complete the action is guilty of:

1. Attempts
2. Conspiracy
3. The full offence

Answer 64

2. Conspiracy

Question 65

If an undercover agent arranges to meet a paedifle with the intention of introducing a young person and they meet. Is this enough for an attempt?

Answer 65

You bet your boots it is