Association Offences Flashcards
Conspiracy (act, section and elements)
CA 1961 s310
- 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 omitting in New Zealand would be an offence
Parties to (act, section and elements)
CA 1961 s 66
- commits
- does or omits for purpose of aiding
- abets
- incites, counsels, procures
where 2 or more form a common intention, each is party to every offence committed by any of them in carrying out the common intention, if that offence was known to be a probable consequence
Accessory (act, section and elements)
CA 1961 s 71
- person A is party to an offence
- person B knows AND
- receives, comforts or assists A, OR tampers or suppresses evidence
- with intention to enable A to escape after arrest, OR avoid arrest or conviction
Attempts (act, section and elements)
CA 1961 s 72
- intent
- act
- proximity
MULCAHY V R
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…
R V SANDERS
A conspiracy does not end with the making of the agreement. The conspiratorial agreement continues in operation and therefore in existence until it is ended by completion of its performance or abandonment or in any other manner by which agreements are discharged
R V WHITE
Where you can prove thay a suspect conspired with other parties (one or more people) whose identities are unknown, that suspect can still be convicted even if the identity of the other parties is never established and remains unknown
Intent
A deliberate act (or omission) to bring about a specific result
Deliberate
More than accidental or involuntary
Act
To take action or do something, to bring about a particular result
Omission
The action of excluding or leaving out something or someone, a failure to fulfill a moral or legal obligation
Result
Aim, object or purpose
Conspiracy (completion, category and penalty)
Offence completed when agreement made with intent to carry out the agreement
Same category as substantive offence
Penalty TBC
R V RING
Offender convicted of attempted theft even though the item he attempted to steal was not inside the pocket he put his hand into. Had necessary intent and completed the required action
R V HARPUR
The court may have regard to the conduct viewed cumulatively up to the point when the conduct in question stops … the defendants conduct may be considered in its entirety. Considering how much remains to be done … is always relevant, though not determinative
HIGGINS V POLICE
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
POLICE V JAY
A man bought hedge clippings believing they were cannabis
R V DONNELLY
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
American Model Penal Code examples of attempts
- Lying in wait, searching for or following the contemplated victim
- enticing the contemplated victim to the scene
- reconnoitoring the scene of the contemplated crime
- unlawfully entering a vehicle, place, structure or enclosure in which contemplated crime is to occur
- possessing, fabricating or collecting materials to be employed in the commission of the contemplated crime
- soliciting an innocent agent to engage in conduct constituting an element of the crime
No defence to attempts
- defendant was prevented by some outside agent from doing something that was necessary to complete the full offence
- failed to complete the full offence due to ineptitude, inefficiency or insufficient means
- prevented from committing the full offence because of some intervening event that made it physically impossibe
Attempts (completion, category and penalty)
Offence completed when defendant completes an act that is sufficiently proximate with relevant intent.
Same category as principal offence.
If principal offence = life then attempt = 10 yrs.
All other cases, attempt = half of penalty of principal offence
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
R V RENATA
Held that where the principal offender cannot be identified, it is sufficient to prove that each individual accused must have either been the principal or a party in one of the ways contemplated by s66
LARKINS V POLICE
While it is unnecessary that the principal should be aware that he or she is being assisted, there must be proof of actual assistance
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 under s156 of the CA 1961 he is deemed to be in charge of a dangerous thing.
R V RUSSELL
Held that the accused was morally bound to take active steps to save his children, but by his deliberate abstention from so doing, and by giving the encouragement and authority of his presence and approval to his wife’s act he became a aider and abettor and thus a secondary offender
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
Principal party
Person who actually commits the offence, has both men’s rea and actus reus. Can be more that one for an offence.
Secondary party
A person who satisfies one of the criteria under s66 (aids, abets, incites, counsels or procures)
Aids
Assist either physically or by giving advise and information
Abets
Instigate or encourage.
Passive acquiescence may be considered abetting in some situations - similar to aiding by omission - where there is a ‘special relationship’ (legal or moral duty) and a failure to act this could be considered abetting.
Incite
Rouse, stir up, stimulate, animate, urge, spur on
Counsels
Intentionally instigate by advising a person on how best to commit an offence, or planning the commission of an offence for another person
Procures
Setting out to see that something happens and taking appropriate steps to ensure that it does
To cause an offence or ensure it’s commission by knowingly and intentionally obtaining another person to carry it out
Common intention
2 or more offenders agree to and embark on a joint enterprise together (an offence)
Innocent agent
Someone who is unaware of the significance of their actions. Not liable as a secondary party.
Parties (completion, category and penalty)
Offence completed when …
Category is TBC
Penalty is same as for substantive offence unless otherwise specifically stated in legislation
R V CROOKS
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.
R V BRIGGS
As with a receiving charge under s246(1), knowledge may also be inferred from wilfully blindness or a deliberate abstention from making inquiries that would confirm the suspected truth.
R V MANE
To be considered an accessory the acts done by the person must be after the completion of the offence
R V GIBBS
Highlighted that the acts done by an accessory must be to assist another person in some way to evade justice
R V LEVY
Defendant convicted as accessory for removing counterfeiting equipment after principal offender arrested, with intent to assist principal offender to evade justice. Held that he had done a deliberate act in relation to the evidence against the offender for the purpose of assisting that offender to evade justice
Wilful blindness
Intentional ignorance, deliberately not making an enquiry to confirm a belief
Recieves
Harboring or sheltering an offender
Comforts
Providing an offender with things (eg food, clothing)
Assists
Wide variety of things eg transport, lookout, finding buyers of stolen property, misleading authorities etc
Tampers
Alter (evidence)
Suppresses
Concealing or destroying (evidence)
Accessory (completion, category and penalty)
Offence is completed when the person receives, comforts, assists, tamper or suppresses with intent to help offender evade justice.
Same category as principal offence.
Principal offence = life, accessory = 7
Other offences - accessory = half
Perjury (act, section and elements)
CA 1961 s108
- a witness making any
- assertion as to any matter of fact, opinion, belief or knowledge
- in any judicial proceeding
- forming part of that witnesses evidence on oath
- whether in open court, or by affidavit or otherwise
- known by that witness to be false and
- intended to mislead the tribunal
Conspiring to defeat justice (act, section and elements)
CA 1961 section 116
- conspires to obstruct OR prevent OR pervert OR defeat
-the course of justice
Witness
Person who gives evidence and is able to be cross-examined in a proceeding
Assertion
Something declared or stated positively, often with no support or attempt made at furnishing evidence or proof of the assertions accuracy
Fact
A thing done, an actual occurrence or event, and it is presented during court proceedings in the form of witness testimony and evidence
Opinion
A statement that tends to prove or disprove a fact.
Only admissible under s24 and 25 of the Evidence Act 2006 (admissibility of lay person and expert opinion evidence)
Belief
Subjective feeling regarding the validity of an idea or set of facts. More than suspicion but less than knowledge. Formed as a result of considering available evidence
Oath
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
Affirmation
Verbal or written declaration before a person who has authority to administered an oath, saying that a thing is true or right without reference to religious belief
Declaration
Promise to tell the truth
Judicial proceeding
- Court of Justice
- house of representative or any committee of that house
- arbitrator or umpire or any person authorised by law to make an enquiry and take evidence therein on oath
- legal tribunal by which any legal right or liability can be established
- any person having the power to hold a judicial proceeding
- disciplinary officer
- summary appeal court of NZ
- Court martial held under Armed Forces Discipline Act
Receiving (act, section and elements)
CA 1961 s246
- act of receiving
- any property stolen OR obtained by any other imprisonment offence
- knowing that at the time of receiving the property that it had been stolen OR obtained by imprisonable offence; OR being reckless
R V LUCINSKY
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
CAMERON V R
Recklessness is established if:
A) the defendant recognized that there was a real possibility that:
- his or her actions would bring about the proscribed result; &/or
- that the proscribed circumstances existed; &
B) having regard to that risk those actions were unreasonable
R V COX
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 his possession and an intention to exercise possession
CULLEN V R
There are four elements of possession for receiving:
1) awareness that item is where it is
2) awareness that the item has been stolen
3) actual or potential control of the item
4) an intention to exercise that control over the item
R V KENNEDY
The guilty knowledge that the thing has been stolen or dishonesty obtained must exist at the time of receiving
Property
Real and personal property, any estate or interest in any real and personal property, money, electricity, and any debt, and anything in action, and any other right or interest
Theft
Committed by a taking when the offender moves the property or causes it to be moved with intent to …
Title
A right or claim to the ownership of property
Reckless
Conscious and deliberate taking of unjustified risk
Real possibility
Could well happen
Doctrine of recent possession
Is the presumption that where the defendant acquired possession willingly, the proof of possession by the defendant of property recently stolen is, in the absence of a satisfactory explanation, evidence to justify a belief and finding that the possessor is either the thief or receiver.
Money laundering (act, section and elements)
CA 1961 s243
- 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
- a person engages in a money laundering transaction if in concealing any property OR by enabling any person to conceal any property
- deals with that property OR assists any other person directly or indirectly to deal with that property
Conceal
In relation to property, means to disguise the property and includes to convert from one form to another, conceal or disguise the nature, source, location, disposition or ownership of the property or of any interest in the property
Interest
A legal or equitable estate or interest in the property; or a right, power or privilege in connection with the property
Deal with
In any manner or by any means, including to dispose of the property (by gift, sale or otherwise), transfer possession, bring into NZ, remove from NZ
Offence
An offence punishable under NZ law including any act, wherever committed that would be an offence in NZ if committed in NZ
Proceeds
In relation to any offence, means any property that is derived or realised, directly or indirectly, by any person from the commission of the offence
Money laundering cycle
Placement - cash enters financial system
Layering - money is involved in a number of transactions
Integration - money is mixed with lawful funds or integrated back into the economy with the appearance of legitimacy
Criminal Proceeds (Recovery) Act 2009
s24 - restraint of tainted property:
- application made by commissioner
- approved upon court having RGTB property is tainted
s25 - restraint of all or part of property
- application made by commissioner
- approved upon court having RGTB respondant has unlawfully benefitted from significant criminal activity
s26 - restraint of instrument of crime
- application made by prosecutor
- with or without notice (CADD)
- approved upon defendant being charged with qualifying offence and court having RGTB that property is an instrument of crime
s50 - type 1 assets forfeiture
- application to HC by commissioner
- approved upon balance of probabilities that property is tainted
s55 - profit forfeiture order
- application to HC by commissioner
- approved upon balance of probabilities that respondant has unlawfully benefitted from significant criminal activity AND has interest in the property
Tainted property
Any property that has wholly or partly 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 the activities is a significant criminal activity
Significant criminal activity
Offences punishable by 5 years or more imprisonment OR from which proceeds are $30,000 or more
Unlawfully benefitted from criminal activity
Knowingly derived a benefit from significant criminal activity (whether or not that person undertook or was involved in that activity)
Instrument of crime
Propertyvused to commit or facilitate the commission of a qualifying instrument forfeiture offence; funds used to commit terrorism
Qualifying instrument forfeiture offence
Offence punishable by 5 years or more imprisonment AND includes any attempt, conspiracy, accessory after the fact
