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CIB Modules 22/23 - Mwby42 > CIB 006 Association > Flashcards

CIB 006 Association Flashcards

1
Q

Liability: conspiring to commit offence

A

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
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2
Q

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?

A

Agreement to do an unlawful act or a lawful act by unlawful means

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3
Q

Caselaw: MULCAHY v R?

A

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

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4
Q

What is an example of an omission (failure to act)?

A

A security guard fails to lock a door

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5
Q

When is the offence of conspiracy complete?

A

Complete on the agreement being made with the required intent. No further progression towards completion required.

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6
Q

Caselaw: R v SANDERS?

A

Conspiracy does not end with the making of the agreement, the conspiratorial agreement continues until its completion or abandonment

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7
Q

What is the mens rea of a conspiracy?

A
  • intention of those involved to agree
  • intention course conduct be pursued
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8
Q

What is the actus reus of a conspiracy?

A

Agreement between 2 or more people to put common design into effect

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9
Q

Caselaw: R v WHITE?

A

If prove suspect conspired with other parties whose ID is unknown, that suspect can still be convicted even if ID of others never established

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10
Q

Section 67 of crimes act 1961?
(Conspiracy related)

A

A person is capable of conspiring with their spouse

Eg husband and myy wiiiiiiife…..

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11
Q

Define an act?

A

Take action/do something to bring about a particular result

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12
Q

Define omission?

A

excluding or leaving out someone or something.

failure to fulfil a moral or legal obligation

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13
Q

If a conspiracy is entered into overseas what is required under common law for NZ to have jurisdiction?

A
  • later physically present in NZ
  • act in continuance of conspiracy
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14
Q

Conspirators should be jointly charged, what is the exception to the hearsay rule?

A

Anything a conspirator says or does to further the common purpose is admissible against the others involved

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15
Q

What 4 points should be covered when interviewing conspiracy suspects?

A
  • agreement - to commit offence
  • acts - done written/said/ to further common purpose
  • intent - persons involved
  • ID - of all
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16
Q

Liability: attempt to commit offence?

A

Section 72(1) CA61

  • having an intent to commit an offence
  • does or omits an act
  • for purpose of accomploshing their object
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17
Q

What are the three elements of an attempt established in case law?

A

Mens rea - intent commit offence
Actus reus - did something to achieve
Proximity - act/omission sufficiently close

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18
Q

Caselaw: R v RING

A

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

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19
Q

Examples of acts that may constitute an attempt?

A

LEPU

Lie in wait
Entice victim to scene
Possess materials to commit crime
Unlawfully entering a structure

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20
Q

Caselaw: R v HARPUR

A

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

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21
Q

Caselaw: HIGGINS v POLICE

A

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

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22
Q

Caselaw: Police v JAY

A

A man bought hedge clippings believing they were cannabis

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23
Q

Caselaw: R v DONNELLY
(Stolen property RTO…)

A

Where stolen property RTO, not offence to subsequently receive it even though receiver may know property previously stolen

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24
Q

Once an act is complete that is sufficiently proximate the defendant has no defence to an attempts charge because they were……? (3 things)

A
  • prevented by outside agent
  • failure due to ineptitude
  • prevented by intervening event making it physically impossible
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25
Q

What is the function of the judge and jury in attempts cases?

A

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

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26
Q

You are not able to charge someone with an attempt in 3 scenarios?

A
  • 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
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27
Q

Liability: parties to offence
66(1)

A

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

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28
Q

Liability: parties to? 66(2)?

A

-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
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29
Q

In cases of charging a person with party to offence you must prove 3 things?

A

ID
An offence successfully committed
Elements S66(1) satisfied

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30
Q

When must participation occur to be considered a party to offence?

A

Participation occurs before or during completion.

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31
Q

Caselaw: R v PENE

A

A party must intentionally help or encourage. Insufficient if reckless as to whether the principal was helped or encouraged

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32
Q

When is a principal party/offender liable under S66(1)(a)?

A

Where he or she personally satisfies the actus reus and mens rea requirements of the offence

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33
Q

What is a secondary party?

A

People whose assistance is sufficient under S66(1)(b)(c)(d) to make them liable due to their participation in offence committed by principal

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34
Q

Caselaw: R v RENATA

A

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)

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35
Q

To aid means to…..?

A

Assist in the commission of the offence, either physically or by giving advice or information

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36
Q

Examples of assistance?
“KPT”

A
  • Keeping lookout
  • Providing a tool to break into car
  • Telling associate neighbour is away so they can do burg
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37
Q

Caselaw: LARKINS v POLICE

A

unnecessary principal aware they being assisted there must be proof of actual assistance

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38
Q

What does abet mean?

A

“IEU”
instigate, encourage or urge to commit offence

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39
Q

Caselaw: ASHTON v POLICE

A

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

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40
Q

Caselaw: R v RUSSELL

A

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

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41
Q

Define incite?

A

“SSSR”

Stir up, stimulate, spur, rouse

42
Q

Define counsels?

A

Intentionally instigate offence by advising how to commit offence

43
Q

Define procures?

A

taking steps to ensure something happens

44
Q

Caselaw: R v BETTS and RIDLEY?

A

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

45
Q

What is the subjective appreciation of “known to be a probably consequence under parties to S66(2)?

A

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

46
Q

What is an innocent agent?

A

Someone unaware of the significance of their actions

47
Q

Investigative procedure: parties to:

Involvement of parties may be established by?

A

Reconstruction
Admissions by principal offender
Secondary offender admissions
Witness observations
Receiving info others involved

48
Q

Summarise S66(1) and what situations this deals with?

A

Situ where ppl involved are party to intended offence

49
Q

Summarise S66(2)and what situations this deals with?

A

Situ where ppl involved are party to intended offence and party to secondary offence committed pursuing intended one

50
Q

What was held in Caselaw R v RUSSELL?

A

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

51
Q

Liability: accessory after fact

A

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
52
Q

Caselaw R vCROOKS

A

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

53
Q

At time of assistance being given an accessory must have knowledge that…..?
(2 things)

A

1- An offence has been committed
2- Person they assisting was party to that offence

54
Q

Caselaw: R v BRIGGS

A

Knowledge can be inferred from wilful blindness or deliberate abstention from making inquiries that would confirm the suspected truth

55
Q

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?

A

Escape after K9
Avoid K9
Avoid conviction

56
Q

There are 5 intentional acts an accessory can commit, what are they?

A

RCA - TA

Receives
Comforts
Assists
Tampers with evidence
Actively suppress evidence

57
Q

Caselaw: R v MANE

A

TBC an accessory ATF, the acts done must be after completion of offence

58
Q

Give an example of tampering with evidence?

A

Modifying an offenders telephone records to conceal communications that may implicate them

59
Q

Give an example of actively suppressing evidence?

A

Bloodied clothing repeatedly washed to remove evidence or it’s set alight to destroy it

60
Q

Give some examples of RCA in accessory after fact instances?

A

Receives= hiding escapee in basement

Comforts= providing food/clothing/accomodation

Assists= providing transport or acting as a lookout

61
Q

Liability: perjury

A

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

62
Q

When is the offence of perjury complete?

A

At the time the case evidence is given accompanied by intention to mislead the tribunal

63
Q

What is the justification of corroboration being required in perjury cases?

A

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

64
Q

Examples of conspiring or attempting to mislead justice?

A
  • Prevent witness from testifying
  • Threaten/bribe a witness
  • false info to police to obstruct inquiries
  • supplying false info to PO”s
  • arranging false alibi
65
Q

What are the only 2 scenarios in which you may commence an investigation into perjury?

A
  • recommended by the courts
  • directed to do so by the commissioner
66
Q

Complaints of perjury can arise in 2 ways, what are those ways?

A
  • individual may complain that someone has perjured themselves
  • judge may state a court recommendation that police undertake inquiries into the evidence given
67
Q

What are the 2 main points to cover when interviewing a suspect in relation to perjury?

A
  • whether the suspect knew their assertion was false
  • whether they intended to mislead the court in the proceeding
68
Q

Liability: Receiving

A

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
69
Q

When is receiving complete?

A

If guilty knowledge exists at time of receiving = offence complete

70
Q

Caselaw: R v COX (possession)

A

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

71
Q

Caselaw: CULLEN v R

A

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

72
Q

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?

A

Arranged for the property to be delivered there
OR

On discovering the property, they intentionally exercised control over it

73
Q

Caselaw: R v DONNELLY

A

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

74
Q

Caselaw: R v LUCINSKY

A

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……

75
Q

Section 49 evidence act 2006 - conviction to be regarded as conclusive proof of guilt. How can this be applied in receiving prosecutions?

A

You are able to rely on the conviction of the thief that the property was stolen and satisfy one of the elements of receiving

76
Q

What is title?

A

Legal right/claim to possession/ownership of property

77
Q

Caselaw: R v KENNEDY

A

Guilty knowledge thing stolen/dishonestly obtained must exist at time of receiving

78
Q

Caselaw: CAMERON v R

A

Recognising real possibility actions would bring a proscribed result and actions were unreasonable

79
Q

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?

A
  • 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
80
Q

What does the doctrine of recent possession rule allow for?

A

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

81
Q

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?

A

Should be charged as party to principal offence of theft- S66(1) CA 61

82
Q

Explain 2 ways in which possession of property can be established in a charge of receiving?

A

Showing property is:
- in immediate custody of receiver OR
- at a location the receiver has control of

83
Q

What are the three phases of the money laundering cycle?

A

“PLI”

Placement
Layering
Integration

84
Q

Describe the 3 layers of the money laundering cycle?

A

“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

85
Q

What is money laundering?

A

dealing with proceeds of crime to appear legit

86
Q

What is tainted property?

A

Property wholly or partly been acquired as a result of significant criminal activity OR
Directly or indirectly derived from significant criminal activity

87
Q

What must the term of imprisonment be for a qualifying instrument forfeiture offence?

A

5 years or more

88
Q

What is significant criminal activity?

A

Offence punishable by 5 years +

Offending in which property or benefits is to a value of $30,000 or more

89
Q

What is the test for the high court in making a profit forfeiture order and what must it be satisfied of?

A

On the balance of probabilities:

Respondent unlawfully benefited from significant criminal activity within relevant period of time

Respondent has interests in property

90
Q

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……?

A

Value of asset
Equity in asset
Any 3rd party interest in asset
Cost of action re the asset

91
Q

As OC an affidavit will be required for a forfeiture of assets application, what should this outline?

A

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

92
Q

Caselaw: R v GIBBS

A

Acts done by accessory must have helped other person to evade justice

93
Q

Caselaw: R v LEVY

A

Held LEVY done a deliberate act to evidence against offender for purpose of assisting to evade justice

94
Q

Def: witness

A

Person who gives evidence and is able to be cross examined

95
Q

Def: assertion

A

Something declared

Stated positively

Support = none

96
Q

Def: a fact

A

A thing done, or an actual occurrence/event

97
Q

Def: opinion?

A

Statement opinion tends to
prove/disprove a fact

98
Q

Def: belief?

A

subjective feeling

validity

idea/facts

99
Q

Def: knowledge?

A

Knowing or correctly believing. Belief must be correct.

100
Q

Def: oath?

A

Declaration before person with authority to administer and is a religious belief

101
Q

Def: affirmation?

A

declaration before person with authority to administer

102
Q

Def: declaration?

A

Witness under 12 makes promise to tell truth

CIB Modules 22/23 - Mwby42 (10 decks)

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