Association Offences Flashcards
Act, Section & Elements of Conspiring to Commit Offence
Conspiring to Commit an Offence
Section 310 Crimes Act 1961
Sentance: Half the term of the full offence or a maximum of 7 years.
- Conspires
- With any person
- to commit any offence OR;
- to do or omit, in any part of the world, anything of which the doing or omission in New Zealand would be an offence.
Define Conspires
Two of more people forming an agreement to do an unlawful act or to do a lawful act by unlawful means. Where there is only the intent to commit the offence without an agreement, then no offence is committed.
Mulcahy v R
A conspiracy consists not merely in the intent of two or more people, but in the agreement of two or more people to do an unlawful act.
Can someone withdraw from a conspiracy agreement?
No, once an agreement is made they cannot withdraw. One may however reconsider and withdraw before the agreement is made.
R v Sanders - When a conspiracy ends
A conspiracy does not end with the making of the agreement. The agreement continues until it is ended by its completion or abandonment.
What are the elements of an agreement?
- Mens rea (Mental Intent)
- An intention of the parties involved to agree, and
- an intention that the relevant course of conduct should be pursued by those parties to the agreement.
The offenders’ intent must be to commit the full offence.
- Actual Agreement (Actus reus)
- The actual agreement of two or more people to carry out the offence. Physical acts such as words or gestures are considered to be the actus reus, whether express or implied.
Additional info:
A simple verbal agreement will suffice and there is no need for the parties involved to have made a decision on how they will actually commit the offense .
Mere passive presence or knowledge of an intention does not amount to being a party to the conspiracy.
Define intent
A deliberate act or omission with intent to produce a specific result. The act or omission must be more than accidental or involuntary.
R v Collister
The circumstantial evidence from which an offenders’ intent may be inferred by;
-Their words and actions before, during and after the offence
- The surrounding circumstances
- The nature of the act itself.
R v White
Where you can prove that a suspect conspired with two or more people whose identities are unknown, that suspect can still be convicted even if the identity of the other parties is never established.
Defense to Conspiracy
The defense for conspiracy comes from Section 310(3) CA1961 - It is a defense if the accused can prove that doing the act or omission in the plan country is not an offense there.
E.g Planning while in New Zealand to marry a second wife (Bigomy) in Saudi Arabia is not an offence as Bigomy is not an offence in Saudi Arabia.
Why is laying a substantive charge and a related conspiracy charge undesirable?
- Evidence admissible only on the conspiracy charge may have a prejudicial effect in relation to other charges. A judge may disallow evidence as it will be too prejudicial.
- The addition of a conspiracy charge may unnecessarily complicate and prolong a trial.
- A judge may order the matters to be separated into different trials.
Define Offence
Any act or omission that is punishable on conviction under any enactment and a demarcated into four categories described in section 6 of the criminal procedure Act 2011
Define Offence / Crime
Any act or omission that is punishable on conviction under any enactment.
When Interviewing suspects for conspiracy points should be covered?
- The existence of an agreement to commit an offence
- An omission to do something that would amount to an offence
- The intent of those involved in the agreement
- Identity of all parties
- Whether anything was written, said or done to further the common purpose.
There must be independent evidence of the conspiracy for a conspirator’s evidence to be admitted as evidence against his or her co-conspirator(s).
Act, Section and elements of Attempting to commit an Offence
Section 72(1) Crimes Act 1961
- Intent to commit and offence
- Act - They did or omitted to do something to achieve the offence
- Proximity - Their act or omission was sufficiently close to the full offence.
R v Ring
An attempt is made if the offender has the relevant intent and this is demonstrated by their actions.
Define sufficiently proximate
Section 72(3) outlines the accused must have acted sufficiently proximate to the full offence. Effectively the accused must have stated the full offence and gone beyond the point of mare preparation.
R v Harpur
The court may have regard to the conduct viewed cumulatively up to the point when the conduct in question stops. How much remains to be done is always relevant but not determinative.
Higgins v Police
It is possible to commit an attempted offence where it is legally possible but not physically possible. Eg mistakingly growing tomato plants, believing Cannabis is growing.
Police v Jay
A man bought hedge clippings believing they were cannabis - Its physically impossible as the Cannabis does not exist however he had the relevant intent to purchase Cannabis when he paid for the grass clippings.
R v Donnelly
Where stolen property has been returned to the owner, it is not an offence to subsequently receive it, even though the receiver may know that the property had previously been stolen.
Attempts - Function of the Judge and Jury
Judge - Decide whether the defendant had gone beyond mare preparation and was already trying to effect the completion of the full offence.
Jury - Decide whether the facts have been established beyond a reasonable doubt and that the defendant intended to commit the full offence.
You cannot prosecture someone for an attempt to commit an offence where?
- Criminality depends on recklessness or negligence - eg manslaughter
- An offence where the act must be completed for the offence to exist - eg. demands menace
- An attempt to commit an offence is included within the definition - eg assault
When is an attempt complete?
When the defendant commits an act that is sufficiently proximate to the intended offense, even if they then change their mind and voluntarily withdraw.
Once an offender has committed acts that are sufficiently proximate to the full offence, there are three situations that do not amount to a defense to the charge. what are those three situations?
- They were prevented by some outside agent from doing something that was necessary to complete the offence - Eg interruption by Police.
- They failed to complete the full offence due to ineptitude, inefficiency or insufficient means - Eg Insufficient explosives to plow apart a safe.
- They were prevented from committing the crime because an intervening event made it physically impossible - Eg. Removal of the property before the intended theft.
Act, Section, Elements of Parties to Offences
Parties to Offences Section 66 (1) (a - d) CA1961
(1) Everyone is a party to and guilty of an offence who -
(a) Actually commit the offence; or
(b) Does or omits an act for the purpose of aiding any person to commit the offence; or
(c) Abets any person in the commission of the offence; or
(d) Incites, counsels, or procures any person to commit the offence.
What do you need to prove for parties to 66(1)?
- The identity of the defendant
- An offence has been successfully committed
- The elements of the parties to offence (66(1)) have been satisfied.
When must have participation have occurred for parties to?
Participation must have occurred before or during the commission of the offence and before the completion of the offence.
What is R v Pene
A party must intentionally help or encourage - it is insufficient if they were reckless as to whether the principal was assisted or encouraged.
What is 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 by Section 66(1)
What is Larkins v Police
It is not necessary that the principal knows they are being assisted however, there must be proof of actual assistance.
Define Aids
Aids means to assist, either physically or by giving advise and information.
Define Abets
Abets means to instigate or encourage.
What is Ashton v Police
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 he is deemed to be in charge of a dangerous thing.
R v Russell
The court held that the accused was morally bound to take active steps to save his children, by this deliberate inaction, and by giving the encouragement and authority of his presence and approval to his wife act he became an aider and abettor and thus a secondary offender.
Define Incite
To rouse, stir up, stimulate, animate, urge or spur on a person
Define Counsels
advising a person, or planning the commission of an offence for another person.
Define Procures
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.
R v Betts and Ridley
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 used.
Probable Consequence Qualifications
- No requirement that person ‘A’ knows of foresees the precise manner in which a secondary offence may be committed by person ‘B’, ‘A’ only needs to realise that an offence of that type is probable.
- There is no requirement that ‘A’s foresight of the secondary offence includes any appreciation of the consequences of the physical elements of the offence,
How might the involvement of parties be established?
- A reconstruction of the offence committed, thus indicating more than one person was involved.
- The principal offender acknowledges or admitting that others were involved in the offence.
- A suspect or witness admitting to proving aid or assistance when interviewed.
- A witness proving you with evidence of another person’s involvement based on their observations
- Receiving information indicating that others were inveoved in the offence.
How might the involvement of parties be established?
- A reconstruction of the offence committed, thus indicating more than one person was involved.
- The principal offender acknowledges or admitting that others were involved in the offence.
- A suspect or witness admitting to proving aid or assistance when interviewed.
- A witness proving you with evidence of another person’s involvement based on their observations
- Receiving information indicating that others were involved in the offence.
Act Section Elements of Accessory After The Fact
Accessory After The Fact Section 71(1) CA1961
- Knowing any person to have been a party to an offence
- Receives comforts, or assists that person.
Or
- Actively suppresses any evidence against him/her,
- In order to enable him/her to escape after arrest or, to avoid arrest or conviction.
Penalties for Accessory After the Fact
Life Imprisonment - 7 years
10+ year Offence - 5 years
Everything else - half the penalty
What needs to be proved for Accessory After the Fact?
- That the person being received by the accessory is the primary or secondary party to an offence.
- That at the time of receiving, comforting or assisting the person, knew they had committed an offence.
- That the accessory received, comforted or assisted the offender or actively suppressed any evidence against that person.
- That at the time of the receiving, comforting etc the accessory purpose was to enable the offender to escape after arrest or avoid conviction.
R v Crooks
Knowledge means having no real doubt that the person assisted was party to the relevant offence. Mare suspicion of their involvement in the offence is insufficient.
Simester & Brookbanks - Knowing
Knowing means correctly believing. A person may believe something that is incorrect but cannot know something that is false.
R v Briggs
Knowledge may be inferred from wilful blindness or a deliberately not making inquiries that would confirm the suspected truth.
A person is considered willfully blind only in two situations, what are these?
- A person deliberately shuts thier eyes and fails to enquire because they know what the answer will be.
- Where the means of knowledge are easily accessible and the person knows the likely truth but refrains from inquiring.
Define Receieves
Harboring an offender or offering them shelter.
Define comforting
Providing an offender with things such as food and clothing.
Define Assisting
Providing transport, acting as a lookout, providing false information to Police, giving advise, material or services.
R v Mane
To be considered an accessory the fact, the acts done must be after the completion of an offence.
Define Tampers with
Teampers means to alter the evidence against the offender.
Eg. Modifying an offenders telephone records to conceal communications.
Define Actively Suppresses Evidence
concealing and destroying evidence against an offender.
Under what circumstances can you charge someone as being an accessory after the fact when they have received goods dishonestly obtained?
When the received does so with the intent of enabling the offender and aiding them in avoiding justice.
Act, Section, and Elements for Perjury
Perjury Section 108(1) CA1961
- A witness making any
- Assertion as to Any Matter of Fact, Opinion, Belief, or Knowledge
- In Any Judicial Proceeding
- Forming Part of That Witness’ Evidence on Oath
- Known by the Witness to be False, and Intended to Mislead the Tribunal
Punishment for Perjury
- 7 years imprisonment.
- unless committed to procuring the conviction of a person for any offense for which the maximum punishment is 3+ years, in which case the term of imprisonment is a maximum of 14 years.
Define Witness
A witness is a person who gives evidence and is able to be cross-examined in a proceeding.
Define Assertion
Something that is declared or stated positively with no evidence or proof of accuracy.
Define Matter of Fact
A Thing done, an actual occurrence or event that is presented during court proceedings by witness testimony.
Define Opinion
Opinion means a statement that tends to prove or disprove a fact. Opinion evidence can only be given by experts or approved ‘lay witnesses’ as outlined in the evidence act.
Define Belief
Subjective feeling regarding the validity of an idea or set of facts. More than suspicion but less than knowing.
Define Knowledge
Simester & Brookbanks - Knowing means “Knowing or correctly believing”. Someone can belive something that is incorrect, but cannot ‘know’ something that is wrong.
Define Oath
A declaration before a person who has authority to administer an oatht, which invokes some religious belief and says that a thing is true or right. eg. a Christian would swear an oath on a bible.
Define Affirmation
Verbal or written declaration before a person who has authority to administer an oath, saying that a thing is true or right without reference to religious belief.
Define Declaration
A witness under 12 years old may make a declaration, wich is to promise to tell the truth.
When is perjury complete?
At the time the false evidence is given accompanied by an intention to mislead the tribunal.
List six examples of conspiring or attempting to obstruct, prevent, pervert or defeat the course of justice as per Sections 116 &117 CA1961.
- Preventing a witness from testifying
- Wilfully going absent as a witness
- Threatening or bribing witnesses
- Concealing the fact an offence has been committed
- Intentionally giving Police false information to obstruct their inquiries
- Supplying false information to probation officers.
- Assisting a wanted person to leave the country
- Arranging false alibi
- Threatening or bribing jury members
When may a prosecution for perjury begin?
- When recommended by the courts
- When directed by the Commissioner of Police
What intent must you be able to prove in order to establish a charge of perjury?
The offenders intent to mislead the tribunal holding the judicial proceedings.
What are the two main points to cover when interviewing a suspect in regard to Perjury?
- Whether they knew their assertation was false
- Whether they intended to mislead the tribunal governing the proceedings
Act, Section and elements of Receiving
Receiving Section 246(1) CA1961
- Receives
- Any property
- Stolen OR Obtained
- By any other imprisonable offence
- Knowing that the property had been stolen or so obtained, OR
- Being reckless as to whether or not the property had been stolen or so obtained.
Act, Section, and elements of Receiving
Receiving Section 246(1) CA1961
- Receives
- Any property
- Stolen OR Obtained
- By any other imprisonable offence
- Knowing that the property had been stolen or so obtained, OR
- Being reckless as to whether or not the property had been stolen or so obtained.
The act of receiving has three elements what are these?
- The defenant must have received property from another person
- The property must have been stolen or obtained by an imprisonable offence
- The defendant must have knowladge or been reckless as to whether the property was stolen or illegally obtained
When is the act of receiving complete?
When property stolen or illegally obtained by any imprisonable offence comes into possession or control of the offender (Knowingly or recklessly), either exclusively or jointly with the theif. Includes helping to conceal or dispose of the property.
R v Cox - Possession
Possession involves two elements mental and physical.
1. Actual or potential physical control or custody.
2. Knowledge of the property and intention to exercise control over that property.
Cullen v R
There are four elements of possession for receiving:
(a) Awareness that the item is where it is;
(b) awareness that the item has been stolen;
(c) actual or potential control of the item; and
(d) an intention to exercise control over the item.
R v Donnelly
Where stolen property is returned to the owner or legal title is obtained, it is not an offence to subsequently receive the property, even though the receiver knows the property was illegally obtained originally.
Define property
S2 CA1961 - Any real and personal property, and any estate or interest in real and personal property, money, electricity, and anything in action, and any other right or interest.
Define Title
A right or claim of ownership of property.
R v Kennedy
The guilty knowledge that the thing has been stolen or dishonestly obtained must exist at the time of receiving.
Define Recklessness
Conscious and deliberate taking of an unjustified risk.
Cameron v R
Recklessness is established if:
(a) The defendant recognised that there was a real possibility that:
(i) his or her actions would bring about the proscribed result; and / or
(ii) that the proscribed circumstances existed; and
(b) having regard to that risk those actions were unreasonable.
List some circumstantial evidence of guilty knowledge
- Possession of recently stolen property.
- Purchased cheap
- Receipt of property in unusual way, place and time
- Removal of identifying marks or features.
- mode of payment
- Absent packaging / receipt
What is the Doctrine of recent possession
If an offender is located in possession of stolen goods a short time after they were taken they can be presumed guilty. Whether possession is recent depends on the nature of the property and the surrounding circumstances.
R v Lucinsky
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.
Define Judicial Proceeding
Any hearing of any kind proceeded over by a judge or other judicial officer.
Definition of interest in crimes act
Legal or equitable estate or interest in the property
Define Tainted Property
Tainted property means any property that is wholly or in part Acquired or Derived as a result of significant criminal activity, directly or indirectly.
Meaning of unlawful benefit
A person, knowingly, directly or indirectly, derived a benefit from significant criminal activity.
What intent required to the charge of perjury?
Intent to be proved so as to prove a charge of perjury is the offenders intention to mislead the tribunal holding the judicial proceeding
What are the two essential ingredients for fabricating evidence?
- intent to mislead any tribunal holding a judicial proceeding to which section 108 applies
- fabricates evidence by means other than perjury
Definition of significant criminal activity?
Means:
- an offence punishable by imprisonment for a term of 5 years if that offence were to be committed in New Zealand
- Property, proceeds or benefits valued at $30,000+
Exception to hearsay rule (conspiracy)?
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.
What must high court satisfy when making a profit forfeiture?
Must satisfy on balance of probabilities that:
* the respondent has unlawfully benefited from significant criminal activity, and
* the respondent has interests in property
What must occur before criminal proceeds action taken?
A restraining order is first step in the asset seizure process. Application must show reasonable grounds to believe property has been acquired or directly or indirectly derived from significant criminal activity (Offence holding 5+ years imprisonment).
Elements of Money Laundering
- 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.
Four points prove money laundering?
- dealing with property or assisting with such dealing
- source of the property being the proceeds of an offence punishable by 5yrs 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
Define Conceal
means to conceal or disguise the property, and includes;
a. To convert the property from one form to another or
b. To conceal or disguise the nature, source, location, disposition, or ownership of the property or of any interest in the property.
Define Deal with
Deal with in relation to property, means to deal with the property in any manner and by any means, and includes, without limitations:
a) To dispose of the property, whether by sale, purchase, gift or otherwise
b) To transfer possession of the property
c) To bring the property into NZ
d) To remove the property from NZ
What points covered off when interviewing suspect for money laundering
- Suspect’s legitimate income
- Suspect’s illegitimate income
- Expenditure
- Assets
- Liabilities
- Acquisition of financial records from banks, loan sharks, finance companies, family trust documents
- Clarification of documentary evidence located, as above
Define Proceeds
Any property that is obtained directly or indirectly by any person from the commission of an offence
What are the three phases of the money laundering cycle?
- Placement - Cash enters the financial system
- Layering - Money is involved in a number of transactions
- Integration: Money is mixed with lawful funds
What is the purpose of the assessment process when preparing an application of a restraining order relating to an instrument of crime?
- 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
