CIB 006 Association Flashcards
Liability: conspiring to commit offence
310(1) CA 61
- conspires with
- any person
- to commit any offence
OR - to do/omit an act in any part of the world
- of which the doing of act or omission in NZ would be an offence
A conspiracy doesn’t only rely on the intent of 2 or more people to commit an offence. What else does it rely on the subjects to do to be complete?
Agreement to do an unlawful act or a lawful act by unlawful means
Caselaw: MULCAHY v R?
A conspiracy consists not merely in intention of 2 or more but in agreement of 2 or more to do unlawful act/lawful act by unlawful means.
When 2 agree to carry it out the very plot is an act itself
What is an example of an omission (failure to act)?
A security guard fails to lock a door
When is the offence of conspiracy complete?
Complete on the agreement being made with the required intent. No further progression towards completion required.
Caselaw: R v SANDERS?
Conspiracy does not end with the making of the agreement, the conspiratorial agreement continues until its completion or abandonment
What is the mens rea of a conspiracy?
- intention of those involved to agree
- intention course conduct be pursued
What is the actus reus of a conspiracy?
Agreement between 2 or more people to put common design into effect
Caselaw: R v WHITE?
If prove suspect conspired with other parties whose ID is unknown, that suspect can still be convicted even if ID of others never established
Section 67 of crimes act 1961?
(Conspiracy related)
A person is capable of conspiring with their spouse
Eg husband and myy wiiiiiiife…..
Define an act?
Take action/do something to bring about a particular result
Define omission?
excluding or leaving out someone or something.
failure to fulfil a moral or legal obligation
If a conspiracy is entered into overseas what is required under common law for NZ to have jurisdiction?
- later physically present in NZ
- act in continuance of conspiracy
Conspirators should be jointly charged, what is the exception to the hearsay rule?
Anything a conspirator says or does to further the common purpose is admissible against the others involved
What 4 points should be covered when interviewing conspiracy suspects?
- agreement - to commit offence
- acts - done written/said/ to further common purpose
- intent - persons involved
- ID - of all
Liability: attempt to commit offence?
Section 72(1) CA61
- having an intent to commit an offence
- does or omits an act
- for purpose of accomploshing their object
What are the three elements of an attempt established in case law?
Mens rea - intent commit offence
Actus reus - did something to achieve
Proximity - act/omission sufficiently close
Caselaw: R v RING
Offenders intent was to steal property by putting his hand into the victims pocket but it was empty. Despite this he was able to be convicted of attempted theft because the intent to steal was present in his mind and demonstrated by his actions
Examples of acts that may constitute an attempt?
LEPU
Lie in wait
Entice victim to scene
Possess materials to commit crime
Unlawfully entering a structure
Caselaw: R v HARPUR
Court may have regard to conduct in its entirety and cumulatively up to point when conduct in question stops. What remains to be done is always relevant though not determinative
Caselaw: HIGGINS v POLICE
If Plants being cultivated as cannabis aren’t cannabis it is legally possible to cultivate such a plant. Accordingly it’s possible to commit the offence of attempting to cultivate cannabis
Caselaw: Police v JAY
A man bought hedge clippings believing they were cannabis
Caselaw: R v DONNELLY
(Stolen property RTO…)
Where stolen property RTO, not offence to subsequently receive it even though receiver may know property previously stolen
Once an act is complete that is sufficiently proximate the defendant has no defence to an attempts charge because they were……? (3 things)
- prevented by outside agent
- failure due to ineptitude
- prevented by intervening event making it physically impossible
What is the function of the judge and jury in attempts cases?
Judge:
Must decide whether defendant left prep stage and trying to commit full offence
Jury:
If crown proved beyond reasonable doubt:
- an attempt
- defs acts sufficiently close full offence
- intended to commit offence
You are not able to charge someone with an attempt in 3 scenarios?
- criminality depends on recklessness
- attempt included in definition of offence
- offence is such act has to be completed in order for offence to exist at all
Liability: parties to offence
66(1)
Section 66(1) CA 61
Everyone party to and guilty of offence who:
a) actually commits offence
b) does/omits act for purpose of aiding person to commit offence
c) abets person in commission offence
d) ICP person to commit offence
Liability: parties to? 66(2)?
-2 or more ppl form common intention for unlawful purpose and to assist each other
- each is a party to every offence committed by any 1 of them in the common purpose
- if the commission of that offence was known to be probable consequence
In cases of charging a person with party to offence you must prove 3 things?
ID
An offence successfully committed
Elements S66(1) satisfied
When must participation occur to be considered a party to offence?
Participation occurs before or during completion.
Caselaw: R v PENE
A party must intentionally help or encourage. Insufficient if reckless as to whether the principal was helped or encouraged
When is a principal party/offender liable under S66(1)(a)?
Where he or she personally satisfies the actus reus and mens rea requirements of the offence
What is a secondary party?
People whose assistance is sufficient under S66(1)(b)(c)(d) to make them liable due to their participation in offence committed by principal
Caselaw: R v RENATA
Where principal offender can’t be ID”d, it’s sufficient to prove each individual accused must have been either the principal or a party in one of the ways contemplated by S66(1)
To aid means to…..?
Assist in the commission of the offence, either physically or by giving advice or information
Examples of assistance?
“KPT”
- Keeping lookout
- Providing a tool to break into car
- Telling associate neighbour is away so they can do burg
Caselaw: LARKINS v POLICE
unnecessary principal aware they being assisted there must be proof of actual assistance
What does abet mean?
“IEU”
instigate, encourage or urge to commit offence
Caselaw: ASHTON v POLICE
An eg of a secondary party owing a legal duty to a 3rd person or to the general public is a person teaching another to drive. That person is under a legal duty to take reasonable precautions because he is deemed to be in charge of a dangerous thing
Caselaw: R v RUSSELL
Court held accused morally bound take active steps to save his children. By his deliberate abstention and encouragement by his presence to his wife’s act he became an aider and abettor, thus a secondary offender
Define incite?
“SSSR”
Stir up, stimulate, spur, rouse
Define counsels?
Intentionally instigate offence by advising how to commit offence
Define procures?
taking steps to ensure something happens
Caselaw: R v BETTS and RIDLEY?
Offence where no violence is contemplated and principal offender carrying out common aim uses violence, a secondary offender Taking no physical part in it would not be held liable for violence used
What is the subjective appreciation of “known to be a probably consequence under parties to S66(2)?
must actually foresee the likelihood co-offender will commit another offence (B) when committing original offence. (A)
Put simply:
Knew substantial or real risk that offence(B) could well happen
What is an innocent agent?
Someone unaware of the significance of their actions
Investigative procedure: parties to:
Involvement of parties may be established by?
Reconstruction
Admissions by principal offender
Secondary offender admissions
Witness observations
Receiving info others involved
Summarise S66(1) and what situations this deals with?
Situ where ppl involved are party to intended offence
Summarise S66(2)and what situations this deals with?
Situ where ppl involved are party to intended offence and party to secondary offence committed pursuing intended one
What was held in Caselaw R v RUSSELL?
Defendant charged with parties to murder.
Argument with wife and she drowned her and her children while he watched.
Held he was morally bound to take active steps to save his children, by doing nothing became and aider and abettor thus a secondary offender
Liability: accessory after fact
Section 71 CA 61
- knowing any person been party to offence
- RCA that person
OR - Tampers with/actively suppresses any evidence against him
- in order to enable him to escape after arrest or avoid arrest/conviction
Caselaw R vCROOKS
Knowledge means actual knowledge or belief and no real doubt that the person assisted was a party to the relevant offence, suspicion of involvement is not enough
At time of assistance being given an accessory must have knowledge that…..?
(2 things)
1- An offence has been committed
2- Person they assisting was party to that offence
Caselaw: R v BRIGGS
Knowledge can be inferred from wilful blindness or deliberate abstention from making inquiries that would confirm the suspected truth
An accessory must do an intentional act for the purpose of assisting the person to evade justice in one of 3 ways. What are those 3 ways to evade justice?
Escape after K9
Avoid K9
Avoid conviction
There are 5 intentional acts an accessory can commit, what are they?
RCA - TA
Receives
Comforts
Assists
Tampers with evidence
Actively suppress evidence
Caselaw: R v MANE
TBC an accessory ATF, the acts done must be after completion of offence
Give an example of tampering with evidence?
Modifying an offenders telephone records to conceal communications that may implicate them
Give an example of actively suppressing evidence?
Bloodied clothing repeatedly washed to remove evidence or it’s set alight to destroy it
Give some examples of RCA in accessory after fact instances?
Receives= hiding escapee in basement
Comforts= providing food/clothing/accomodation
Assists= providing transport or acting as a lookout
Liability: perjury
Section 108 CA 61
1- assertion to matter of fact, opinion, belief or knowledge
2- made by a witness in judicial proceeding
3- as part of their evidence, on oath in court or affidavit
4- that assertion being known to the witness to be false
5- and intended to mislead the tribunal holding the proceeding
When is the offence of perjury complete?
At the time the case evidence is given accompanied by intention to mislead the tribunal
What is the justification of corroboration being required in perjury cases?
To protect witnesses from vexatious accusations of lying on oath. Making it too easy to prosecute for perjury would ultimately discourage ppl from giving evidence
Examples of conspiring or attempting to mislead justice?
- Prevent witness from testifying
- Threaten/bribe a witness
- false info to police to obstruct inquiries
- supplying false info to PO”s
- arranging false alibi
What are the only 2 scenarios in which you may commence an investigation into perjury?
- recommended by the courts
- directed to do so by the commissioner
Complaints of perjury can arise in 2 ways, what are those ways?
- individual may complain that someone has perjured themselves
- judge may state a court recommendation that police undertake inquiries into the evidence given
What are the 2 main points to cover when interviewing a suspect in relation to perjury?
- whether the suspect knew their assertion was false
- whether they intended to mislead the court in the proceeding
Liability: Receiving
246 (1) CA 61
- receives
- any property stolen OR obtained by any imprisonable offence
- knowing that property to have been stolen or so obtained
OR - being reckless as to whether the property had been stolen or so obtained
When is receiving complete?
If guilty knowledge exists at time of receiving = offence complete
Caselaw: R v COX (possession)
Possession involves 2 elements, 1st the physical element is actual or potential physics custody/control. 2nd the mental
Element is combination of knowledge and intent, knowledge substance in possession and intent to exercise possession
Caselaw: CULLEN v R
4 elements for possession for receiving:
1- aware where item is
2- aware item stolen
3- actual/potential control item
4- intention exercise control over item
Where property is located at a place in which the receiver has control then the prosecution must prove the receiver did 1 of 2 things?
Arranged for the property to be delivered there
OR
On discovering the property, they intentionally exercised control over it
Caselaw: R v DONNELLY
Where stolen property is RTO or legal title obtained, it is not an offence to subsequently receive it even if they know it was previously stolen
Caselaw: R v LUCINSKY
property received must be property stolen not some other item which has been exchanged or are proceeds.
Context of Caselaw:
Thief steals $100 in $20 notes, receiver gets one of those notes. That note is some of the stolen property.
Same situation but original thief changes stolen $20 notes for 2 crisp fiddy dollar notes and gives a $50 to the receiver. No offence committed as the fiddy isn’t the property stolen……
Section 49 evidence act 2006 - conviction to be regarded as conclusive proof of guilt. How can this be applied in receiving prosecutions?
You are able to rely on the conviction of the thief that the property was stolen and satisfy one of the elements of receiving
What is title?
Legal right/claim to possession/ownership of property
Caselaw: R v KENNEDY
Guilty knowledge thing stolen/dishonestly obtained must exist at time of receiving
Caselaw: CAMERON v R
Recognising real possibility actions would bring a proscribed result and actions were unreasonable
The circumstances in which property received may alone be sufficient to prove property was stolen and an inference of guilty knowledge.
Common examples of circumstances in receiving cases to show obvious guilty knowledge and property stolen are?
- possession recently stolen property
- nature property (type/value/quantity)
- purchase at gross undervalue
- secrecy in receiving property
- receipt of goods at unusual time/place
- lack original packaging
What does the doctrine of recent possession rule allow for?
The proof of theft/receiving circumstantially where person found with recently stolen property soon after theft.
Inference may be drawn person either stole or received the property
Where items are stolen to order for someone and that someone receives the stolen item from the thief, what offence is the “receiver” liable for?
Should be charged as party to principal offence of theft- S66(1) CA 61
Explain 2 ways in which possession of property can be established in a charge of receiving?
Showing property is:
- in immediate custody of receiver OR
- at a location the receiver has control of
What are the three phases of the money laundering cycle?
“PLI”
Placement
Layering
Integration
Describe the 3 layers of the money laundering cycle?
“PLI”
Placement = cash enters the financial system
Layering= money is involved in a number of transactions
Integration= money mixed with lawful funds back into economy with appearance of legitimacy
What is money laundering?
dealing with proceeds of crime to appear legit
What is tainted property?
Property wholly or partly been acquired as a result of significant criminal activity OR
Directly or indirectly derived from significant criminal activity
What must the term of imprisonment be for a qualifying instrument forfeiture offence?
5 years or more
What is significant criminal activity?
Offence punishable by 5 years +
Offending in which property or benefits is to a value of $30,000 or more
What is the test for the high court in making a profit forfeiture order and what must it be satisfied of?
On the balance of probabilities:
Respondent unlawfully benefited from significant criminal activity within relevant period of time
Respondent has interests in property
Before preparing an application for forfeiture of instruments of crime there needs to be an assessment process on the instruments/assets. This assessment process of the asset/s is conducted to determine……?
Value of asset
Equity in asset
Any 3rd party interest in asset
Cost of action re the asset
As OC an affidavit will be required for a forfeiture of assets application, what should this outline?
OC details
Offender details
Charges
Admissions during interview
Prior convictions
Search warrant - describe the nature of the offending discovered at the asset. If high value asset offending will need to be commercial
Property description
Evidence showing offender owns or has custody/control
Caselaw: R v GIBBS
Acts done by accessory must have helped other person to evade justice
Caselaw: R v LEVY
Held LEVY done a deliberate act to evidence against offender for purpose of assisting to evade justice
Def: witness
Person who gives evidence and is able to be cross examined
Def: assertion
Something declared
Stated positively
Support = none
Def: a fact
A thing done, or an actual occurrence/event
Def: opinion?
Statement opinion tends to
prove/disprove a fact
Def: belief?
subjective feeling
validity
idea/facts
Def: knowledge?
Knowing or correctly believing. Belief must be correct.
Def: oath?
Declaration before person with authority to administer and is a religious belief
Def: affirmation?
declaration before person with authority to administer
Def: declaration?
Witness under 12 makes promise to tell truth
