Association Offences Flashcards
1
Q
Conspiracy
Act and Section
A
Section 310, Crimes Act 1961
2
Q
Conspiracy
Elements
A
- everyone who
- 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
3
Q
Conspiracy begins
Case law
A
Mulchay v R
4
Q
Mulchay v R held
A
A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rests in intention only it is not indictable. When two agree to carry it (the intended offence) into effect, the very plot is an act in itself…
5
Q
Essence of a conspiracy in ‘Grenfield’
A
The essence of a conspiracy is an agreement to pursue a course of conduct which, if carried out, would amount to the commission of an offence or involve the commission of an offence by one or more parties to the agreement
6
Q
Withdrawing from the agreement (conspiracy)
A
A person withdrawing from the agreement is still guilty of conspiracy as are those people who become party to the agreement after it has been made.
However a person can effectively withdraw before the actual agreement is made.
7
Q
Completion of conspiracy
A
The offence is complete on the agreement being made with the required intent. No further progression towards the completion of the offence nor further involvement by the parties is required.
8
Q
When a conspiracy ends
(case law)
A
R v Sanders
9
Q
R v Sanders held
A
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.
10
Q
Mens Rea for conspiracy
A
- an intention of those involved to agree
- an intention that the relevant course of conduct should be pursued by those party to the agreement
11
Q
Actus reus for conspiracy
A
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 which will make up the full offence and the object of the conspiracy.
12
Q
Actus reus examples for conspiracy
A
Physical acts, words, or gestures used by the conspirators in making their agreement (whether express or implied)
13
Q
Intent (define)
A
- A Deliberate Act
- Intent to Produce a Specific Result
14
Q
Deliberate Act (Intent means)
A
Intent means that act or omission must be done deliberately. The act or omission must be more than involuntary or accidental.
15
Q
Intent to produce a result:
A
The second type of intent is an intent to produce a specific result. Specific result “means aim, object, purpose”
16
Q
Intent note:-
(Conspiracy)
A
Do not confuse this requirement to have a firm intent or purpose with what can be a very fleeting agreement between parties involved in that agreement.
17
Q
Intent case law
A
R v Collister
18
Q
R v Collister held
A
Circumstantial evidence from which an offender’s intent may be inferred can include:
- the offender’s actions and words before, during and after the event
- the surrounding circumstamces
- the nature of the act itself
19
Q
Conspiracy, 2 or more
(case law)
A
R v White
20
Q
R v White held
A
Where you can prove that a suspect conspired with other parties (one or more people) whose identies are unknown, that suspect can still be convicted even if the identity of the other parties is never established and remains unknown
21
Q
Conspiring with a spouse or partner
A
Section 67, Crimes Act 1961
A person is capable of conspiring with his or her spouse or civil union partner, or with them and any other person.
22
Q
Offence (define)
A
Offence = crime
An act or omission that is punishable on conviction under any enactment
23
Q
Act (define)
A
To take action or do something, to bring about a particular result
24
Q
Omission (define)
A
The action of excluding or leaving out someone or something, a failure to fulfill a moral or legal obligation
25
Conspiracy jurisdiction
*Section 7, Crimes Act 1961* & *R v Sanders*
It was deemed sufficient if one act or omission forming part of the offence or "any event necessary to the completion of any offence" occurs in New Zealand
26
Conspiracy jurisdiction limits
*Poynter v Commerce Commission*
New Zealand courts have no jurisdiction over a conspirator who enters into a conspiracy abroad and who never comes to New Zealand
27
Conspiracy overseas defense
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
28
Conspiracy between parties in NZ and overseas
*R v Darwish*
... the conspiracy was formed in both countries simultaneously, and given NZ is one of those countries in which the conspiracy falls, it would lie within the jurisdiction of the New Zealand courts.
29
Admissiblity 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, this being an exception to the hearsay rule, and as such conspirators should be jointly charged.
(This doesn't apply to explanations made after a common purpose is carried out, that applies to that offence only)
30
Specific conspiracy offences
Treason, piracy, making false accusations, defeating justice, murder, conspiracy to deal with controlled drugs, all have their own charge so use that.
Everything else use s310.
31
Investigative procedures
**witnesses** (conspiracy)
Interview and obtain statements from witnesses covering
- identity of people present at time
- with whom agreement made
- what offence was planned
- any acts carried out to further the common purpose
32
Investigative procedures
**Suspects** (conspiracy)
*statements to establish*
- existence of agreement to commit offence
- existence of agreement to omit to do sth that would be an offence
- the intent of those involved
- the identity of those involved where possible
- if anything was written, said or done to further the common purpose
33
Problems with charging both offence and conspiracy
- evidence admissible only for conspiracy may have a prejudicial effect on other charges
- the judge may disallow the evidence as it will be too prejudicial for a jury
- the conspiracy charge may unnecessarily complicate and prolong the trial
- if not founded on evidence or is abuse of process it may be quashed
- severence may be ordered, meaning separate trials for each
34
**Attempts**
Act and section.
Section 72, Crimes Act 1961
35
**Attempts**
definition (1)
(Elements)
- Everyone who,
- Having an intent to commit an offence,
- does or omits an act for the purpose of accomplishing his object
- is guilty of an attempt to commit the offence
- whether in the circumstances it was possible to commit the offence or not
36
**Attempts**
definition (2)
The question **whether an act** done or omitted with intent to commit an offence **is or is not only preparation** for the commission of that offence, and too remote to constitute an attempt to commit it, **is a question of law**
37
**Attempts**
Definition (3)
**An act** done or omitted **with intent** to commit an offence may constitute an attempt **if it is done immediately or proximately connected** with the intended offence, **whether or not** there was any act unequivocally **showing the intent** to commit that offence.
38
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
39
**Attempts** Intent case law
R v Ring
40
**R v Ring** held
In this case, the offender's intent was to steal property by putting his hand into the pocket of the victim. Unbeknown to the offender the pocket was empty. Despite this he was able to be convicted of attempted theft, because the intent was to steal whatever property might have been discovered inside the pocket was present in his mind and demonstrated by his actions. The remaining elements were also satisfied.
41
**Attempts**
A question of fact
Whether that **intent** exists or not **is a question of fact**; a question that the jury decides.
42
The "all but" rule
Act(s) must be sufficiently proximate to the full offence.
43
Examples of act that may constitute an attempt.
*American Model Penal Code*
- **lying in wait**, searching for or following the contemplated victim.
- **enticing the victim** to go to the scene of the contemplated crime.
- **reconnoitring the scene** of the contemplated crime.
- **unlawfully entering** a structure, vehicle, or enclosure in which it is contemplated that the crime will be committed.
- **possessing**, collecting, or fabricating materials to be employed in the commission of the crime.
- **soliciting an innocent agent** to engage in conduct constituting an element of the crime.
44
Several acts together may constitute an attempt (case law)
**R v Harpur**
45
**R v Harpur** held
[The Court may] have regard to the conduct viewed cumulatively up to the point when the conduct in question stops... the defendant's conduct [may] be considered in its entirety. Considering how much remains to be done... is always relevant, though not determinative.
46
Proximity
Ask yourself...
Ask yourself: Do the facts show mere preparation, or are the defendant's acts or omissions immediately or sufficiently proximate to the intended offence?
47
Test for proximity
- 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?
48
Proximity is a question of _____?
Law, it is a question that is decided by the judge based on the assumption that the facts of the case are proved.
49
Elements that help determine proximity.
- fact
- degree
- common sense
- seriousness of the offence
50
Impossibility
Physically/factually impossible = guilty
Legally impossible = not guilty
51
**Physically impossible**
(3 case laws)
- R v Ring
- Higgins v Police
- Police v Jay
52
**Higgins v Police** held
Where plants being cultivated as cannabis are not in fact cannabis it is physically, not legally, impossible to cultivate such prohibited plants. Accordingly, it is possible to commit the offence of attempting to cultivate cannabis.
53
**Conspiracy** (penalties)
For 7+ year offences = 7 years
For <7 year offences = same as offence.
54
**Police v Jay**
A man bought hedge clippings believing they were cannabis
55
**Legally impossible** (case law)
R v Donnelly
56
**R v Donnelly** held
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
57
Once sufficiently proximate, no defence that they:
- were prevented by some outside **agent** from doing something that was necessary to complete the offence
- failed to complete the full offence due to **ineptitude**, inefficiency, or insufficient means.
- were prevented from committing the offence because an intervening **event** made it physically impossible.
58
Function of Judge and Jury in attempt cases
Judge:- Decides if the defendant has left the preparation stage and is already trying to effect completion of the full offence.
Jury:- Decides if fact have been proven, if acts are close enough to full offence, and if mens rea is proven.
59
When can you not charge with (attempts) offence?
- The criminality depends on recklessness or negligence (eg manslaughter)
- An attempt is included in the definition of that offence (eg assault)
- The act has to be completed for the offence to exist at all. (eg demanding with menaces. Demand accompanied by menaces, you either do or do not, there is no try)
60
Filing of charges (attempts) conviction outcomes
- If charged with full offence but found guilty of attempt. Convicted of attempt.
- If charged with attempt but full offence proved. Only convicted of attempt.
61
Charge wording for attempts
Add "attempted to" before main charge wording.
Add s72 Crimes Act 1961 after main charge section.
62
**Attempts** penalties
*s311, Crimes Act 1961*
If specific attempt offence = that.
Life imprisonable = 10 years
All other = 1/2 of full offence
63
**Parties**
(Act & Section)
Section 66, Crimes Act 1961
64
Section 66(1), Crimes Act 1961
(1) Everyone is a party to and guilty of an offence who
(a) Actually commits the offence,
(b) Does or omits an act for the purpose of aiding any person to commit the offence
(c) Abets any person in the commission of the offence
(d) Incites, counsels, or procures any person to commit the offence
65
Section 66(2)
Where 2 or more persons form 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 if 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
66
**Offence committed other than the intended offence**
(Act & Section)
Section 70, Crimes Act 1961
67
Section 70(1), Crimes Act 1961
Every one who incites, counsels, or procures another to be a party to an offence of which that other is afterwards guilty is a party to that offence, although it may be committed in a way different from that which was incited, counseled, or suggested.
68
Section 70(2), Crimes Act 1961
Everyone who incites, counsels, or procures another to be a party to an offence is a party to every offence which that other person commits in consequence of such inciting, counselling, or procuring, and which the first-mentioned person knew to be likely to be committed in consequence thereof
69
**parties**
(what needs to be proved)
- The identity of the defendant, and
- an offence has been successfully committed, and
- the elements of s66(1) have been satisfied
Where there is more than 1 offence, must prove for each offence.
70
When participation must have occurred. (parties)
Participation muct have occurred before or during (contemporaneous with) the commission of the offence, and before completion.
Otherwise accessory after the fact
71
**Intention to help or encourage** (parties)
Case law
R v Pene
72
**R v Pene** held
A party must intentionally help or encourage - it is insufficient of they were reckless as to whether the principal was assisted or encouraged.
73
Principal party
Under s66(1)(a) where they personally satisfy the mens rea and actus reas of the offence.
*can be more than one principal offender*
74
Secondary party
(define)
Under s66(1)(b),(c),or (d), their assistance, abetment, incitement, counselling, or procurement is sufficient to make them liable.
75
Multiple offenders: Method 1
Each offender satisfies the elements of the offence committed.
(if so, no need to refer to s66 even though s66(1) applies)
76
Multiple Offenders: Method 2
Each offender separately satisfies part of the actus reus.
(pieces of the actus reus puzzle but all must have the mens rea)
True joint principals under s66(1)(a)
77
**Joint Principals** (parties)
Case law
**R v Renata**
78
**R v Renata** held
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).
79
Aids (define)
To aid means to assist in the commission of the offence, either physically or by giving advice and information.
(presence is not required)
80
**Actual proof of assistance required**
(Case law)
Larkins v Police
81
Larkins v Police held
While it is unnecessary that the principal should be aware that he or she is being assisted, there must be proof of actual assistance.
82
Examples of assistance
(parties to)
- Keeping lookout for a burglar
- Providing a screwdriver to someone for unlawful interference
- Telling an associate when a neighbour's house is empty for a burglary.
83
Aiding by ommission
If A has a legal duty to act and a right or power of control over B, and fails to observe or discharge the duty by exercising that control over B.
84
Abet (define)
Abet means to instigate or encourage, that is, to urge another person to commit the offence. (Physical presence not required)
85
**Legal Duty** (Case law)
Ashton v Police
86
Ashton v Police held
An example of a secondary party owing a legal duty to a third person or to the general public is a person teaching another person to drive. That person is, in New Zealand, under a legal duty to take reasonable precautions, because under s156 of the Crimes Act 1961 he is deemed to be in charge of a dangerous thing.
87
**Special relationship** (case law)
R v Russell
88
R v Russell held
The court held that the accused **was morally bound to take active steps** to save his children, but by deliberate abstention from doing so, and by giving the encouragement and authority of his presence and approval to his wife's act he became an aider and abettor and thus a secondary offender.
89
Timing for Incites, counsels, or procures
before the offence is in fact carried out, generally does not warrant the presence of the secondary.
90
Incites (define)
To incite means to rouse, stir up, stimulate, animate, urge or spur on a person to commit the offence.
91
Counsels (define)
Counsels means to intentionally instigate the offence by advising a person on how to best to commit an offence, or planning the commission of an offence for another person.
Counseling may also mean "urging someone to commit an offence" in which case would overlap with incitement.
92
Procures (define)
Procurement is setting out to see that something happens and taking the appropriate steps to ensure that it does.
Procurement may be carried out by fraud, persuasion, words or conduct, such as an offer of payment.
93
**Common intention** (Case law)
R v Betts and Ridley
94
R v Betts and Ridley held
An offence where no violence is contemplated and the principal offender in carrying out the common aim uses uses violence, a secondary offender taking no physical part in it would not be held liable for the violence used.
(if violence is planned and death occurs then both are liable)
95
Whether a defendant knew it would likely result in committing other offences is a question of ___?
Fact, on which the jury must decide
96
**Probable consequence**
Qualification 1
There is no requirement that person A knows or forsees the **precise manner** in which offence B is to be committed by person B. Person A need **only realize that an offence of that type is probable.**
97
**Probable consequence**
Qualification 2
There is no requirement that person A's foresight of offence B include any appreciation of the consequences of the physical elements of the offence committed (offence B), but for which no mens rea element is required.
98
**Probable consequence**
(3 important points)
- 'known to be a probable consequence' is subjective on the offender.
- It is sufficient if demonstrated that they knew there was a substantial or real risk or that the offence could well happen.
- If they think the risk of offence B is negligible or only a remote possibility the mens rea is not there.
99
Joint enterprise
Murder or manslaughter?
Murder if
- intentionally helped or encouraged it, or
Foresaw murder by a confederate, as a real risk in the situation that arose.
Manslaughter if:
- knew that at some stage there was a real risk of killing short of murder, or
- foresaw a real risk of murder, but the killing occurred in circumstances different from those contemplated, or
- can be expected to have known there was an ever-present real risk of killing.
100
Establishing involvement of parties
- 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 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 info indicating that others were involved in the offence.
101
Formulating charges under s66(1)
Same charge wording as main offence but add "was a party to"
Must add at the end "in that you did:
- aid
- abet
- incite
- council, and/or
- procure
... the commission of the said offence"
102
Charges under s66(2)
Formulate as for a principal offender
103
**Accessory after the fact**
(elements)
*Section 71(1)*
- a person
- knowing any person to have been party to the offence
- receives, comforts, or assists that person **or**
- tampers with or actively surpresses any evidence against him
- in order to enable him to escape after arrest or to avoid arrest or conviction
104
AATF Penalties
Life imprisonable offence = 7 years
10+ years offence = 5 years
All others = 1/2 offence penalty
105
AATF need to prove
- Person A who is received/comforted/assisted by Person B is a party to an offence that has been committed.
- At the time of receiving/comforting/assisting Person A, Person B knew they were party to an offence.
- Person B received/comforted/assisted Person A, or tampered with/actively suppressed any evidence against Person A.
- At the time, Person B's purpose was to enable Person A to escape after arrest or avoid arrest or conviction
106
AATF **Knowledge**
(case law)
**R v Crooks**
107
**R v Crooks** held
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.
108
Knowledge that must exist at the time assistance given. (AATF)
- an offence has been committed
- the person they are assisting was a party to that offence
If the knowledge comes after the assistance they are not liable
109
**Wilful Blindness**
(Case law)
**R v Briggs**
110
**R v Briggs** held
As with a receiving charge under s146(1), **knowledge may also be inferred from wilful blindness** or a deliberate abstention from making inquiries that would confirm the suspected truth.
111
Situations considered wilful blindness
- where the person deliberately shuts their eyes and fails to inquire; this is because they knew what the answer would be, or
- in situations where the means of knowledge are easily at hand and the person realizes the likely truth of the matter but refrains from inquiring in order not to know.
112
Actus reus of AATF
- receives
- comforts
- assists
- tampers with evidence
- actively suppresses evidence
113
AATF offence complete case law.
R v Mane
114
**R v Mane** held
To be considered an accessory the acts done by the person must be after the completion of the offence.
115
AATF **Receive**
Harbouring an offender or offering them shelter can be considered receiving and/or comforting, eg hiding a prison escapee in a basement.
116
AATF **Comforting**
Comforting encompasses situations where an accessory provides an offender with things such as food or clothing.
117
AATF **Assisting**
Lots of situations. Eg
- Providing transport
- acting as a lookout
- identifying someone to buy stolen property
- deliberately giving authorities false info as to whereabouts
- giving advice/material/services to offender
118
Prosecution
Section 137, Criminal Procedures Act 2011
(1)
(1) This section applies to every person charged--
(a) as a party to an offence (not the principal)
(b) with being an accessory after the fact
(c) with receiving stolen property
119
Prosecution
Section 137, Criminal Procedures Act 2011
(2)
If (1) applies, can be convicted even if principal or other parties are not charged/convicted
120
Prosecution
Section 137, Criminal Procedures Act 2011
(3)
Everyone (1) applied may be convicted
- alone or
- jointly with principal/parties
121
Prosecution
Section 137, Criminal Procedures Act 2011
(4)
Reveivers in a chain or who all receive part of it **can** all be convicted.
122
**Perjury**
Act & Section
Section 108, Crimes Act 1961
123
**Perjury**
Elements
- An assertion as to any matter of fact, opinion, belief, or knowledge
- Made by a witness
- In any judicial proceeding
- Forming part of that witness' evidence on oath
- whether given in open court, by affidavit, or otherwise.
- Known by the witness to be False and
- Intended to mislead the tribunal holding the proceedings
124
on Oath (define)
Oath, affirmation, and a promise to tell the truth, the whole truth, and nothing but the truth by children
125
Witness
(define)
**Everyone who actually gives evidence,** whether competent or not, and whether evidence is admissible or not.
126
Judicial Proceeding
(define)
(a) Any Court of Justice
(b) The House of Representatives or any Committee of that House
(c) Any arbitrator or umpire, or any person or body of persons authorized by law to make an enquiry and take that evidence therein upon oath
(d) Any legal tribunal by which any legal right or ability can be established
(e) Any person acting as a Court or tribunal having power to hold a judicial proceeding
(f) a disciplinary officer, the Summary Appeal Court of New Zealand, or the Court Martial of New Zealand acting under the Armed Forces Discipline Act 1971
127
Formal Statements
(perjury)
A formal statement filed under section 85 or Crim Proc Act 2011 to be treated as evidence on oath given in a judicial proceeding.
128
Perjury
(penalties)
Usually = 7 years
If to convict for 3+ year offence = 14 years.
129
False Oaths
(Act & Section)
Section 110, Crimes Act 1961
130
False Oaths
(offence)
- Everyone,
- being required or authorised by law to make any statement on oath or affirmation,
- makes a statement that would amount to perjury
131
False Oaths
(penalty)
5 years imprisonment
132
False statements or declarations
(Act & Section)
Section 111, Crimes Act 1961
133
False statements or declarations
(offence)
- Everyone,
- on any occasion on which he is required or permitted by law to make any statement or declaration
- before any officer or person authorised by law to take or receive it,
- makes a statement that would amount to perjury.
134
False statements or declarations
(penalty)
3 years imprisonment
135
Evidence requirement of perjury, false oaths, or false statements
No one shall be convicted against section 110 or 111 on the evidence of one witness alone, unless corroborated in some material particular by evidence.
136
Fabricating Evidence
(Act & Section)
Section 113, Crimes Act 1961
137
Fabricating Evidence
(offence)
- Everyone who,
- with intent to mislead any tribunal,
- fabricates evidence by any means other than perjury.
138
Fabricating Evidence
(penalty)
7 years imprisonment
139
Assertion
(define)
Something declared or stated positively, often with no support or proof.
140
Matter of Fact
(define)
**A fact is a thing done,** an actual occurrence or event, and is presented during court proceedings in the form of witness testimony or evidence.
141
Opinion
(define)
**Opinion** in relation to a statement offered in evidence, means a statement of opinion that tends to prove or disprove a fact.
142
Oath, Affirmation, Declaration
(define)
O - invokes some religious belief and says a thing is true or right.
A - says a thing is true or right without reference to a religious belief
D - Under 12, a promise to tell the truth.
143
Conspiring to defeat justice
(Section, penalty, define)
*Section 116*
Everyone is liable to imprisonment for a term not exceeding 7 years who conspires to obstruct, prevent, pervert, or defeat the course of justice.
144
Examples of misleading justice
- preventing a witness from testifying
- wilfully going absent as a witness
- threatening or bribing a witness
- 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 a false alibi
- threatening or bribing jury members
145
Corrupting juries and witnesses
*Section 117, CA'61*
7 years imprisonment for
**(a)** disuades or attempts to disuade a P by threats, bribes, or other corrupt means, from giving evidence.
**(b)** influences or attempts to influence by T, b, ocm, a member of a jury
**(c)** accepts any b, or other corrupt consideration to abstain from giving evidence
**(d)** accepts any b, oocc on account of his conduct as a jury member
**(e)** wilfully attempts in any other way to obstruct, prevent, pervert or defeat the course of justice in NZ.
146
**Conspiring/Attempting to defeat justice** important points
- encpasses both civil and criminal proceedings.
- is no defense that the aim was to secure a just/right result
- where unable to establish conspiracy under 116, may be evidence of attempt under 117
- May only prosecute if recommended by the courts or directed by the Commissioner. But can investigate whenever you like.
- Perjury complaints can come from, an individual against someone else, or a Judge recommendation that Police undertake enquiries into truth of evidence.
147
**Receiving**
(Act & Section)
Section 246, Crimes Act 1961
148
**Receiving**
(elements)
- Everyone who
- receives any property stolen **OR** obtained by any imprisonable offence
- knowing the property to have been stolen **or** so obtained
**OR**
- being reckless as to whether or not the property had been stolen or so obtained.
-
149
The Act of Receiving
(three elements)
- there must be **property which has been stolen** or obtained by an Imprisonable offence
- must have **"received" it from another** (cannot receive from yourself)
- must receive with the **knowledge it has been illegally obtained** or reckless to that possibility
150
When the act (of receiving) is complete
(Act & Section)
Section 246(3), Crimes Act 1961
151
When the act (of receiving) is complete
(define)
The act of receiving any property stolen or obtained by any imprisonable offence is complete **as soon as** the offender has, either exclusively or jointly with the thief or any other person, **possession** of, **control** over, the property or **helps** in **concealing** or **disposing** of the property.
152
**Possession**
(case law)
R v Cox
153
**Possession**
R v Cox held...
Possession involves two elements.
The first, the physical element, is **actual or potential physical custody or control.**
The second, the mental element, is a combination of knowledge and intention: **knowledge** in the sense of an awareness by the accused that the substance is in their possession and an **intention** to exercise possession.
154
**Possession for Receiving**
(Case Law)
Cullen v R
155
**Possession for Receiving**
Cullen v R held...
There are four elements for 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 that control over the item.
156
Assisting in disposal or concealment of stolen property
(must prove)
Both
- **actual assistance** and
- **guilty knowledge.**
Doctrine of recent possession does not apply.
157
Receiving legally possible
(Case Law)
R v Donnelly
158
Receiving legally possible
R v Donnelly held...
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.
159
Must receive the property stolen
(Case Law)
R v Lucinsky
160
Must receive the property stolen
(R v Lucinsky held)
The property received must be the property stolen or illegally obtained (or part thereof), and not some other item for which the illegally obtained property had been exchanged or which are the proceeds.
161
Conviction to be regarded as conclusive proof of guilt.
*Section 49 of the Evidence Act 2006* provides that the conviction of an individual is conclusive proof of that person's guilt, unless allowed to be contested by the judge in later proceedings.
So, can rely on conviction as proof property stolen or dishonestly obtained.
162
Concept of title
(define)
'a right or claim to the ownership of property'
163
Section 246(4), Crimes Act 1961
IF:
(a) any property stolen or obtained by any other imprisonable offence has been returned to the owner, **or**
(b) legal title to any such property has been acquired by any person--
**a subsequent receiving of it is not an offence, even though the receiver may know that the property had previously been stolen or obtained by any imprisonable offence.**
164
Knowing that property to have been stolen or so obtained
(Case Law)
R v Kennedy
165
**R v Kennedy** held
The guilty knowledge that the thing has been stolen or dishonestly obtained must exist at the time of receiving.
166
Reckless as to whether or not the property had been stolen
(Case Law)
Cameron v R
167
**Cameron v R** held
Recklessness is established if:
(a) the defendant recognized 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.
168
Circumstantial evidence of guilty knowledge
(list)
- possession of recently stolen property
- nature of the property, ie type, value, quantity
- purchase at a gross undervalue
- secrecy in receiving the property
- receipt of goods at an unusual place
- receipt of goods at an unusual time
- receipt of good in an unusual way
- concealment of property to avoid discovery
- removal of identifying marks or features
- steps taken to disguise property
- lack of original packaging
- type of person goods receive from
- mode of payment
- absence of receipt where receipt would usually be issued
- false statement as to the source of the goods
- false statement as to the date of acquisition
- nature of explanation given, eg false/inconsistent/no reasonable explanation
- false denial of knowledge, existence etc.
169
Other evidence of Receiving (big 3)
- Direct evidence of guilty knowledge
- Evidence of propensity
- Doctrine of recent possession
170
Doctrine of recent possession
(important points)
Only applied if **found in possession** of property recently stolen
*Recent* depends on
- the nature of the property, and
- the surrounding circumstamces
171
**Money Laundering**
(3 phases)
- **Placement** (cash enters the financial system)
- **Layering** (money is involved in a number of transactions)
- **Integration** (money is mixed with lawful funds to appear legit)
172
**Money Laundering**
(offences - subsection (2))
*Section 243, Crimes Act 1961*
*(2) - 7 years imprisonment*
- Everyone
- in respect of any property that is 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 the property is the proceeds of an offence
173
**Money Laundering**
(offences - subsection (3))
*Section 243, Crimes Act 1961*
*(3) - 5 years imprisonment*
- everyone who
- obtains **or** has in his possession
- any property (proceeds of an offence by another)
- with intent to engage in a money laundering transaction in respect of that property **and**
- knowing or believing that all or part of the property is the proceeds of an offence **or**
- being reckless as to whether the property is the proceeds of an offence
174
**Money Laundering**
Define conceal
**conceal**, in relation to property means to conceal or disguise the property, and includes to convert the property from one form to another, and to conceal or disguise the nature, source, location, disposition, or ownership of the property.
175
**Money Laundering**
Define "deal with"
**deal with**, in relation to property, means to deal with the property in any manner and by any means, and includes
- to dispose of the property, by sale, purchase, gift, or otherwise
- to transfer possession
- to bring into NZ
- to remove from NZ
176
**Money Laundering**
Define "interest"
**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
177
**Money Laundering**
Define "offence"
**offence** means an offence (or crime) that is punishable under NZ law, including any act, wherever committed, that would be an offence in NZ if committed in NZ.
178
**Money Laundering**
Define "proceeds"
**proceeds**, in relation to an offence means any property that is derived or realised, directly or indirectly, by any person from the commission of the offence
179
**Money Laundering**
Define "property"
**property** means real or personal property of any description, whether situated in NZ or elsewhere and whether tangible or intangible; and includes an interest in any such real or personal property.
180
**Money Laundering**
Define "money laundering transaction"
Is a **money laundering transaction** if, in concealing any property or by enabling any person to conceal any property, that person
- deals with that property; or
- assists any other person, whether directly or indirectly, to deal with that property.
181
**Criminal Proceeds (Recovery) Act 2009**
(Purpose)
(1) The primary purpose of this Act is to establish a regime for the forfeiture of property
- that has been derived directly or indirectly from significant criminal activity; or
- that represents the value of a person's unlawfully derived income
182
Tainted property
(define)
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
- includes property acquired by more than one activity if 1 of those is significant criminal activity
183
Qualifying instrument forfeiture offence
(define)
(a) an offence punishable by 5 years imprisonment or more.
(b) includes attempt, conspiracy, accessory, if punishable by 5 years imprisonment or more (as an attempt, conspiracy, or accessory)
184
Significant criminal activity
(define)
(a) punishable by 5 years imprisonment or more; or
(b) property, proceeds, or benifits of a value of $30,000 or more (directly or indirectly acquired or derived)
185
Unlawfully benefited from significant criminal activity
(define/elements)
- knowingly
- directly or indirectly
- derived a benifit from significant criminal activity
- whether or not that person was involved in the significant criminal activity.
186
Profit forfeiture order
(requirements)
- balance of probabilities
- Has unlawfully benefited from significant criminal activity
- Has interests in property
187
Money Laundering/Asset Recovery
(Suspect interview points)
- Suspect's legitimate income
- Suspect's illegitimate income
- expenditure
- assets
- liabilities
- acquisition of financial records, from banks, financing companies, loan sharks, family trust documents
- clarification of documentary evidence as above.
188
AATF
(Act & Section)
Section 71(1), Crimes Act 1961
189
R v Gibbs
The Court determined that the escapee was being helped by Gibbs due to Gibbs supplying provisions, despite an argument that they were for Gibbs' own benifit.
190
AATF assist to evade justice
(case law)
R v Gibbs
191
AATF actively suppress evidence
(case law)
R v Levy
192
R v Levy held
That Levy had done a deliberate act in relation to the evidence against the offender for the purpose of assisting that offender to evade justice.
