Associations Flashcards
List the section elements and punishment for:
Conspiracy
Conspiracy
S.310 Crimes Act 1961
7 years
-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 of in New Zealand would be an offence
What was held in R v Mulcahy?
R v Mulcahy held that:
“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 an unlawful means. So long as such a design rests in intention only it is not indictable but when two agree to carry it (the intended offence) into effect, the very plot in itself is an act”
What is a conspiracy?
A conspiracy is:
An agreement between two parties to pursue a conduct, which if carried out would amount to the commission of an offence , or would involve the commission of an offence by one or more of the parties
If a person enters into a conspiracy (agrees to pursue a conduct) but withdraws before the conduct commences still guilty of the offence of conspiracy?
A person withdrawing from a conspiracy is still guilty of conspiracy as are are those people who become party to the agreement after it is made unless they withdraw from the agreement before it is actually made between the parties
When is the offence of conspiracy complete?
The offence of conspiracy is complete once the agreement is made between two or more people to carry out a course of conduct with the required intent. It does not require any further progression towards its completion by the parties involved in the agreement.
What was held in R v Sanders in relation to when a conspiracy ends?
R v Sanders held that: “A conspiracy does not end with the making of the agreement. The conspiratorial agreement continues in operation and in existence until it is ended by the completion of its performance or abandonment in any other manner by which agreements can be discharged”
What are two parts of the ‘mens rea’ or intent that are required in a conspiracy?
The required intent for a conspiracy is that there is an:
-An intention by those involved to agree
(and)
-An intention that the relevant course of conduct should be pursued by those involved in the agreement
What is the ‘mens rea’ or intent necessary for a conspiracy?
The offenders mental intent must be to commit the full offence. Where this intent does not exist no crime has been committed
Define the two types of criminal intent?
An intention to:
-Do a deliberate act
-To get a specific result
What was held in R v Collister?
R v Collister held that an offenders intent can be seen in their words actions before during and after the event, the surrounding circumstances and the nature of the act itself
What was held in R v White in relation to conspiracy?
R V White held that where you can prove that a suspect conspired with other parties (one or more people) whose identities are not the known suspect can can still be found guilty even if the identity of the other conspirators is never known
What does S.310 Crimes Act say about conspiracy’s to commit offences overseas?
S.310 of the Crimes Act states that it is an offence to conspire to commit an offence or to do or omit to do anything in any part of the world that would be an offence in New Zealand. The defence to this however is if they can prove that the act or omission is not an offence in the country in which they agreed to commit it.
What are the evidence admissibility rules for conspiracy cases?
- Anything a conspirator party does towards effecting the common aim can be used in evidence against the other parties involved, in exception to the hearsay rule and as such conspirators should be jointly charged.
- However this does not include explanations given after the common aim has been carried out (interview), this is evidence against that person alone
What should you consider when deciding whether to charge someone with a conspiracy offence or the substantive offence?
-Laying both a substantive and a conspiracy charge is undesirable because:
-The evidence admissible on on the conspiracy charge may have a prejudicial effect in relation to other charges
-The judge may disallow the evidence as it will be too prejudicial, i.e. the jury may assume the defendants guilty knowledge or intent regarding the other charge and not look at the evidence, basing its assumption on the conspiracy charge
-The addition of a conspiracy charge may unnecessarily complicate and prolong a trial
-Where the charge of conspiracy is not founded on evidence or is an abuse of process, it may be quashed
-Severance may be ordered causing seperate trials
What evidence must there be in order for a conspirators evidence to be used against another co-conspirator?
There must be independent evidence of the conspiracy in order for the evidence of one conspirator to be used against his co-accused
What should be considered when interviewing witnesses in relation to a conspiracy?
Interviews with witness’ should cover:
-The identity of the people present at the time of the agreement
-Who made the agreement
-What the offence planned was
-Anything that has been done to further the common purpose
What should be considered when interviewing suspects in relation to a conspiracy?
Interviews with suspects should cover:
-The existence of an agreement to commit an offence (or)
-The exsistance of an agreement to omit to do something that would amount to an offence
-The intent of those involved
-The identity of all involved
-Whether anything was written, said or done to further the common purpose
What is the section and act that defines an ‘Attempt’ and what does it outline?
Section 72 of the Crimes Act 1961 defines what constitutes an attempt as:
S.72 (1)
Everyone who having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object.
S.72(2)
The question of whether or not the act done or omitted with intent to commit the offence is merely preparation for the commission of the offence and is too remote to constitute an attempt is to be a question of law
S.72(3)
An act or omission done with intent commit an offence may constitute an attempt if the act or omission is sufficiently proximate or connected to the offence, whether or not there was any act unequivocally showing the intent to commit the offence
What are the elements the Crown are required to prove for an ‘attempt’ offence?
The three key elements required to prove an attempts offence are:
-The identity of the suspects
AND
-Intent: There must be an intention to commit an offence
-Act: That they did, or omitted to do something to achieve their intent
-Proximity: That the act or omission was sufficiently proximate
What must be proven in relation to a defendant’s actions for an ‘attempts’ offence?
The crown must prove that the accused did or omitted to do something that was sufficiently proximate to the full offence. Effectively that the accused must have started to commit the full offence and had gone beyond the phase of mere preparation
What was held in R v Ring in relation to ‘attempts’
R v Ring held that the intent of the offender may be inferred from the act itself and proved by admissions or confessions
What was held in R v Harpur in relation to ‘attempts’
R v Harpur held that while independent acts when viewed in isolation may appear preparatory, when these same acts are viewed collectively they can take on a different context and therefore amount to a criminal attempt
How is the question of proximity determined?
Proximity is a question of law which is to be decided upon by a judge based on the facts of the case
What is the test for proximity?
-Has the offender done anything more than getting themselves into a position from which they could commit the offence?
-Have they actually began committing the offence and taken steps towards achieving their intent?
E.g driving to construction site with the intention to burgle it v.s starting to remove temporary fence panels in order to gain access to the building site in order to burgle it
Can someone be convicted of an ‘attempt’ offence is the act is legally or physically impossible?
A person cannot be convicted of an offence if the actions and intent were to commit an offence that they believed was illegal but in fact is not e.g attempting to steal a hallucinogenic plant that is not illegal to possess
However a person can be convicted of an ‘attempts’ offence if the action in question is physically impossible but is still illegal as they acted with criminal intent e.g. R v Ring (attempts to steal from someones pocket but nothing was in the pocket)
When is an ‘attempts’ offence completed?
An attempt is completed when the they have completed an act with sufficient proximity to the intended offence with the necessary criminal intent, even if they change their mind and stop before completing the full offence
Once they have acted with sufficient proximity there is no defence that they:
- Were prevented by some outside agent from doing something that was necessary to complete the full offence (interrupted during)
- Failed to complete the full offence because of ineptitude or insufficient means (not enough explosive to blow open safe)
- Were prevented by some intervening event that made it physically impossible (property removed before intended theft)
What are the functions of a Judge & Jury in relation to ‘attempts’ offences?
-The Judge must decide whether or not the defendant has left the preparation stage and was trying to complete the full offence
-The Jury must decide whether the actions taken by the defendant were close enough to the full offence and that they acted with criminal intent
In what circumstances can you not charge someone with an ‘attempts’ offence?
You cannot charge someone with an ‘attempts’ offence when:
-The criminality of the offence depends on recklessness or negligence (manslaughter -did not intend to cause death)
-An attempt to commit that offence is included in the definition of that offence (assault -apply’s or attempts to apply force)
-The offence is such that the act must be committed in order for the offence to exist (demand with menace -must maker demand and do so with menace)
If a defendant was charged with an attempt but the full offence was completed can they be convicted of the full offence?
No, if a person is only charged with an attempt and the full offence is committed they cannot be convicted of the full offence.
HOWEVER
If the defendant is charged with the full offence, but it is not made out, then they may be convicted of an attempt
What is the punishment for ‘attempt’
The punishment is half of that of the full offence, with up to 10 years imprisonment for life imprisonment offences
List the section and elements for ‘parties to’ offences
Section 66 Crimes Act 1961
S. 66(1)
-Every one is a party to an offence who:
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
What is outlined in S.66(2) CA1961 in relation to ‘parties to’ offences
Section 66(2) outlines:
Where 2 or more persons form a common intention to carry out any unlawful purpose and to assist each other in doing so, each one is a party to any offences committed by any of the other persons in the carrying out of the common intention, IF, it was (the offence) known by the parties to be a probable consequence of the common intention
What must the Crown prove in relation to S.66(1) ‘parties to ‘ offences?
The Crown must prove:
-The identity of the defendant
- An offence has been committed (and)
-The elements of S.66(1) have been proven
Where there is more than one offence committed the elements must be applied to each offence separately
When does someone have to have been involved in an offence to be convicted of a ‘parties’ offence?
To be considered a party someone must have participated before or during the commission of the offence and before the offence has been completed.
If the defendants participation has been after the completion of the offence they are considered an acsessory after the fact
What is considered a ‘principal party’ in ‘parties to’ offences?
The principal party is someone who satisfies the actus reas and mens rea requirements of the offence, there may be more than one principal offender in relation to the offence committed
In what circumstances may there be more than one ‘principal’ offender?
There are two circumstances under which there may be more than one ‘principal’ offender:
- When each offender separately satisfies the elements of the offence committed (two people actively assault a victim)
- Under S.66(1) each offender may separately satisfy some part of the actus reus of the offence where when their actions combined with the actions of the other person satisfy the complete actus reus requirement and both parties act with the necessary mens rea as well e.g one person prepares a poison and another administers it
What was held in R v Renata in regard to principal offenders?
R v Renata held that in the absence of being able to identify a principal offender, it is sufficient to prove that each party must have been either the principal offender or a party in one of the way outlined in S.66(1) CA1961
Who is considered a secondary offender and when must they have acted to be considered a secondary offender?
A secondary offender is someone who assists the principal offender either before or during the commission of an offence
To be a party to an offence a secondary offender must have acted earlier in time, (or) contemporaneous to the actions of the principal offender, whether they are contemporaneous is dependant on the circumstances of the case.
If the actions by the secondary party were part of the original planning then they are in fact a principal party (e.g providing a means of escape)
However a person cannot be convicted as a party to an offence that has already been completed, in this case they would be an accessory after the fact (e.g Matt Hunt getaway driver)
What are the necessary actions needed to be taken by someone to be considered a ‘party to’ an offence and in what circumstances?
Secondary parties are those whose assistance, abetment, incitement, counselling or procurement is sufficient under S.66(1) (b), (c) or (d) to make them liable as a party to the offence committed by the principal offender, despite not having committed the offence themselves
Define ‘Aid” in relation to ‘parties to’ offences
To aid is to assist in the commission of an offence, either physically or by giving advice or information.
It is not necessary that the person providing the aid be at the scene either during the commission of the offence.
It is also not necessary that principal offender be aware that they are being assisted by a secondary party , provided that the aid given does in some way assist the principal offender ( R v Larkins)
What was held in R v Larkins in relation to secondary parties and providing assistance?
R v Larkins held that whilst 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 with the intention to assist is insufficient
What are some examples of assistance offered by secondary parties?
-Keeping a lookout for someone during a burglary
-Providing a screw driver to someone breaking into a car
-Telling an associate when a neighbour is away so that they can commit a burglary
Define ‘Abets’
To ‘abet’ is to instigate, encourage or to urge another person to commit the offence. The ‘abetter’ is not required to be at the scene during the commission of the offence
What is a ‘legal duty to act’ and give an example
A legal duty to act is when some one is in a position where they have a legal duty to act and a right or power of control over the principal offender
e.g A Police sergeant that stands by and watches a subordinate assault an offender. The sergeant would be liable as a secondary party as they have a power of control of the subordinate and a lawful duty to intervene to prevent such incidents
Define ‘Incites’
To incite is to rouse, stir up, stimulate, animate, urge or spur on another person to commit an offence
Define ‘Counsels’
To counsel means to intentionally instigate the offence by advising a person on how best to commit an offence (or) planning the commission of an offence for another person
It is not necessary that the person counselling knows in detail about the offence intended to be committed, it is sufficient that they know that an offence is intended.
Define ‘Procures’
Procurement is setting out to see that something happens and taking appropriate steps to ensure that it does
Procurement requires that the secondary party deliberately causes the principal party to commit the offence (e.g. a woman hires a hit man to kill her husband and offers money or sex to pay him)
Procurement requires a greater connection between the the secondary party and the commission of the offence than aiding, abetting or inciting
What was held in R v Betts & Ridley in relation to S.66(2)
R v Betts & Ridley held that where no violence is contemplated and the principal offender uses violence in carrying out the common aim, a secondary offender, having taken no part in the violence, is not liable for the violence used
What is a question of fact in relation to S.66(2)
It is a question of fact for a jury to decide whether a defendant knew that their common aim with the other defendant(s) would probably result in another of the defendants committing a particular offence
Define an ‘Innocent Agent’
Innocent agents are sometimes used by offenders and are people who unaware of the significance of their actions in achieving the principal offenders intentions e.g a delivery driver delivering a letter containing anthrax
List the section and elements of ‘Accessory After the Fact’
Section 71 Crimes Act 1961
S. 71(1)
Any 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
What must the Crown prove in relation to accessory after the fact?
- That the person who is received, comforted, or assisted by the accessory is a party to an offence (primary or secondary)
- That at the time of the receiving , comforting or assisting that the person who was doing so (accessory) was aware that the other person was a party to an offence (primary or secondary)
- That the accessory received, comforted or assisted the other person or actively suppressed any evidence against that person
- That at the time of the receiving, comforting or assisting that the accessory’s purpose was to enable that person to escape after arrest or to avoid arrest or conviction
What was held in R v Crooks in relation to being an ‘accessory after the fact’?
R v Crooks held that 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 is insufficient
When must the knowledge of the offence be present in the mind of the person assisting (accessory)?
The accessory must be aware, AT THE TIME of the comforting, receiving, assisting or suppression of evidence that;
-The offence has been committed
AND
-The person they are assisting is a party to that offence
When their knowledge of these matter comes about as a result of offering assistance they are not liable as an accessory
What are the intent elements of ‘Accessory After the Fact’ offences?
The accessory must, receive, comfort, assist or suppress evidence with intent to;
Enable the offender to escape after arrest, avoid arrest or avoid conviction
List the section and elements of the offence of ‘Perjury’
S. 108 Crimes Act 1961
-A witness making any
-Assertion to any matter of fact, opinion, belief or knowledge
-In any judicial proceeding as part of their evidence under oath
-Known by that witness to be false (and)
-Being intended to mislead the tribunal
When is the offence of perjury complete?
The offence of perjury is complete at the time that the false evidence is given accompanied by the intent to mislead the tribunal
There is no defence to perjury if the witness later recants and informs the tribunal of the falsity
What are the elements and section for the offence of ‘Misleading Justice -Fabricating Evidence’
Misleading Justice - Fabricating Evidence
S.113 CA1961
Everyone is liable to 7 years imprisonment who:
-With intent to mislead any tribunal holding any judicial proceeding to which S.108 applies
-Fabricates evidence
-By any means other than perjury
`What section governs Opinion evidence by lay witnesses and what does it state?
Section 24 of the Evidence Act 2006 outlines that a witness may state an opinion in their evidence, 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
What is the section that governs evidence in relation to the offence of perjury and what does it state?
S. 112 Crimes Act 1961 states that no one shall be convicted of perjury, or of any other offence under S. 110 or S. 111 of this Act based on the evidence of one witness alone, unless the evidence of that witness is corroborated in some material particular by evidence implicating the defendant
What is the section and punishment for Conspiring to Defeat Justice
S. 116 Crimes Act 1961
Everyone is liable to a term not exceeding 7 yrs imprisonment who conspires to, obstruct, prevent, pervert or defeat the course of justice
What are some practical examples of attempting to conspire to defeat justice?
-Preventing a witness from testifying
-Wilfully going absent as a witness
-Threatening or bribing witnesses
-Concealing the fact a offence has been committed
-Intentionally giving Police false information
-Arranging a false alibi
-Assisting an offender to leave the country
-Threatening or bribing jury members
When may a prosecution for the offence of Perjury begin?
A prosecution for perjury may only begin when it is recommended to do so by the Courts or you are directed to do so by the Commissioner of Police
List the section and elements of the offence of ‘receiving’
S. 246(1) CA 1961
-Everyone commits the offence of receiving who:
-Receives any property
-Stolen (or) obtained by any other offence
-Knowing that the property is stolen or so obtained (OR)
-Is reckless as to whether it is stolen or otherwise obtained
When is the offence of receiving complete and what section relates?
S. 246(3) CA 1961
The offence of receiving is complete 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
What must the Crown prove in relation to the offence of receiving?
The Crown must prove:
-There must be property which has been stolen or otherwise obtained by a crime
-That the suspect has received the property from someone (not themselves)
-That the suspect has received the goods knowing (or) being reckless to the fact that the property is stolen or otherwise obtained
What was held in R v Cox in relation to possession?
R v Cox held that possession involves two elements, the physical, being actual or potential physical custody or control and the mental, being an awareness by the accused that the substance is in their control and an intention to exercise that possession
Cullen v R outlines the four elements of possession in relation to receiving, what are they?
Cullen v R held that the four elements of possession for receiving are:
- Awareness that the item is where it is
- Awareness that the item is stolen
- Actual or potential control over the item
- An intention to exercise that actual or potential control
In what circumstances can a receiver still be in control of property when they are not actually in possession of it and why?
Control over property can still be exercised by a receiver when the property is in the possession of the receivers agent or servant (including innocent agents), as long as there is an intention to control that property on the part of the receiver
When is it legally impossible to commit the offence of receiving and what is the relevant case law?
R v Donnelly held that 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
Define ‘property’
Property is any real or personal property in which any person or estate has any right to or interest in
Define the concepts of ‘title’ and ‘voidable title’
Title is the legal right to the property, a claim of right to possession of that thing
Voidable title is when title has been obtained deception and is voidable by the seller
Explain how ‘title’ can be voided
Title can be voided by:
-Complaining to the Police
-Communicating directly the deceiver
-Taking all reasonable steps to bring the deception to the deceivers notice
When must a receiver have guilty knowledge of the goods being stolen or otherwise obtained and what is the relevant case law?
R v Kennedy held that the receiver must have guilty knowledge that the thing has been stolen or dishonestly obtained at the time of the receiving
What are some practical examples of situation which may be used as evidence of people having guilt knowledge?
-The receiving of goods in an unusual place, time or way
-Absence of packaging
-Absence of receipt
-Purchasing goods at a price significantly under their real value
What is the doctrine of recent possession?
The doctrine of recent possession is the presumption that, where the defendant acquired possession willingly, the proof that the defendant is in possession of the stolen goods, in the absence of a reasonable explanation may be evidence enough to justify the belief that the defendant is either the thief themselves or the receiver.
In essence the doctrine of recent possession allows for for proof of theft or receiving by way of circumstantial evidence
What defines whether possession is defined a ‘recent’?
Whether possession is recent is dependant on:
-The nature of the property stolen
-The surrounding circumstances
What was held in R v Lucinsky in relation to receiving stolen types of stolen property?
R v Lucinsky held that the property being received must be the property stolen or otherwise illegally obtained, it cannot be some other item, for which the stolen property has been exchanged
What does S.243(1) say in relation to concealing property?
S.243(1) states that to ‘conceal’ in relation to any property means to conceal or disguise the property and includes without limitation:
a) to convert the property from one form to another
b) to conceal or disguise the nature, source, location, disposition, or ownership of the property or of any interest in the property
Define the term to ‘deal with’ in relation to Money Laundering offences
S. 243(1) CA1961 defines to ‘Deal With’ as:
To deal with in relation to property means to deal with the property in any manner and by any means, and incvludes without limitation:
a) To dispose of the property, whether by sale, purchase, gift or otherwise
b) To transfer possession of the property
c) To bring the property into New Zealand
d) To remove the property from New Zealand
Define ‘Interest’ as per S.243(1) CA1961 in relation to money laundering offences
Interest in relation to to property means:
a) A legal or equitable estate or interest in the property (OR)
b) A right, power or privilege in connection with the property
Define what ‘proceeds’ from an offence are as per S.243(1) CA1961 in relation to money laundering offences
Proceeds from an offence are any property that is derived or realised, directly or indirectly, by any person from the commission of an offence
Define ‘Money Laundering’
Money laundering is the process of dealing with the proceeds of criminal activity in such a way, as to make the proceeds appear to have been legitimately acquired
What are the elements and relevant section for the offence of Money Laundering?
S.243(2) CA1961
-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 must the Crown prove in relation to Money Laundering offences?
The Crown must prove:
- That the offender has dealt with the property (or) assisted with such dealing
- The source of the property is from the proceeds of an offence punishable by 5 years or more imprison
- That the offender had knowledge or a belief (at the time of the dealing) that the property proceeded form such an offence (OR)
- Were reckless as to whether it was the proceeds from such an offence
- There was an intention to conceal the property
What is the purpose of the Criminal Proceeds Recovery Act 2009
The Criminal Proceeds Act 2009 provides a regime for the forfeiture of property that :
a) Has been derived directly (or) indirectly from significant criminal activity
OR
b) Represents the value of a persons unlawfully derived income
What is the definition and relevant section for ‘Tainted Property’
Tainted Property
S.5 Criminal Proceeds Act 2009
a)Tainted property is 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 AND
b) includes any property that has been acquired as a result of, or directly or indirectly derived from, at least one or more significant criminal activity’s
What is the definition and relevant section for ‘Significant Criminal Activity”
Significant Criminal Activity
S.6 Criminal Proceeds Act 2009
-Significant criminal activity is any offence punishable by 5 or more years imprisonment
(or)
-From which property, proceeds or benefits of a value of $30,000 or more have been acquired directly or indirectly
What are some points that should be considered when interviewing suspects in relation to a money laundering offence?
When interviewing someone in relation to a money laundering offence the following points should be covered:
-Suspects legitimate income
-Suspects illegitimate income
-Suspects expenditure
-Suspects assets
-Suspects liabilities
