Associations Flashcards
Section and elements for Conspiracy
S310 Crimes Act 1961
-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
***Do not use for murder, treason, piracy, false accusations, defeating justice
Mulcahy v R
Application - Conspires
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.
Notes on withdrawing from an agreement (conspiracy)
A person withdrawing from the agreement is still guilty of conspiracy unless withdrawn before the actual agreement is made.
R v Sanders
Application - Conspires (when conspiracy ends)
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 the completion of its performance or abandonment or in any other manner by which agreements are discharged.
R v White
Application - With any person/ two or more people
Where you can prove that 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 and remains unknown.
Define omit/omission
A failure to fulfil a moral or legal obligation
Notes on jurisdiction (Conspiracy)
Where any act or omission forming part of any offence or any event necessary to the completion of any offence, occurs in NZ, the offence shall be deemed to be committed in NZ.
Conspiracy case laws
Mulcahy v R
R v Sanders
R v White
Attempts case laws
R v Ring
R v Harpur
Higgins v Police
Police v Jay
R v Donnelly
Three elements of the attempt offence + Section
S72 CA61
-Intent to commit an offence
-Act - that they did or omitted to do, something to achieve that end
-Proximity - that their act or omission was sufficiently close
**must be legally possible to commit offence
R v Ring
Application - Intent (attempt) + When act is physically impossible
In the case the offender’s intent was to steal property by putting his hand into the pocket of the victim. Unbeknownst 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 inside the pocket was present in his mind and demonstrated by his actions.
R v Harpur
Application - proximity (attempt)
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.
Proximity test for attempts offences
-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
Who decides proximity?
S72(2) CA61 highlights that proximity is a question of law; it is a question that is decided by the judge.
Higgins v Police
Application - When an act is physically impossible
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
Application - When an act is physically impossible
A man bought hedge clippings believing they were cannabis
R v Donnelly
Application - When an act is legally impossible (attempt and receiving)
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.
Functions of a judge and jury in an attempt case
-The judge must decide whether the defendant had left the preparation stage
-The jury must then decide whether the facts presented by the Crown have been proved beyond reasonable doubt and if so must decide whether the defendant’s acts are close enough to the full offence.
Attempts punishment
Life -> 10 years
Non life -> half of original
Section/elements for Parties to Offence
S66(1) CA1961
(a)Actually 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, or procures any person to commit the offence.
Notes on Section 70 CA61 (parties related)
Everyone who INCITES, COUNSELS, or PROCURES another party 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, counselled or suggested.
What is required to be proved for a Party to the offence
-Identity of the defendant
-An offence that has been successfully committed
-the elements of the offence(S66(1)) has been satisfied
**Participation must have occurred before or during the commission of the offence.
R v Pene
Application - Intention to help or encourage (parties)
A party must intentionally help or encourage - it is insufficient if they were reckless as to whether the principal was assisted or encouraged.
What is a secondary party in relation to S66
People whose assistance, abetment, incitement, counselling or procurement is sufficient under S66(1)(b),(c) or (d) of CA61. The secondary party does not necessarily have to present when the offence is committed.
R v Renata
Application - Multiple offenders (parties)
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).
Define Aid (parties)
To aid means to assist in the commission of the offence, either physically or by giving advice and information.
Larkins v Police
Application - Proof of assistance/Aid (Parties)
While it is unnecessary that the principal should be aware that he or she is being assisted, there must be proof of actual assistance.
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 neighbour is away from their home so as to allow the opportunity to commit a burglary
Define Abets (parties)
To instigate or encourage; that is, to urge another person to commit the offence.
Presence at scene not required.
Notes on passive acquiescence and abetting
Mere presence does not create liability on the part of that person unless, in the circumstances, there is a special relationship between that person and the principle offender or where they owe a legal duty to the victim or the general public.
Ashton v Police
Application - Legal duty / Abet (parties)
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 NZ, under a legal duty to take reasonable precautions, because under S156 of CA61 he is deemed to be in charge of a dangerous thing.
R v Russell
Application - Special relationship/Abets (parties)
The court 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 an aider and abettor and thus a secondary offender.
Define Incite (parties)
To rouse, stir up, stimulate, animate, urge or spur on a person to commit the offence.
Define Counsels (parties)
To intentionally instigate the offence by advising a person on how to best commit an offence, or planning the commission of an offence for another person.
Define Procures (parties)
Setting out to see that something happens and taking the appropriate steps to ensure that it does.
Section and elements to a secondary offence
S66(2) CA61
Two or more people form a common intention to commit an offence - still a party to every offence committed if that offence was known to be a probable consequence.
R v Betts and Ridley
Application - Secondary offence (parties)
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.
Explain an innocent agent
Someone who is unaware of the significance of their actions and therefore cannot be convicted as a secondary party.
Time limit in charging a person as a secondary party
Same as that for the principle offender
Attempting to procure commission of an offence
Liable to the same punishment as if he had attempted to commit that offence.
Section and elements for AATF
S71(1) CA61
-Knowing any person to have been party to the offence
-Receives OR comforts OR assists that person OR tampers with OR actively suppresses any evidence against him
R v Crooks
Application - Guilty knowledge (AATF)
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 suspicious of their involvement in the offence is insufficient.
R v Briggs
Application - Wilful blindness (AATF)
Knowledge may also be inferred from wilful blindness or a deliberate abstention from making inquiries that would confirm the suspected truth.
R v Mane
Application - Completion of offence (AATF)
To be considered an accessory the acts done by the person must be after the completion of the offence.
Define Receiving(AATF)
Harbouring an offender or offering shelter.
Define Comforting
Harbouring an offender, offering shelter, offering food or clothing.
Define Assists
Providing transport or acting as look out. (providing services)
Define Tampering
To alter the evidence against the offender
Define Actively suppress
encompasses acts of concealing or destroying evidence against an offender
An accessory’s intent must be..
To enable the offender to
-Escape after arrest
-Avoid arrest
-Avoid conviction
Convicting an accessory
Can be convicted of attempting to be an accessory after the fact.
Can be convicted whether/not principal/other party convicted.
Section and elements for Perjury
S108 CA 61
-Witness making any assertion as to any matter of fact OR opinion OR belief OR knowledge
-In any judicial proceeding
-Forming part of that witness’s evidence on oath
-Known by that witness to be false
-Intended to mislead the tribunal
Define Witness (perjury)
Person who gives evidence and able to be cross-examined. Incl actively engaged in giving evidence or previously given evidence. Whether competent or if evidence admissible or not.
Define Assertion (perjury)
Thing declared/stated often with no support/attempt to get proof or assertions of accuracy.
Define matter of facts (perjury)
Thing done/actual event and presented in court in form of witness evidence.
Define Opinion (perjury)
Statement of opinion tending to prove/disprove a fact. Not admissible except as provided by S24/S25 (deals w expert evidence) Evidence Act.
Define Belief (perjury)
Subjective feeling regarding validity of idea. More than suspicion and less than knowledge.
Define Knowledge (perjury)
Knowing means knowing or correctly believing.
Differences between Oath, Affirmation and Declaration
Oath - Invoking a religious belief to say that a thing is true or right.
Affirmation - A verbal or written declaration saying that a thing is true or right without reference to religious belief.
Declaration - A promise to tell the truth for witnesses under 12 years of age.
Conspiring to defeat justice
S116 CA61 - 7 years
everyone who conspires to obstruct, prevent, pervert or defeat the course of justice
Corrupting juries and witnesses
S117 CA71 - 7 years
(a)Dissuades or attempts to dissuade any person by threats, bribes or other corrupt means from giving evidennce
(b)Influences or attempts to influence by threats, bribes or other corrupt means a member of the jury
(c)Accepts any bribe or corrupt consideration to abstain from giving evidence
(d)Accepts any bribe or corrupt consideration on account of his or her conduct as a member of the jury
(e)Wilfully attempts in any other way to obstruct, prevent, pervert or defeat the course of justice
Notes on investigation S116 and S117 (charging perjury)
May only commence a prosecution for perjury where it is recommended by the courts or you are directed to do so by the Commissioner of Police.
Section and elements for Receiving
S246 CA 61
-Act of receiving
-Any property stolen OR Obtained by any other imprisonable offence
-Knowing that at the time of receiving the property that it had been stolen OR obtained by any other imprisonable offence OR Being reckless as to whether or not the property had been stolen or so obtained.
When is receiving complete (receiving)
The offence of receiving is complete has soon as the offender has possession or control over the property.
R v Cox
Application - Possession (receiving)
Possession involves two elements. The first, the physical element, is the actual or potential physical custody or control. The second, the mental element, is a combination of knowledge and intention.
R v Cullen
Application - Possession for receiving test
There are four elements of possession for receiving
-Awareness that the item is where it is
-Awareness that the item has been stolen
-Actual or potential control of the item and
-An intention to exercise that control over the item
R v Lucinsky
Application - Property (receiving)
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.
Define property
Includes real and personal property, and 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.
R v Kennedy
Application - Knowing that property to been stolen (receiving)
The guilty knowledge that the thing has been stolen or dishonestly obtained must exist at the time of receiving
Cameron v R
Application - Recklessness (receiving)
Recklessness is established if the defendant recognised that there was a real possibility that his or her actions would bring about the proscribed result and/or that the proscribed circumstances existed and having regard to that risk those actions were unreasonable.
Examples of guilty knowledge (receiving)
-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
What is the doctrine of recent possession
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 belief and finding that the possessor is either the thief or the receiver.
Jurisdiction for Receiving
Receiving property that was obtained by any act committed overseas is an offence under NZ law only if the receiving takes place in NZ.
Section and elements for Money laundering
S243 CA61
-In respect of any property that is the proceeds of an offence
-Engages in a money laundering transaction
-Knowing or believing that all or part of the property is the proceeds of an offence OR being reckless as to whether or not the property is the proceeds of an offence.
What are the three phases of the Money Laundering Cycle?
PLACEMENT - Cash enters the financial system
LAYERING - Money is involved in a number of transactions
INTEGRATION - Money is mixed with lawful funds or integrated back into the economy, with the appearance of legitimacy.
Explain tainted property
means any property that has, wholly or in part been (i) acquired as a result of significant criminal activity or (ii) directly or indirectly derived from significant criminal activity
In relation to the offence of Perjury , what intent is required
The offence of perjury is complete at the time the false evidence is given accompanied by an intention to mislead the tribunal.
There must be an intention to mislead the tribunal, where this intention is absent, no offence is committed.
What is an Assest Forfeiture Order
Issued by High Court on application showing on balance of probability assets acquired are tainted by significant criminal act.
What is a qualifying instrument forfeiture offence
Offence punishable by max 5 years imprisonment or more. Includes an intent to commit, conspiring to commit or being an accessory to an offence if the max term for that attempt or conspiracy is 5 years or more.
Define significant criminal activity
Consists of one more offences punishable by max term of 5 years or from which property, proceeds or benefits of a value of $30,000 or more have directly, or indirectly, been acquired or derived.
Notes on Police acting as agents (recovering goods)
Police have implied authority from owner to recover property when complaint made. When Police take possession, it is considered restoration to owner BUT if Police watching stolen vehicle without having possession, it may not constitute restoration to owner.
What is a voided title and how to void a title
Title obtained by deception/fraud/duress/misrepresentation.
1) Communicate directly it to person
2) Take all reasonable and possible steps to give notice (letter, text, call)
3) Advise police circumstances of deception
False oaths (S110 CA 1961)
Liable 5 years if requested/authorised by law to make STX on oath/affirmation and makes STX amounting to perjury if made in judicial proceeding.
False statements or declarations (S111 CA 1961)
Liable 3 years if req/authorised by law to make STX/declaration before officer OR person authorised by law OR notary public and makes STX/declaration amounting to perjury if made on oath in judicial proceeding.
Evidence of perjury/false oath/false STX (S112 CA 1961)
Not convicted of perjury/offence against S110/S111 on evidence of one witness unless evidence corroborated in some material particular by evidence implicating defendant.
Fabricating evidence (S113 CA 1961)
Liable 7 years if intent to mislead tribunal holding judicial proceeding, fabricates evidence by any means other than perjury.
What is required to be proved by the Prosecution in relation to a charge of
money laundering.
-Dealing with property or assisting in such dealing (ACT)
-The source of the property being the proceeds of an offence punishable by 5 years imprisonment or more committed by another person. (SIGNIFICANT CRIME ACTIVITY)
-Knowledge or belief that the property was the proceeds of such an offence, or reckless as to whether it was the proceeds of such an offence (KNOWLEDGE)
-An intention to conceal the property.(INTENT)
Proceeds of crime - contents affidavit for asset restraining order.
O/C DETAILS
OFFENDER
-details
-charges
-criminal convictions
SEARCH WARRANT
-describe nature of offending involving property concerned.
ADMISSIONS MADE DURING INTERVIEW
PROPERTY
-described property sought to be restrained and its value
-show that offender owns, has custody or control.
Steps in interviewing witness and suspects in a Conspiracy Investigation
-Identity of the people present at the agreement
-With whom the agreement was made
-What offence was planned
-Any acts carried out to further the common purpose
Case law relating to parties
-R v Pene
-R v Renata
-Larkins v Police
-Ashton v Police
-R v Russell
-R v Betts and Ridley
Case law relating to AATF
-R v Crooks
-R v Briggs
-R v Mane
-R v Gibbs
-R v Levy
R v Gibbs
Application - Intent (AATF)
Highlights the act or acts done by the accessory must have helped the other person in some way to evade justice
Case law for Receiving
R v Lucinsky
Cameron v R
R v Donnelly
R v Cox
Cullen v R
R v Kennedy
