Association definitions Flashcards
Conspires
Conspires
Conspiracy is an agreement by two or more people to commit an offence.
Omission
Omission
The agreement between the parties concerned may also have as its object an omission (failure to act) as opposed to the commission of an offence and as such this must not be overlooked.
Example – Security guard leaves a door unlocked that he usually secures (the omission) with the aim being that his associates gain entry to commit a burglary (the offence).
Withdrawing from the agreement
Withdrawing from the agreement
A person withdrawing from the agreement is still guilty of conspiracy as are the people who become party to the agreement after it has been made. However, a person can effectively withdraw before the actual agreement is made.
Completion of conspiracy
Completion of conspiracy
The offence is complete on the agreement being made with the required intent.
Actus Reas Agreement requires physical and mental faculties
Actus Reas Agreement requires physical and mental faculties
The mens rea (mental intent) necessary for a conspiracy is:
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
The actus reus (physical element) of conspiracy is the agreement between two or more people to put their common design into effect. The agreement must be made before the commission of the acts.
Mens Rea - conspiracy
Mens Rea - conspiracy
The offender’s mental intent must be to commit the full offence.
Conspiring with a spouse
Conspiring with a spouse
S67 CA 1961 – A person is capable of conspiring with his or her spouse or civil union partner or with his or her spouse or civil union partner and any other person.
Offence explained
Offence explained
Offence and crime are words that are used interchangeably in statute. May be described as any act or omission that is punishable on conviction under any enactment and are demarcated into four categories.
Act and Omission Defined
Act and Omission Defined
Act – To take action or do something, to bring about a particular result.
Omission – The action of excluding or leaving out someone or something, a failure to fulfil a moral legal obligation.
Conspiracy entered into overseas
Conspiracy entered into overseas
Under the common law rules as to jurisdiction over conspiracy offences a person who entered into 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.
Conspiracy to commit an offence overseas (defence)
Conspiracy to commit an offence overseas (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.
Admissibility of evidence - conspiracy
Admissibility of evidence - conspiracy
Anything a conspirator or party to a joint charge says or does to further the common purpose is admissible against the others involved.
Investigative procedure
Investigative procedure
Witnesses – Interview and obtain statements from witnesses covering:
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
Suspects – Interview the people concerned and obtained statements to establish:
The existence of an agreement to commit an offence OR
The existence of an agreement to omit or 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
Charging - conspiracy and substantive offence
Charging - conspiracy and substantive offence
Charges of conspiracy should not be filed in situations where the specific (substantive) offence can be proved.
Laying both a substantive charge and a related conspiracy charge is often undesirable because:
The evidence admissible only on the conspiracy charge may have a prejudicial effect in relation to the other charges
The judge may disallow the evidence as it will be too prejudicial
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.
Attempts
Attempts – Section 72(1) CA 1961
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.
Three elements of an attempt offence
Three elements of an attempt offence
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
Intent must be established - attempt
Intent must be established - attempt
When proving an attempt to commit an offence it must be shown that the accused’s intention was to commit the substantive offence.
Acts must be sufficiently proximate to the full offence
Acts must be sufficiently proximate to the full offence
The accused must have started to commit the full offence and have gone beyond the phase of mere preparation. This is the “all but” rule.
The test for proximity
The test for proximity
Simister and Brookbanks suggest 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 actual attempt OR
Has the offender actually commenced execution; that is to say, has he taken a step in the actual crime itself?
Impossibility
Impossibility
This means a person can be convicted of an offence that was physically impossible to commit, but cannot be convicted of an offence that was legally impossible to commit.
When an act is physically or factually impossible
When 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 circumstances beyond their control.
Act completed sufficiently proximate to intended offence - no defence
Act completed sufficiently proximate to intended offence - no defence
Once the acts are sufficiently proximate, the defendant has no defence that they:
Were prevented by some outside agent
Failed to complete the full offence due to ineptitude, inefficiency or insufficient means
Were prevented from committing the offence because an intervening event made it physically impossible
Attempt to commit an attempt
Attempt to commit an attempt
No such thing as an attempt to commit an attempt.
Function of the judge and jury - attempt
Function of the judge and jury - attempt
Judge - The judge must decide whether the defendant had left the preparation stage and was already trying to effect completion of the full offence.
Jury – The jury must the decide whether the facts presented by the Crown have been proved beyond reasonable doubt and, if so, must decide whether the Defendant’s acts are close enough to the full offence.
Unable to charge with attempt
Unable to charge with attempt
The criminality depends on recklessness or negligence
An attempt to commit an offence is included within the definition of that offence
The offence is such that the act has to have been completed in order for the offence to exist at all
Penalties - attempts
Penalties - attempts Section 311(1) – Crimes Act 1961
If the full offence carries life imprisonment – 10 years
Any other offence – Half of the full offence
What you need to prove parties to an offence
What you need to prove
You must prove:
The identity of the Defendant AND
An offence has been successfully committed AND
The elements of the offence s66(1) have been satisfied
To be considered a party to, when does participation have to occur? (before or during)
To be considered a party to, when does participation have to occur?
To be considered a party to the offence, participation must have occurred before or during the commission of the offence and before the completion of the offence.
Multiple offenders - parties to offences
Multiple offenders - parties to offences
Two methods which multiple offenders may be considered to be the principle.
Method 1 – Each offender satisfies elements of offence committed.
Each of the principal offenders may, separately satisfy the necessary elements of the relevant offence committed. (ie – assault)
Method 2 – Each offender separately satisfies part of the actus reus.
Under section 66(1)(a) each offender may separately satisfy some part of the actus reus of the offence, where their actions, when combined with the actions of the other person, satisfy the complete actus reus. (ie. Brew poison, hand to another, who administers it)
What are main points in R v Renata - parties to offences
What are main points in R v Renata - parties to offences
- Each offender satisfies the ingredients of the offence committed
- Each offender separately satisfies the actus reus
Aids
Aids
To aid means to assist in the commission of the offence, either physically or by giving advice and information. (Not required at the scene)
Examples of assistance - parties to offences
Examples of assistance - parties to offences
- Keeping lookout for someone committing a burglary
- Providing a screwdriver to someone interfering with a motor vehicle
- Telling an associate when a neighbour is away from their home so as to allow the opportunity to commit a burglary
Abets
Abets
Abets means to instigate or encourage, that is, to urge another person to commit the offence.
Incites
Incites
To incite means to rouse, stir up, stimulate, animate, urge or spur on a person to commit the offence.
Counsels
Counsels
Counsels means to intentionally instigate the offence by advising a person(s) on how best to commit an offence.
Procures - parties to offences
Procures - parties to offences
Procurement is setting out to see that something happens and taking the appropriate steps to ensure that it does.
Procures requires that the secondary party deliberately causes the principal party to commit the offence.
Common Intention parties to offences
Common Intention - parties to offences
Can also be charged as parties to any other offence that any one of them commits in order to assist in the commission of the first offence originally agreed to, provided that the other offence is known to be a probable consequence of the prosecution of their common purpose.
Innocent agents - parties to offences
Innocent agents - parties to offences
An innocent agent is someone who is unaware of the significance of their actions.
(Poison in glass, handed to waiter to deliver
– Waiter does not know about poison therefore innocent agent.)
Situations that establish involvement of parties - ROSWI
Situations that establish involvement of parties - ROSWI
A reconstruction of the offence committed. This would indicate that more than one person was involved or that the principal offender had received advice or assistance.
The principal offender acknowledging or admitting that others were involved in the offence.
A suspect or witness admitting to providing aid or assistance when interviewed.
A witness providing you with evidence of another person’s involvement based on their observations.
Receiving information indicating that others were involved in the offence.
Penalties – s311(2) CA 1961
Penalties – s311(2) CA 1961
Same punishment as if he had attempted to commit that offence.
Knowing - accessory after the fact
Knowing - accessory after the fact
The accused must have knowledge that the person that they are being an accessory to was party to an offence at the time of assisting them.
Simester and Brookbanks
Knowing means knowing or correctly believing. The belief must be a correct one, where the belief is wrong a person cannot know something.
Person
Person
Gender neutral. Proven by judicial notice or circumstantially.
Offence
Offence
Any act or omission that is punishable on conviction under any enactment and are demarcated into four categories.
Proof of the principal crime - accessory after the fact
Proof of the principal crime - accessory after the fact
A person charged with being an accessory after the fact is entitled to insist on proof of the principal crime and to challenge the evidence of it even if the principal offender has pleaded guilty.
Receives/Comforts or Assists
Receives/Comforts or Assists
The accessory does a deliberate act for the purpose of assisting the offender to evade justice. The act done must actually help the person in some way.
Tampers with/Actively suppresses evidence
Tampers with/Actively suppresses evidence
Must do a deliberate act in relation to evidence against the offender for the purpose of assisting the person to evade justice. The act must actually help the person.
Specifically assisted - accessory after the fact
Specifically assisted - accessory after the fact
The act must have specifically assisted the offender after they had been arrested.
Evades justice - accessory after the fact
Evades justice - accessory after the fact
All acts must be done by the accessory with the express intention that the person evades justice either by avoiding arrest or conviction.
What needs to be proved - accessory after the fact
What needs to be proved
That the person (A), who is received, comforted or assisted by the accessory (B) is a party to an offence that has been committed.
That, at the time of receiving, comforting, or assisting that person (A) the accessory (B) knows that person (A) was a party to the offence.
That the accessory (B) received, comforted, or assisted that person (A) or tampered with or actively suppressed any evidence against that person (A).
That, at the time of the receiving, comforting or assisting, the accessory’s (B) purpose was to enable that person (A) to escape after arrest or avoid arrest or conviction.
Knowledge must exist at the time of assistance - accessory after the fact
Knowledge must exist at the time of assistance - accessory after the fact
The accessory must possess the knowledge that:
An offence has been committed AND
The person they are assisting was a party to that offence
Actus reus of an accessory after the fact
Actus reus of an accessory after the fact
Accessory must do a deliberate intentional act. The deliberate intentional acts are:
Receives Comforts Assists Tampers with evidence Actively suppresses evidence
Receiving or comforting an offender
Receiving or comforting an offender
Harbouring an offender or offering them shelter can be considered receiving and/or comforting.
Comforting an offender
Comforting an offender
Comforting encompasses situations where an accessory provides an offender with things such as food and clothing.
An accessory’s intent
An accessory’s intent To enable the offender to: Escape after arrest OR Avoid arrest OR Avoid conviction
Acquittal of the offender(A) - accessory after the fact
Acquittal of the offender- accessory after the fact
A person can still be convicted as an accessory after the fact despite the offender having been acquitted of the offence unless it is inconsistent.
Witness
Witness
A witness is a person who gives evidence and is able to be cross-examined in a proceeding.
Assertion
Assertion
This is something declared or stated positively.
Matter of fact
Matter of fact
A fact is a thing done, an actual occurrence or event.
Opinion – s4 Evidence Act 2006
Opinion – s4 Evidence Act 2006
Opinion, in relation to a statement offered in evidence, means a statement of opinion that tends to prove or disprove a fact.
Belief
Belief
A belief is essentially a subjective feeling regarding the validity of an idea or set of facts.
Judicial Proceeding
Judicial Proceeding
Includes giving evidence by audio-visual link from another location (whether overseas or within NZ)
This means that giving of false evidence by such a method from another country would equate to perjury in NZ and falls within the NZ jurisdiction.
Oath - perjury
Oath - perjury
This is a declaration before a person who has authority to administer an oath, which invokes some religious belief and says that a thing is true or right.
When is perjury complete?
When is perjury complete?
The offence of perjury is complete at the time the false evidence is given accompanied by an intention to mislead the tribunal.
Evidence of perjury, false oath or false statement – s112, CA 1961
Evidence of perjury, false oath or false statement – s112, CA 1961
No one shall be convicted of perjury, on the evidence of one witness only, unless the evidence of that witness is corroborated in some material particular.
Fabricating evidence – s113, CA 1961 - perjury
Fabricating evidence – s113, CA 1961 - perjury
With intent to mislead any tribunal holding any judicial proceeding to which section 108 applies, fabricates evidence by any means other than perjury.
Opinion evidence by lay witnesses – s24, Evidence Act 2006
Opinion evidence by lay witnesses – s24, 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.
Under this section, lay witnesses are routinely permitted to give evidence concerning apparent age, identity, speed, physical and emotional state of people, condition of articles and whether a person is under the influence of drink.
In relation to the offence of Perjury, what intent is required?
In relation to the offence of Perjury, what intent is required?
Intent to mislead – The offence of perjury is complete at the time the false evidence is given accompanied by an intention to mislead the tribunal.
Where this intention is absent, no offence is committed.
Giving evidence - three defined ways
Giving evidence - three defined ways
To give evidence means to give evidence in a proceeding, in one of three defined ways:
- In the ordinary way as described in s83 (personally in court or by affidavit) OR
- In an alternative way, as provided for by s105 (AVL, DVD, SCREEN, ETC) OR
- In any other way provided for under this Act or any other enactment
Examples of misleading justice - perjury
Examples of misleading justice - perjury
- Wilfully going absent as a witness
- Preventing a witness from testifying
- Arranging a false alibi
- Threatening or bribing witnesses
- Threatening or bribing jury members
Receiving – s246(3) CA 1961, when the act is complete
Receiving – s246(3) CA 1961, when the act is complete
Receiving 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.
Possession
Possession
Possession may be actual or potential.
Actual Possession
Actual Possession
Actual possession arises where the thing is question is in a person’s physical custody or control.
Potential Possession
Potential Possession
Potential possession arises when the person has the potential to have the thing in question in their control.
Property – s.2 CA 61
Property – s.2 CA 61
Property includes real or personal property and any estate or interest in any real or personal property, money, electricity and any debt and any thing in action and any other right or interest.
Stolen (Theft – s219(1)(a) CA 61)
Stolen (Theft – s219(1)(a) CA 61)
Dishonestly and without claim of right, taking any property with intent to deprive any owner permanently of that property or of any interest in that property.
Obtains – s217 CA 1961
Obtains – s217 CA 1961
Means obtains or retains for himself or herself or for any other person.
An imprisonable offence – s5 Criminal Procedures Act 2011
An imprisonable offence – s5 Criminal Procedures Act 2011
Imprisonable offence, in the case of any individual, means an offence punishable by imprisonment for life or by a term of imprisonment.
Value - s.247 CA 61 - punishment of receiving
Value - s.247 CA 61 - punishment of receiving
The property value is essential to the sentence as per section 247, CA 1961.
Penalties - s.247 CA 61
Penalties - s.247 CA 61
Does not exceed $500 – (3 months)
Exceeds $500 – but does not exceed $1000 (1 years)
Exceeds $1000 (7 years)
The “Act of receiving” – 3 elements
The “Act of receiving” – 3 elements
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 (you cannot receive from yourself)
The Defendant must receive that property in the knowledge that it has been stolen or illegally obtained, or being reckless as to that possibility.
When the act is complete – section 246(3) Crimes Act 1961
Concept of title
Concept of title
Title is defined by the Oxford Dictionary as meaning a right or claim to the ownership of property. Title or ownership of a thing is the legal right to possession of that thing.
Where property is obtained by deceptive means, the offender gains both possession and title however where the property is stolen, no title is gained by the offender.
Voidable Title
Voidable Title
Title obtained by deception is referred to as “voidable title.” This means the title can be avoided by the complainant.
Until the title is avoided, the person committing the deception has title to the property concerned and is able to confer a good title to anyone who subsequently acquires the property from him in good faith.
Avoiding title
Avoiding title
Communicate directly with the deceiver
Take all reasonable and possible steps to bring it to the deceiver’s notice eg sending a letter or email
Advise the Police of the circumstances of the deception
Circumstantial Evidence of guilty knowledge - receiving
Circumstantial Evidence of guilty knowledge - receiving
- Possession of recently stolen property
- Purchase at gross undervalue
- Removal of identifying features or marks
- Mode of payment
- Receipt of goods at an unusual time / place / way
- Lack of original packaging
- type of person goods received from
- concealment of property to avoid discovery
Doctrine of recent possession
Doctrine of recent possession
It is the presumption that, where the Defendant acquired possession willingly, the proof of possession by the defendant of property recently stolen in, in the absence of a satisfactory explanation, 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.
Money Laundering
Money Laundering
Money laundering – s243 Crimes Act 1961
For the purpose of this section and sections 244 and 245 –
Is the process of dealing with the proceeds of criminal activity in such a way as to make the proceeds appear to have been legitimately acquired.
Conceal – in relation to property, means to conceal or disguise the property and includes without limitations:
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:
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
Interest – in relation to property means:
Interest – in relation to property means:
A legal or equitable estate or interest in the property OR
A right, power, or privilege in connection with the property
Offence - money laundering definition
Offence – Means an offence that is punishable under NZ law, including any act, wherever committed, that would be an offence in NZ if committed in NZ.
Section 243(2) Crimes Act 1961 – 7 years
Section 243(2) Crimes Act 1961 – 7 years
In respect of any property that is the proceeds of an offence,
engages in money laundering transaction, 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 proceeds of an offence.
Elements of section 243(2) CA 1961
Elements of section 243(2) CA 1961
- In respect of any property that is the proceeds of an offence
- Engages in a money laundering transaction
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.
Placement
Placement – Cash enters the financial system
– offender makes money from selling cannabis and deposit it into an associate’s account
Layering
Layering – Money is involved in a number of transactions.
– the associate transfers money into an account held by a shell company that the offender is the director of.
Integration
Integration – Money is mixed with lawful funds or integrated back into the economy, with the appearance of legitimacy.
– money is declared as revenue for the company, tax is paid and then offender pays himself director fees or a salary out of the account
Section 3(1) & (2) Criminal Proceeds (Recovery) Act 2009
Section 3(1) Criminal Proceeds (Recovery) Act 2009
The primary purpose of this Act is to establish a regime for the forfeiture of property –
That has been deprived directly or indirectly from significant criminal activity OR
That represents the value of a person’s unlawfully derived income.
(2) The Criminal proceeds and instruments forfeiture regime established under this Act proposes to :
Eliminate the chance for person to profit from undertaking or being associated with significant criminal activity; and
Deter significant criminal activity; and
Reduce the ability of criminals and persons associated with crime to continue or expand criminal enterprise; and
Deal with matters associated with foreign restraining orders and foreign forfeiture orders that arise in NZ
Tainted Property – s5 Criminal Proceeds (Recovery) Act 2009
Tainted Property – s5 Criminal Proceeds (Recovery) Act 2009
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 than 1 activity if at least 1 of those activities is a significant criminal activity.
Significant Criminal Activity – s6 Criminal Proceeds (Recovery) Act 2009
Significant Criminal Activity – s6 Criminal Proceeds (Recovery) Act 2009
In this Act, unless the context otherwise requires, significant criminal activity means an activity engaged in by a person that if proceeded against as criminal offence would amount to offending –
That consists of, or includes 1 or more offences punishable by a maximum term of imprisonment of 5 years or more OR
From which property, proceeds, or benefits of a value of $30,000 or more have, directly or indirectly, been acquired or deprived.
Unlawfully benefited from criminal activity – s7 Criminal Proceeds (recovery) Act 2009
Unlawfully benefited from criminal activity – s7 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.)
Profit forfeiture order – s55 Criminal Proceeds (Recovery) Act 2009
Profit forfeiture order – s55 Criminal Proceeds (Recovery) Act 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
Case study – Unlawfully benefited from criminal activity – Pulman v Commissioner of Police
Case study – Unlawfully benefited from criminal activity – Pulman v Commissioner of Police
The Court held that the purpose of the forfeiture regime was not only to prevent the ability of a person to actually profit from undertaking significant criminal activity but also the “chance” that they may be able to do so and also to deter significant criminal activity.
Assessment process before preparing an application for a restraining order
Assessment process before preparing an application for a restraining order
Before preparing such an application an assessment process is required. The assessment process is conducted to determine:
The value of the asset
Equity in the asset
Any third-party interest in the asset
The cost of action in respect of the asset
What must occur before criminal proceeds can be taken
What must occur before criminal proceeds can be taken
A restraining order is first step in the asset 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 – that it has been acquired, or directly or indirectly, derived from “significant criminal activity.”
How long is a restraining order valid for?
How long is a restraining order valid for?
One year from the date on which the order is made.
Who can apply for a restraining order?
Who can apply for a restraining order?
Only members of Asset Recovery Units may apply for restraining orders.
Points you should cover when interviewing a money laundering suspect
Points you should cover when interviewing a money laundering suspect
Suspects legitimate income
Suspects illegitimate income
Expenditure
Assets
Liabilities
