Association Offences Flashcards
Define R v MULCAHY
A conspiracy exists not merely in the intention of 2 or more but in the agreement of two or more to do an unlawful act or commit a lawful act but by unlawful means, so long as the design rests in intention only it is not indictable, when 2 or more people agree to carry the intended offence into effect the very plot is an act in itself.
When is a conspiracy complete?
upon the agreement being made with the intention to commit the full offence
What case law relates to when a conspiracy ends?
R v SANDERS A conspiracy does not end in the making of an agreement, the conspiratorial agreement continues in its operation and therefore existence until it is ended by completion of its performance or abandonment or in any other means in which agreements are discharged.
When is a conspiracy not under NZ jurisdiction
When the offence is not an offence in NZ or when the conspirator is not physically present in NZ acting in continuance of the conspiracy
Why should you not lay a conspiracy and substantive charge?
1) the evidence only admissible against the conspiracy may have a prejudicial effect against the substantive charge. 2) The judge may disallow the evidence as too prejudicial. 3) the additional conspiracy charge may unnecessarily prolong or complicate the trial. 4) where the conspiracy charge is not founded on evidence or is an abuse of process it may be quashed. 5) Severance may be ordered meaning each charging document is heard independently.
When can somebody withdraw from a conspiracy?
Prior to the agreement being reached but not after it.
What should you consider when interviewing a conspiracy suspect?
1) the existence of an agreement to commit an offence OR 2) the existence of an agreement to omit an act that would amount to an offence. 3) the intent of those involved in the agreement 4) the identity of those involved 5) whether anything was written, said or done to further the common purpose.
Define R v WHITE
Where you can prove a suspect conspired with other parties whose identities are unknown, that suspect can still be convicted even if the identity of the other parties is never established or remains unknown.
What must the mens rea of a conspirator be?
To commit the full offence
What is the exception to the hearsay rule in respect to conspiracy?
Anything a co conspirator jointly charged said or did is admissible against the jointly charged, this does not include explanations after the common purpose is carried out, these explanations are only admissible against the person making them.
What needs to be covered when interviewing witnesses to a conspiracy?
1) with whom agreement was made 2) the identity of those present at the time of the agreement 3) what offence was agreed to 4) any acts carried out to further the common purpose.
What are the three conditions required for a Attempts conviction
1) Intent to commit an ofence 2) Did or ommitted to do something to achieve that end 3) Acts are sufficiently proximate to the full ofence
Define R v RING
In this case the offenders 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 to steal whatever property might have been discovered in the victims pocket was present and demonstrated by his actions, the remaining elements were satisfied also.
Define R v HARPUR
The court may have regard to the conduct viewed cumulatively up to the point where the conduct in question stops, the defendants conduct may be viewed in its entirety, considering how much remains to be done is always relevant although not determinative.
Higgins V Police
Where plants being cultivated as a cannabis were not in fact cannabis it is physically not legally impossible to cultivate such prohibited plants. Accordingly is is possible to commit the offence of attempting to cultivate cannabis.
Police v JAY
A man bought hedge clippings believing they were cannabis (Physically not legally impossible)
What case law relates to legally impossible to attempt an offence
R v DONNELLY Where stolen property has been returned to the owner or 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 the property has been previously stolen or dishonestly obtained.
When are you not able to charge a person with an attempt to commit an offence?
1) the criminality depends of recklessness or negligence; eg manslaughter. 2) An attempt to commit an offence is included in the definition of the offence eg; assault. 3) the offence is such that it has to be completed for it to exist at all eg; demands with menace.
When is an offence physically impossible?
if it is an offence but the suspect is unable to commit it due to 1) ineptitude, 2) insufficient means, 3) interruption 4) or any other circumstances beyond his control.
What is the relevance of “sufficiently proximate to the full offence”
to prove an attempt the accused must have done or omitted to do some act that is sufficiently proximate to the full offence
what are the 3 defences that a person has no recourse for once they have committed an act sufficiently proximate to the full offence?
1) were prevented by some outside agent from doing something necessary to complete the offence 2) could not complete the offence due to ineptitude, inefficiency or insufficient means. 3) could not complete the offence because of some intervening act made it physically impossible.
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 are main points in R v Renata
R v RENATA “the court held that where the principal offender cannot be identified, it is sufficient to prove that each individual accused must have been the principal or party, in one of the ways contemplated in s.66(1)” Method 1: each offender satisfies the elements of the offence committed together Method 2: each offender separately satisfies part of the actus reus.
Which case law relates to actual proof of assistance being required?
larkins v Police “while it is unnecessary that the principal should be aware that he is being assisted, there must be proof of actual assistance.”
Define Ashton v Police in respect of a legal duty to act to prevent an ofence
“an example of a secondary party owing a legal duty to a third party or the general public is a person teaching another to drive. that person is in nz under a legal duty to take responsible precautions becoz under s.156 he is deemed to be in charge of a dangerous thing.”
Define R v RUSSEL in respect of a moral duty to act
R v RUSSEL the court held that the accused was morally bound to take active steps to save his children, but from his deliberate abstention from doing so, and by giving the encouragement and authority of his presence and his approval to his wife he became and aider and abettor and thus a secondary offender
Define R v BETTS and RIDLEY with respect to a 66(2) and a common intention and liability for an act that was a probable consequence
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 party taking no physical part in it would not be held liable for any violence used.
what must be the intent held for a person charged with being an accessory after the fact?
to enable the offender to: 1) escape after arrest 2) avoid arrest 3) avoid conviction
what is considered: 1) harboring an offender or offering them shelter? 2) providing things such as food or clothes? 3) providing transport, acting a a lookout, offering advice, information, material or services?
1) receiving 2) Comforting 3) assisting
what must the knowledge of the accessory be at the time of assitance
1) an offence has been committed 2) the person they are assisting was a party (principal or secondary) to the offence
what is the penalty for being an accessory?
Life = 10 10+ = 5 under 10 = 1/2
Can an accessory be convicted if the principal is aquitted
yes unless the conviction is inconsistent with the acquittal of the primary
How may accessories be identified?
1) an admission by the accessory 2) an admission by the offender 3) information from independent witness 4) circumstantial evidence 5) electronic interceptions 6) electronic communications 7) forensic evidence 8) officers observations
under what circumstances can you charge somebody with being an AATF when they receive stolen goods?
When their intent in receiving the goods is to assist the provider to evade justice by escaping after arrest, avoiding arrest or conviction.
What are the tops and sides to AATF
AATF s.71(1) CA61 life + 10, 10+ = 1/2, <10 = 1/2 1) Knowing any person to be a party to an offence 2) Receives, comforts or assists that person OR Tampers with or actively suppresses evidence against him or her 3) In order to enable him/her to escape after arrest OR to avoid arrest or conviction.
knowing any person to be a party to an offence
Knowing the accused must have knowledge that the person they are being an accessory to was a party to an offence at the time of assisting them. SIMESTER and BROOKBANKS Knowing means knowing or correctly believing, the belief must be a correct one, where the belief is wrong a person cannot know something. R v CROOKS knowledge means actual knowledge or belief in the sense of no real doubt that the person assisted was a party to the relevant offence. Rv BRIGGS Knowledge can be inferred from willful blindness of a deliberate abstention from conduction an inquiry that would confirm the suspected truth PERSON GN P by JN or C. Party s.66(1) CA61 Defined as being any person who: a) commits 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, procures any person to commit the offence OFFENCE any act or omission that is punishable on conviction under any enactment demarcated into 4 categories A person charged with being an AATF is entitled to insist on proof of the principal crime and to challenge evidence on if even of the principal offender has pleaded guilty.
Receives comforts or assists that person OR Actively tampers with or activly suppresses evidence against that person
Receives comforts or assists: the accused does a deliberate act for the purpose of assisting the person to evade justice. the act done must actually help the person in some way. Actively tampers with or actively suppresses evidence: must do a deliberate act in relation to evidence against the offender for the purpose of assisting the person to evade justice. the act must actually help the person.
in order to enable him/her to escape after arrest OR in order to enable him/her to avoid arrest or conviction
R v MANE To be considered an accessory the acts done by the person must be after the completion of the offence. The acts must have specifically assisted the offender after they had been arrested. OR all acts must be done by the accused with the express intention that the person evades justice by avoiding arrest o conviction.
What are the elements of perjury s.108(1) CA61
1) A witness 2) making any assertion as to a matter of fact, opinion, belief or knowledge 3) in any judicial proceeding 4) forming part of that witnesses evidence on oath 5) known by that witness to be false and 6) intended to mislead the tribunal.
When is the offence of perjury complete
at the time of the false evidence accompanied by the intent to mislead the tribunal Where the intent is absent there is no offence
Discuss the need for corroboration in a charge of perjury
s.121 EA06 in cases of perjury, false oath and false statements and declarations a person cannot be convicted of the evidence of one witness there must be corroborative evidence.
What are some examples of misleading justice?
Preventing a witness from testifying. threatening/bribing a witness threatening/bribing jury members concealing the fact an offence has occurred intentionally giving false information to obstruct a police inquiry supplying fale info to probations assisting a wanted person to leave the country arranging a false alibi
When can you start a prosecution for perjury?
1) at the recommendation of the courts 2) at the direction of the commissioner you may however begin inquiries at any time.
What two points need to be covered when interviewing a perjury suspect?
Whether they knew the assertion was false. Whether the intended to mislead the tribunal.
When may a lay witness assert an opinion?
where it is necessary for the witness to communicate or for the fact finder to understand what they saw, heard or otherwise perceived.
What are the elements of fabricating evidence?
Fabricating evidence s.113 CA61 7 years With intent to mislead any tribunal holding judicial proceedings to which s.108 (perjury) applies fabricates evidence by means other than perjury.
What are the elements of receiving?
Receiving s.246(1) CA61
Receiving
Any stolen property or property obtained by an imprisonable offence
knowing it to be stolen or so obtained
OR reckless as to whether it had been stolen or so obtained
When is the act of receiving complete?
as soon as the offender hs exclusive or joint control over the property. it is not necessary that they have physical custody and can include where the offender aids in the concealment or disposal of the property.
R v Lucinsky
“The property received must be the property stolen or illegaly obtained (or part thereof) and not some other item for which the illegally obtained property had been exchanged or are the proceeds.”
the offender must receive the property stolen allthough it need not be in the same ocndition nor be in full (can include parts of the property)
What are the three ways in whoch title can be avoided?
Report to police
Communicating directly with the deceiver
taking all reasonable and possible steps to bring it to the deceivers notice eg sending a letter or memail or ad in the paper
What are examples of circumstantial evidence that property was stolen
1) possesion of recently stolen property
2) the nature type and quantity of the property
3) purchase at gross undervalue price
4) secrecy in exchanging the property
5) receipt of goods in unusual places / time / way
6) concealment of property to avoid discovery
7) removal of identifying marks or features
8) steps taken to disguise property
9) lack of original packaging
10) mode of payment
11) absence of receipt where one would usually be expected
12) false statment as to source of good / date of aquisation
explain the doctrine of recent possesion
the presumption that, guilt may be infered in circumstances where a person is found in possesion of recently stolen goods in the absence of a satisfactory explanantion, ie he is either the theif or the receiver.
Section and penalty of Money Laundering
S.243
(2) With respect to any property which are the proceeds of an offence, engages in a money laundering transaction, knowing or believing or being reckless as to whether that or part of the proerty is the proceeds of an offence: 7 years
(3) obtains of has in their possesion any property which are the proceeds of an offence commited by another person, with intent to engage in a oney laundering transaction in respect of that property, AND knowing, beliving or being reckless as to whether all or part of the property is the proceeds of an offence: 5 years
what is the definition of tainted property
property which all or part has been aquired as a direct result of significant criminal activity or directly or indrectyl derived from significant criminal activity.
What is a qualifying instrument forfeiture offence
An offence punishable by 5+ imprisonment and any attempt / conspriacy / AATF to an offence of 5+ years
What does s.142B of the sentencing act refer to?
The obligation on the prosecutor to advise the court of any relevant property that is the instrument of crime so that forfeiture of the property can be considered as part of the sentencing process
What is an application for restrining order relating to instrument of crime
Application for the restainment of property whille criminal proceedings take place to prevent disposal of the asset or erosion of its value, can be made with or without notice if the court is satisfied there is a risk to the proerty being disposed / destroyed / altered / concealed.
it is valid for 1 year
can only be applied for a Asset recovery unit
What must be included in an affidavit for an application for restraining order relating to instrument of crime?
Name of officer in charge.
Details of the offender and charges faced
Details of the nature of the offending involving the property
Any admissions made
The property concerned
When interviewing a suspect about money laundering or where proceeds recovery action is to be considered what should be considered?
The suspects legitimate income.
The suspects illegitimate income
Expenditure
Assets
Liabilities
Aquisition of financial records eg; banks/finance companies/loan harks/family trust documents
claification of any documentary evidence as above located
What is the definition of an instrument of crime?
any vehicle or property used in the facilitatation of the offences cimmitted.
The test for proximity - Attempts to commit an offence – MC - pg25
What questions should be asked in determining the point at which an act of mere preparation may become an attempt:
- Has the offender done anything more than getting himself into a position from which he could embark on an actual attempt? Or
- Has the offender actually commenced execution; that is to say, has he taken a step in the actual crime itself?
Actual proof of assistance is required - Parties to offences – SA – pg38
What are some Examples of assistance:
- Keeping lookout for someone committing a burglary
- Providing a screwdriver to someone interfering with a motor vehicle
- Telling an associate when a neighbor is away from their home so as to allow the opportunity to commit a burglary
When considering the principal charge of money laundering, under s243(2), proof of the following four elements is required?
- Dealing with property or assisting with such dealing
- The source of the property being the proceeds of an offence punishable by 5 years 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
Profit forfeiture order - Criminal proceeds definitions – SA – pg100
Section 55, CPA 2009
When must The High Court must make a profit forfeiture order?
if it is satisfied on the balance of probabilities that –
- The respondent has unlawfully benefited from significant criminal activity within the relevant period of criminal activity; and
- The respondent has interests in property
What was held in R v DONNELLY?
Legally impossible – Receiving – SA – pg87
R v Donnelly
Where stolen property has been physically recovered by the Police, it is legally impossible to commit the crimes of receiving or attempted receiving in respect of it, although there may be evidence of conspiring to receive property dishonestly obtained
