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Drugs Module > Association Offences > Flashcards

Association Offences Flashcards

1
Q

A conspiracy is?

A

An agreement between two or more people to commit an offence. It comes after the intent to commit the crime and before the attempt.

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2
Q

Conspiracy section?

Conspiracy to commit an offence.

A

Section 310 crimes act 1961

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3
Q

Ingredients for conspiracy section 310 CA1961

A
  • 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 NZ would be an offence
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4
Q

A conspiracy relies on?

A

The subjects (2 or more people) forming an agreement to do an unlawful act by unlawful means. R v Mulcahy

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5
Q

Mulcahy v R

A

A conspiracy consists not merely in the intention of two or more, but the agreement of two or more to do an unlawful act, or to do an unlawful 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.

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6
Q

At the centr of the conspiracy is

A

The plan (intended objective) of the parties concerned and the agreement or consensus of the two or more people.

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7
Q

When is conspiracy complete

A

Conspiracy is complete On agreement being made

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8
Q

PRACTICAL

6 examples of conspiring and misleading justice

Section 116 - 117 EA2006

A
  • preventing a witness from testifying
  • threatening or bribing a witness
  • threatening or bribing a jury member
  • arranging a false alibi
  • assisting a witness from leaving the country
  • concealing the fact an offence as been committed
  • supplying false information to probation officer
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9
Q

SHORT ANSWER

What do you need to prove accessory after the fact?

A

Section 71 CA61

One who knowing any person to have been a party to the offence, receives, comforts or assists that person or tampers with or actively suppresses any evidence against him in order to enable him to escape after arrest or to avoid arrest or conviction.

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10
Q

SHORT ANSWER

what do you need to prove for section 71 CA61

A

That the person (person A), who is received, comforted or assisted by the accessory (person B), is a party to an offence that has been committed and

That at the time of receiving, comforting or assisting person A, person B knew that person was a party to the offence and

That person B received, comforted or assisted person A or tampered with or actively suppressed any evidence against person A and

That at the time, the accessorys purpose was to enable person A to escape after arrest or to avoid arrest or conviction.

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11
Q

ACCESSORY AFTER THE FACT

section 71 CA61

A

One who, knowing any person to have been a party to an offence, receives, comforts or assists that person or tampers with or actively suppresses any evidence against him in order to enable him to escape after arrest or avoid arrest or conviction.

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12
Q

SHORT ANSWER

What was held in Renata?

A

When the principal offender cannot be identified,it is sufficient to prove that each individual accused must have been either the principal or a party in one of the ways contemplated in S66(1)

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13
Q

SHORT ANSWER

what was held in S66(2)?

A

When 2 or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the common purpose

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14
Q

SHORT ANSWER

define tainted property

Section 5 CPA2009

A

(a) Means any property that has wholly or in part been,

I) acquired as a result of criminal activity or
Ii) directly or indirectly derived from significant criminal activity and

(b) includes any property that has been acquired as a result of, or directly or indirectly derived from more than one activity if at least one of those activities is a significant criminal activity.

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15
Q

SHORT ANSWER

what is the meaning of unlawful benefit?

Section 7 CPA2009

A

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 they were involved or undertook the serious criminal activity).

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16
Q

SHORT ANSWERS

explain the doctrine of recent possession?

A

It applies to receiving as well as theft - it is the presumption that, where the defendant acquired possessions willingly and the proof of how they acquired it is unsatisfactory, is evidence to justify the belief that the finder is either the thief or receiver

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17
Q

SHORT ANSWER

what intent is required for a charge of perjury?

A

The intention must be to mislead the tribunal! And is complete at the time the false evidence is given.

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18
Q

SHORT ANSWER

what was held in R v Donnelly?

A

A person cannot be charged with receiving if the stolen property has been returned to the owner even if the receiver had knowledge it was stolen

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19
Q

PRACTICAL

what points should be covered when interviewing someone for money laundering?

A
  1. Suspects legitimate income
  2. Suspects illegitimate income
  3. Expenditure
  4. Assets
  5. Liabilities
  6. Acquisition of financial records
  7. Clarification of documentary evidence located
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20
Q

SHORT ANSWER

what is the exception to hearsay rule for conspiracy?

A

Anything a conspirator or party to a joint charge says or does to further the common purposes admissible against the others involved - this does not include explanations made after the common purpose is carried out

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21
Q

SHORT ANSWER

When can you NOT prosecute for attempts to commit a crime?

A
  • the criminality depends on recklessness or negligence eg, manslaughter
  • an attempt to commit an offence is included within the definition of that offence eg, assault
  • the offence is such that the act has to have been completed in order for the offence to exist at all.
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22
Q

SHORT ANSWER

When is receiving complete?

A

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.

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23
Q

SHORT ANSWER

What must the prosecution prove against receiving or having control over the stolen property?

A

That the receiver arranged for the property to be delivered there or that upon discovering the property, he or she, intentionally exercised control over it - control over the property may still be exercised by a receiver when the property is in the possession of the receivers agent or servant.

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24
Q

SHORT ANSWER

What must the high court satisfy when making a profit forfeiture.

A

Section 55 CPA2009 - if it is satisfied on the balance of probabilities that

  • (a) the respondent has unlawfully benefitted from significant criminal activity within the relevant period of criminal offending and
  • (b) the respondent has interests in e property
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25
Q

SHORT ANSWER

What must occur before criminal proceeds action is taken?

A

A restraining order is the first step in the process of asset seizure

  • in the case of tainted property do benefits from crimes application made to the high court must show reasonable grounds to believe that the property is tainted - that it has been acquired or directly or indirectly derived from significant criminal activity
26
Q

SHORT ANSWER

What constitutes a party?

A

Participation must have occurred before or during (contemporaneous with) the commission of the offence and before the completion of the offence

27
Q

SHORT ANSWER

What is the mental intent for conspiracy

A

The offenders mental intent must be to commit the full offence, where is intent does not exist no offence has been committed

28
Q

SHORT ANSWER

Explain the act must be sufficiently proximate to the full offence?

A

The defendant must have started to commit the full offence and have gone beyond the phase of mere preparation. This is the “all but” rule.

29
Q

SHORT ANSWER

Once an act is sufficiently proximate- they have no defence that they?

A
  • were prevented by some outside agent from doing something that was necessary to complete the offence
  • they failed to complete he full offence due to ineptitude, inefficiency or insufficient means
  • were prevented from committing the offence because an intervening event made it physically impossible.
30
Q

SHORT ANSWER

Give 4 examples of circumstantial evidence of guilty knowledge?

A
  • possession of recently stolen property
  • purchased at gross under value
  • secrecy in receiving the property
  • removal of identifying marks or features
31
Q

SHORT ANSWER

When interviewing suspects and witnesses about conspiracy, what must you cover?

A

Witness

  • 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

  • the existence of an agreement to commit an offence or
  • the existence of an agreement to omit to do something that would amount to an offence and
  • the intent of those involved in the agreement
  • the identity of all concerned
  • whether anything was written, said or done to further the common purpose
32
Q

SHORT ANSWER

When to lay a conspiracy charge or substantive charge?

A

Charges of conspiracy should not be laid in situations where the specific substantive charge can be proved. (R v Humpheries)

33
Q

SHORT ANSWER

What are the two essential ingredients for fabricating evidence

A
  • The intent to mislead any tribunal holding any judicial proceeding
  • fabricates evidence by any means other than perjury
34
Q

SHORT ANSWER

Money laundering- knowledge and belief

A

That the property was the proceeds of such an offence or recklessness as to whether it was the proceeds of such an offence

35
Q

SHORT ANSWER

Larkins v police - party to offence

A

While it is unnecessary that the principal should be aware that he or she is being assisted, there must be proof of actual assistance. The mere commission of an act intended to have that effect is insufficient.

36
Q

SHORT ANSWER

When interviewing an accessory,what know.edge must be proved

A

An offence has been committed and the person they are assisting was a party to that offence

37
Q

SHORT ANSWER

Circumstances when it is permitted for lay witnesses to give opinion evidence?

A

Section 24 EA2006 -

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

38
Q

PRACTICAL

What 4 points to prove money laundering

A
  • dealing with property or assisting with such property
  • the source of the property being the proceeds of an offence that is punishable under NZ law, including any act whenever committed, that would be an offence in NZ if committed in NZ
  • knowledge or belief that the property was the proceeds of such an offence, or recklessness as to whether it was the proceeds of suck an offence.
  • an intention to conceal the property
39
Q

PRACTICAL

Criminal proceeds - affidavit required for application from O/C outlining:

A
  1. officer in charge
    - details
  2. Offenders
    - details
    - charges
    - criminal convictions
  3. Search warrant
    - describe nature of offending discovered at or involving the property concerned
    - where the value of the asset is high, you need to demonstrate that the offending was at more of a commercial level
  4. Property
    - describe the property sought to be restrained and its value
    - show that the offender owns, has custody or control
40
Q

INGREDIENTS

ACCESSORY AFTER FACT
SECTION 71
CA61
7 years/5years/half

A 
Knowing
Any person
Party - 66(1)
Offence - Section 2 CA61
Comforts/assists/receives
Or
Tampers with/ actively suppresses any evidence 
Escap/arrest/conviction
41
Q

INGREDIENTS

PARTY TO 66(1)
CA 61

A

1) Everyone is party to and guilty of an offence who:
a) actually commits offence or
b) does or omits an act for the purpose of aiding any person to commit an offence; or
c) abets any person in the commission of the offence or
d) incites, councils or procures any person to commit the offence

42
Q

INGREDIENTS

OFFENCE
SEC2
CA 61

A

Any act or omission for which anyone can be punished under this act or under any other enactment whether on conviction on indictment or on summary conviction.

43
Q

LIABILITY - accessory after the fact

Knowing

A

The accused must have knowledge that the person being assisted is a party to an offence

SIMESTER AND BROOKBANKS: principals of criminal law
Knowing means “correctly believing”

R V CROOKS: knowing means actual knowledge or belief in the sense of having no real doubt!

44
Q

LIABILITY- ACCESSORY AFTER THE FACT

party. - section 66(1) CA61

A

(1) everyone is party to and guilty of an offence who:
(a) actually commits an 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, councils, or procures any person to commit the offence

45
Q

LIABILITY - ACCESSORY AFTER THE FACT

OFFENCE - Section 2 CA61

A

Any act or omission for which anyone can be punished under this act or under any other enactment whether on conviction or indictment or on summary conviction.

46
Q

LIABILITY- ACCESSORY AFTER THE FACT

RECEIVES, comforts or assists

A

The accused does a deliberate act for the purpose of assisting the person to evade justice. The act must help the person in some way.

47
Q

LIABILITY - ACCESSORY AFTER THE FACT

Tampers with or actively suppresses evidence

A

Must do a deliberate act in relation to evidence against the offender for purpose of assisting person to evade justice. The act must actually help the person.

48
Q

LIABILITY - ACCESSORY AFTER THE FACT

ESCAPE ARREST OR CONVICTION

A

The action taken must be intended to assist the person to evade justice

49
Q

LIABILITY - CONSPIRACY.

CONSPIRES

A

Conspiracy requires a mental and physical intent.

50
Q

LIABILITY - CONSPIRACY

MULCAHY V R

A

A conspiracy consists not merely in the intention of two or more but the agreement of two or more to do an unlawful act or to do a lawful act by unlawful means

51
Q

LIABILITY - CONSPIRACY

MENTAL INTENT

A

The mental intent is the intent to commit the offence

52
Q

LIABILITY - CONSPIRACY

Between two or more persons

A

A person cannot conspire alone, there must be another conspirator for an offence to be committed

53
Q

LIABILITY - CONSPIRACY

OFFENCE - Section 2 CA61w

A

Means any act or omission that is punishable on conviction under any enactment and is demarcated by four categories.

54
Q

INGREDIENTS for conspiracy

Section 310
CA 61

A

Conspire
With any person
To commit an offence

55
Q

INGREDIENTS - receiving.

Section 246
CA61
7/1/3mnths

A

RECEIVES -section 246(3) CA61

The act of receiving any property stolen or obtained by another crime is complete as soon as the offender has exclusively or jointly with the thief or any other person, possession of or control over the property or helps in the concealing or disposing of the property.

56
Q

INGREDIENTS - receiving

Possession

A

Possession may be actual or constructive

Actual possession - is where the thing in question is in a persons physical custody,it is on or about their person or immediately at hand

Constructive possess - arises when the property is not in their physical custody, but they have ready access to it or can exercise control over it.

57
Q

LIABILITY - receiving - case law for possession

Warner v metropolitan police commissioner

A

A possessor of a thing has complete physical control over it - knowledge of it’s existence, its situation and its qualities.

58
Q

Case law

Possession - receiving

SULLIVAN V EARL OF CAITHNESS

A

Possession includes not merely those who have physical custody of firearms

59
Q

R v DONNELY

A

No offence if the stolen property has been returned to owner. Even if the receiver had knowledge property was stolen

60
Q

R V lucinsky - property

A

Property received must be stolen or obtained by a crime.

61
Q

Receiving - any property means

Section 2 CA61

A

Includes any real or personal property, any estate or interest in any real property, anything in action, any other right of interest

62
Q

Receiving - knowing that the property to have been stolen or obtained.

A

SIMESTER AND BROOKBANKS: principals of criminal law

Knowing means correctly believing

R V KENNEDY
a guilty knowledge that the thing has been stolen or dishonestly obtained must exists at the time of receiving.

Drugs Module (2 decks)

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