Associaton Offences Flashcards
When is an act physically or factually impossible.
An act is physically or factually impossible if it is an offence but the suspect is unable to commit it due to ineptitude, insufficient means, interruption or any other circumstances beyond his control.
R v Ring
The offenders intent was to steal property by putting his hand in the pocket of the victim. Unbeknown to the offender the pocket was empty. Despite this he could be convicted of attempted theft because the intent to steal was present by his mind and demonstrated by his actions.
Police V Jay
A man bought hedge clippings believing they were cannabis. Legally possible however physically impossible. Offender can be convicted of an attempt as he believed the hedge clippings were cannabis and intended to buy cannabis.
Police V Higgins
Where plants being cultivated as cannabis were 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.
An innocent agent.
An innocent agent carries no liability and is not capable of conviction as a secondary party
The mens Rea, mental intent necessary for conspiracy.
The offender’s mental intent must be to commit the full offence. Where this intent does not exist, no crime has been committed.
Three conditions must be satisfied in an attempt
Case law has established the following three conditions that must apply for an attempt conviction to succeed:
(1) Intent (mens rea)
(2) Act (actus reus)
(3) Proximity (sufficiently close)
The suspect behaviour must satisfy all three conditions at a minimum to constitute an attempt. Additionally there is the requirement that it must be legally possible to commit the offence in the circumstances. A person can be convicted of an offence that was physically impossible to commit.
Acts must be sufficiently proximate to the full offence.
Generally, to prove an attempt the accused must have done or omitted to do some act that is sufficiently proximate to the full offence.
Effectively the accused must have started to commit the full offence and have gone beyond the phase of mere preparation. This is the ‘all but’ rule
Police V Larkins
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 intended to have that effect is insufficient.
Absence of knowledge by the principal that is being assisted removes a common foundation for finding of actual assistance, namely that the principal was unable to proceed with his enterprise with the additional confidence gained because his accomplice was on the lookout for unwanted intervention.
Fabricating Evidence S113 CA1961
7 years
With intent to mislead any tribunal holding any judicial proceeding to which section 108 applies
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.
When considering a principal charge of money laundering under section 243(2), proof of the following four elements is required
A. 1. Dealing with property or assisting in such dealing
B. The source of the property being the proceeds of an offence punishable by 5 years imprisonment or more committed by another person.
C. 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
D. An intention to conceal the property.
Affidavit required for application.
Such an application will require a straight forward affidavit from the officer in charge of the file outlining:
Officer in Charge (details)
Offender (details)
(charges)
(criminal convictions)
Search Warrant – describe the nature of the offending discovered at or involving the property (asset) concerned.
*Note, where the value of the asset is high you need to demonstrate that the offending was at more of a commercial level.
Outline any admissions made during the interview
Property: describe property sought to be restrained and its value
Show that the offender owns, has custody or control over the property
What are main points in R v Renata
Each offender satisfies the ingredients of the offence committed.
Each offender separately satisfies the actus reus
Interviewing witness and suspects in a Conspiracy Investigation
Witnesses: Interview and obtain statements form witnesses covering:
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
Suspects:
Interview the people concerned and obtain statements to establish:
The existence of the agreement to commit the 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 the people concerned where possible
Whether anything was written, said or done to further the common purpose.
Criminal Recovery Act 2009
Tainted Property
Criminal Recovery Act 2009
Tainted Property
a) 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
(iii) AND
(b) 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 those activities is a significant criminal liability.
Unlawfully Criminal Recovery Act 2009
Unlawful benefit
A person has…
Unlawfully Criminal Recovery Act 2009
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 that person was involved in the 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.
Receiving – examples of guilty knowledge
Receipt of goods in an unusual place
Receipt of goods at an unusual time
Receipt of goods in an unusual way
Absence of a receipt where a receipt would normally be issued
Lack of packaging
Purchase at gross undervalue
Withdrawing from the agreement –Conspiracy
A person withdrawing from the agreement is still guilty of conspiracy as are those who become party to the agreement after it has been made.
However a person can effectively withdraw before the actual agreement is made.
When a conspiracy ends – R v Sanders – Conspiracy
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.
Admissibility of evidence
The intention, of the parties involved, to actually carry out the offence is an essential element to a conspiracy charge. There must be a common aim to commit some offence and an intention that the aim is to be effected.
Anything a conspirator or party to a joint charge says or does to further the common purpose is admissible against the others involved, this being an exception to the hearsay rule and as such conspirators should be jointly charged.
However, this does not include explanations made after the common purpose is carried out. Then, the explanation is evidence only against the person making it.
Suspects – Investigative Procedure – Conspiracy
Interview the people concerned, and obtain statements to establish:
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 people concerned where possible
Whether anything was written, said or done to further the common purpose.
Charging – Conspiracy
Laying both a substantive charge and a related conspiracy charge is often undesirable because: (Conspiracy charge not laid when substantive charge can be proved)
The evidence admissible only 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, ie the jury may assume the accused’s 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. This means that each indictment or information may be heard at separate trials.
What must be proved – Attempts to commit an offence
In each case of attempt, you must prove:
The identity of the suspects, and
That they intended to commit an offence, and
They did, or omitted to do, something to achieve that end
Several acts together may constitute an attempt - Attempts to commit an offence.
Several acts together may constitute an attempt. ‘his actions need not be considered in isolation; sufficient evidence of his intent was available from the events leading up to that point.’
The test for proximity - Attempts to commit an offence.
The following 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?
Example of legally impossible act - Attempts to commit an offence
R v Donnelly
R v Donnelly
Where stolen property has been returned to the owner or legal title to any such property ha been acquired by an person, it is not an offence to subsequently receive it, even though the receive may know that the property had previously been stolen or dishonestly obtained.
Act completed sufficiently proximate to intended offence - Attempts to commit an offence
Once the acts are sufficiently proximate, the accused has no defence that they:
Were prevented by some outside agent from doing something that was necessary to complete the offence; eg interruption from police
Failed to complete the fill offence due to ineptitude, inefficiency or insufficient means, eg insufficient explosive to blow apart a safe
Were prevented from committing the crime because an intervening event made it physically impossible, eg removal of property before intended theft
Unable to charge with attempt - Attempts to commit an offence – Prosecution.
You are not able to charge someone with an attempt to commit a crime where:
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. EG, demanding with menaces; it is the demand accompanied by the menace that constitutes the offence
Parties to offences
Section 66, Crimes Act 1961
(1) Everyone is a party to and guilty of 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
Multiple Offenders - Parties to offences
R v Renata
R v Renata
Three offenders beat the victim to death in the car park of a tavern. The prosecution was unable to establish which blow was the fatal one or which of the 3 offenders administered it.
‘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 in s66(1)’
Secondary Offenders - Parties to offences
Those who assist in the principal offender(s) either before or during the commission of an offence are
considered secondary offenders and thus their liability generally lies within the scope of s66(1)(b), (c) or (d)
To be party to an offence, the acts of the secondary offender must be earlier in the time or contemporaneous with the acts of the principal offender(s). Whether the acts are contemporaneous is dependent on the circumstances of each case.
Where the act was part of the original planning, eg providing a means of escape, then the person who
committed this act would be deemed to be a principal party.
However, a person cannot be convicted as a party for an offence that is already complete. In such a case they would be liable as an accessory
Actual proof of assistance is required - Parties to offences
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
Legal Duty - Parties to offences.
An army sergeant who watches as a subordinate assaults another person and does nothing to prevent it
would be liable as a secondary party to the assault. This is because the sergeant has a power of control over the subordinate and a lawful duty to prevent such incidents and intervene.
Incites - Parties to offences.
To incite means to ‘rouse, stir up, stimulate, animate, urge or spur on a person to commit the offence.
What needs to be proven – Accessory after the fact
The ingredients of the offence of accessory after the fact are:
That the person (person A), who is received, comforted or assisted by the accessory (person B) is a party (principal or secondary party) to an offence that has been committed
That, at the time of receiving, comforting or assisting that person (person A), the accessory (person B) knows that person (person A) was a party to the offence
That the accessory (person B) received, comforted or assisted that person (person A) or tampered with or actively suppressed any evidence against that person (person A)
That, at the time of the receiving, comforting or assisting etc, the accessory’s (person B) purpose was to enable that person (person A) to escape after arrest or to avoid arrest or conviction.
Spouse/civil union partner exceptions - Accessory after the fact.
Under S71(2), you cannot be charged with being an accessory after the fact to your spouse (legally married), or your spouse and another party (this when they work in concert). This is the same for those in a civil union, but not a de facto relationship.
Knowing any person to have been a party to an offence - Accessory after the fact
‘’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 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.
Knowledge must exist at the time assistance given - Accessory after the fact
Must Prove
At the time of the assistance being given, an accessory must process the knowledge that:
An offence has been committed, and
The person they are assisting was a party (principal or secondary) to that offence
Where this knowledge comes about following the rendering of the assistance they are not liable as an
accessory
Evidence of perjury, false oath, or false statement – Misleading Justice
Section 112, CA1961 – No one shall be convicted of perjury, or of any offence against section 110 or section 111 of this Act, on the evidence of one witness only, unless the evidence of that witness is corroborated in some material particular by evidence implicating the accused.
Fabricating evidence - Misleading Justice
7 years
With intent to mislead any tribunal holding any judicial proceeding to which section 108 applies
Fabricates evidence by any means other than perjury.
Ingredients of Perjury – Misleading Justice
The ingredients of the offence of perjury are:
A witness making any
Assertion as to any matter of fact, opinion, belief, or knowledge
In any judicial proceeding
Forming part of that witness’s evidence on oath
Known by that witness to be false, and
Intended to mislead the tribunal
Opinion evidence by Lay witnesses
Section 24, Evidence Act 2006 – 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.
Intention to mislead - Misleading Justice.
The offence of perjury is complete at the time the false evidence is given accompanied by an intention to mislead the tribunal.
There is no defence where the witness later recants and informs the tribunal of the falsity of the earlier evidence given.
Examples of misleading justice - Misleading Justice
Examples of conspiring or attempting to mislead justice within sections 116 and 117 may include:
Preventing a witness from testifying
Wilfully going absent as a witness
Threatening or bribing witnesses
Concealing the fact a crime has been committed
Intentionally giving police false information to obstruct their inquiries
Supplying false information to probation officers
Assisting a wanted person to leave the country
Arranging a false alibi
Threatening or bribing jury members
The ‘’act of receiving’’ – Receiving
The act of receiving requires the satisfaction of three elements:
There must be property which has been stolen or has been obtained by a crime
The accused must have ‘received’ that property , which requires that the receiving must be from another (you cannot receive from yourself)
The accused must receive that property in the knowledge that it has been stolen or illegally
obtained, or being reckless as to that possibility
When the act is complete – Receiving
The act of receiving any property stolen or obtained by any other crime 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.
Control over property – Receiving.
Control over property may still be exercised by a receiver when the property is in the possession of the
receiver’s agent or servant – control must be intentional
Doctrine of recent possession - Receiving
It is the presumption that, where the defendant acquired possession willingly, the proof of possession by the defendant of property recently stolen in, in the absence of a satisfactory explanation, evidence to justify a belief and finding that the possessor is either the thief or receiver, or has committed some other offence associated with the theft of the property, eg burglary or robbery.
Money Laundering – Money Laundering and CPA
Section 243 CA1961
(1) For the purposes of this section and sections 244 and 245 –
Conceal: in relation to property, means to conceal or disguise the property, and includes without limitations:
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
Deal with: in relation to property, means to deal with the property in any manner and by any means, and includes, without limitations:
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 NZ
d) To remove the property from NZ
Definition of interest – Money Laundering and CPA.
A legal or equitable estate or interest in the property; or
A right, power, or privilege in connection with the property
What is required to be proved – Money laundering and CPA
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
Tainted Property – Criminal proceeds definitions
Section 5, Criminal Proceeds (recovery) Act 2009
Tainted property
(a) 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, and
(b) Includes any property that has been acquired as a result of, or directly or indirectly derived from, more that 1 activity if at least 1 of those activities is a significant criminal activity
Unlawfully benefited from criminal activity - Criminal proceeds definitions
Section 7, Criminal Proceeds (recovery) Act 2009
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 that person undertook or was involved in the significant criminal activity)
Profit forfeiture order - Criminal proceeds definitions
The High Court must make a profit forfeiture order if it is satisfied on the balance of probabilities that –
Section 55, CPA 2009
a) The respondent has unlawfully benefited from significant criminal activity within the relevant period of criminal activity; and
b) The respondent has interests in property
Unlawfully benefited from significant criminal activity - Criminal proceeds definitions
Pulman v Commissioner of Police
The Court held that the purpose of the forfeiture regime was not only to prevent the ability of a person to actually profit from undertaking significant criminal activity but also the ‘chance’ that they may be able to do so and also to deter significant criminal activity
Affidavit required for application
Such an application will require a straight forward affidavit from the officer in charge of the file outlining:
Officer in charge
- details
Offender(s)
- Details
- Charges
- Criminal convictions
Search warrant – describe the nature of the offending discovered at or involving the property (asset) concerned. Note: where the value of the asset is high you need to demonstrate that the offending was at more of a commercial level
Admissions made during interviews(s)
Property
- Describe property sought to be restrained and its value
- Show that offender owns, has custody or control
Restraining Orders – CPA.
Only members of Asset Recovery Units may apply for restraining orders, assets forfeiture orders and profit orders
Suspect Interview – CPA
When interviewing a suspect about money laundering or where proceeds recovery action is to be considered, consider the following points:
Suspect’s legitimate income
Suspects illegitimate income
Expenditure
Assets
Liabilities
Acquisition of financial records, from banks, financial companies, loan sharks, family trust
Clarification of documentary evidence located, as per above documents
Abets etc
Abets - to instigate or encourage, urge another person to commit an offence
Aids - Assist in the commission of the offence either physically or offering advice
Incites - to rouse, stir up, stimulate or animate or spur on or urge on a person to commit an offence
Counsels - Intentionally instigate the offence by advising or planning for another person
66 (2) - Parties
Where 2 or more persons form common intention to prosecute any lawful 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 prosecution of the common purpose.
Lay witness - opinion evidence
A witness may state an opinion in evidence in a proceeding if that opinion is necessary to enable the witness to communicate of the fact finder to understand what the witness saw, heard or otherwise perceived eg, apparent age, identity, speed, physical and emotional state of people, condition of articles (worn, new, used) and whether person under the influence of alcohol.
Three matters to prove for attempts
Intent (mens rea) to commit an offence
Act (actus reus) that they did or omitted to do something to achieve that end
Proximate - that their act or omission was sufficiently close
Serious Offence
Means an offence punishable by imprisonment for a term of 5 years or more and includes any act, wherever committed, that if committed in NZ would constitute an offence punishable by imprisonment for a term of 5 years or more.
What must prosecutor prove against receiver having control over stolen property
The receiver arranged for the property to be delivered there, or alternatively that upon discovering the property he or she internationally exercised control over it.
Mental Intent - Conspiracy
An intention of those involved to agree, and
A intention that the relevant course of conduct should be pursued by those party to the agreement
Intent to commit the full offence
Acts must be sufficenitly proximate to the full offence
The accused must have done or omitted to do an act that is sufficiently proximate to the full offence. Started to commit the offence and has gone beyond preparation (all but rule)
