CIB006 - Association

Question 1

What reasons are there for not charging with both conspiracy and the substantive offence? (P17)

Answer 1

Laying both a substantive charge and a related conspiracy charge is often undesirable because:

• 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 defendant’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 charging document may be heard at separate trials.

Question 2

What are the ingredients of S113 Crimes Act - Fabricates Evidence? (P67)

Answer 2

Everyone is liable to imprisonment for a term not exceeding 7 years who:

• with intent to mislead any tribunal holding any judicial proceeding to which section 108 applies
• fabricates evidence by any means other than perjury.

Question 3

What knowledge of belief must a person hold to be guilty of money laundering? (P97)

Answer 3

Anyone is liable who in respect of any property that is the proceeds of a serious offence engages in a money laundering transaction:
knowing or believing that all or part of the property is the proceeds of any serious offence, OR
being reckless as to whether or not the property is the proceeds of a serious offence.

Question 4

What is Larkins v Police? (P40)

Answer 4

While 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 he is being assisted removes a common foundation for a finding of actual assistance, namely that the principal was able to proceed with his enterprise with the additional confidence gained because his accomplice was on the lookout for unwanted intervention.

Question 5

What are the three essential elements in the act of receiving? (P79)

Answer 5

The act of receiving requires the satisfaction of three elements:

1) There must be property which has been stolen or has been obtained by an imprisonable offence.
2) The accused must have “received” that property, which requires that the receiving must be from another (you cannot receive from yourself).
3) The accused must receive that property in the knowledge that it has been stolen or illegally obtained, or being reckless as to that possibility.

Question 6

Define R v Sanders (P10)

Answer 6

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.

Question 7

What three conditions must apply for an attempt conviction to succeed?

Answer 7

Intent to commit an offence – Mens rea
Act, did or omitted to do something to achieve that end – Actus reus
Proximity – The act or omission was sufficiently close.

Question 8

A witness asks if his evidence will be admissible as he believes that opinion evidence is inadmissible. You explain to him about opinion evidence. What Section of which Act covers this and what does it state? (P69)

Answer 8

S24, 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.

Question 9

What is the definition of a Serious Offence? (P97)

Answer 9

Means an offence punishable by imprisonment for a term of 5 years or more; and includes any act, wherever committed, that, if committed in New Zealand would constitute an offence punishable by imprisonment for a term of 5 years or more.

Question 10

What knowledge must an accessory possess to be liable as an accessory after the fact? (P56)

Answer 10

Knowledge that an offence has been committed.

Knowledge that the person they are assisting was a party (principal or secondary) to that offence.

Question 11

When is an act physically or factually impossible?

Answer 11

An act is physically or factually impossible if the act in question amounts to an offence, but the suspect is unable to commit it due to interruption, ineptitude, or any other circumstances beyond their control.
R v RING; Police v JAY; HIGGINS v Police

Question 12

What is an innocent agent?

Answer 12

An innocent agent carries no liability because they are unaware of the significance of their actions and as such is not capable of conviction as a secondary party.

Question 13

What is the mens rea for conspiracy?

Answer 13

An intention of those involved to agree AND

An intention that the relevant course of conduct should be pursued by those party to the agreement

Question 14

Define “Acts must be sufficiently proximate to an offence”?

Answer 14

Generally, to prove an attempt the accused must have done or omitted to do some act(s) that is/are sufficiently proximate (close) 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.

Question 15

What are the ingredients of accessory after the fact?

Answer 15

• 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.

Question 16

Provide examples of guilty knowledge required for receiving?

Answer 16

• possession of recently stolen property
• nature of the property, ie type, value, quantity
• purchase at a gross undervalue
• secrecy in receiving the property
• receipt of goods at an unusual place
• receipt of goods at an unusual time
• receipt of good in an unusual way
• concealment of property to avoid discovery
• removal of identifying marks or features
• steps taken to disguise property, ie removal / altering of serial numbers, painting
• lack of original packaging
• type of person goods received from
• mode of payment
• absence of receipt where receipt would usually be issued
• false statements as to the source of the goods
• false statements as to the date of acquisition
• nature of explanation given, eg false or inconsistent or no reasonable explanation
• false denial of knowledge, existence etc

Question 17

Define R V RENATA?

Answer 17

Three offenders beat a male to death. It was unable to be established which one dealt the fatal blow. Where the principal offender cannot be identified it is sufficient to prove that each offender must have been either the principal or party in a manner contemplated by S66(1).

Question 18

Conspiracy Interviews – What to cover?

Answer 18

Interview and obtain statements from witnesses covering:
• the identity of the people present at the time of the agreement.
• with whom the agreement was made.
• what offence was planned.
• any acts carried out to further the common purpose.

Interview the people concerned (suspects), 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
• 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.

Question 19

Define Tainted Property

Answer 19

Means any property that has, wholly or in part, been –

i) acquired as a result of significant criminal activity
ii) directly or indirectly derived from significant criminal activity
iii) and includes property that has been acquired as a result of or directly or indirectly derived from more than 1 criminal activity if at least one of those activities is a significant criminal activity.

Question 20

Define Unlawful Benefit?

Answer 20

Unlawfully Criminal Recovery Act
A person has unlawfully benefited from significant criminal activity if they have knowingly, directly or indirectly benefited from a significant criminal activity (whether or not that person undertook or was involved in the significant criminal activity).

Question 21

What intent is required for Perjury?

Answer 21

The person must give false evidence. That false evidence must be accompanied by an intention to mislead the tribunal. Without that intention there is no offence.

Question 22

Definition of incite?

Answer 22

To rouse, stimulate, stir up, stimulate, urge a person to commit an offence.

Question 23

What must you prove for a charge of parties?

Answer 23

Identity of the defendant
An offence has been successfully committed
Ingredients of 66(1) - Everyone is party to and guilty of an offence who:
a) actually commits the offence
b) does or omits an act with the purpose of aiding any person to commit the offence
c) abets any person in the commission of an offence
d) incites, counsels or procures any person to commit an offence

Question 24

Define Ashton v Police

Answer 24

Legal Duty – An example of a secondary party owing a legal duty to a third person or to the general public is a person teaching another person to drive. That person is, in New Zealand, under a legal duty to take reasonable precautions, because under s156 of the Crimes Act 1961 he is deemed to be in charge of a dangerous thing.

Question 25

What is the test for proximity?

Answer 25

These questions can be used to determine 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?
Has the offender actually commenced execution; that is to say, has he taken a step in the actual offence itself?

Question 26

Define Wilful Blindness

Answer 26

A person is considered wilfully blind in only two situations, these being:
Where the person deliberately shuts their eyes and fails to inquire; this is because they knew what the answer would be OR
In situations where the means of knowledge are easily at hand and the person realises the likely truth of the matter but refrains from inquiring in order not to know

Question 27

What is Parties S66(2)?

Answer 27

When two people form a common intention to commit an offence, each is then a party to every offence committed by either if that offence was known to be a probable consequence of the prosecution of their common purpose.

Question 28

What is the doctrine of recent possession?

Answer 28

It is the presumption that, where the defendant acquired possession willingly, the proof of possession by the defendant of property recently stolen is, in the absence of a satisfactory explanation, evidence to justify 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

Question 29

What was held in R v DONNELLY?

Answer 29

Where stolen property has been physically recovered by the Police, it is legally impossible to commit the crimes of receiving or attempted receiving in respect of it, although there may be evidence of conspiring to receive property dishonestly obtained.

Question 30

Admissibility of evidence in Conspiracy?

Answer 30

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.

Question 31

When are you unable to charge with an attempt?

Answer 31

• 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. For example, demanding with menaces: it is the demand accompanied by the menace that constitutes the offence.

Question 32

Explain Section 112 of the Crimes Act 1961?

Answer 32

Evidence of perjury, false oath, or false statement:
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 defendant.

Question 33

Give examples of misleading justice? (TIPCATSAA)

Answer 33

Threatening or bribing a witness
Intentionally giving police false information to obstruct their inquiries
Preventing a witness from testifying
Concealing the fact an offence has been committed
Assisting a wanted person to leave the country
Threatening or bribing jury members
Supplying false information to probation officers
Wilfully going absent as a witness
Arranging a false alibi

Question 34

When is Receiving complete?

Answer 34

The act of receiving any property stolen or obtained by any other imprisonable offence 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.

Question 35

Define control over property?

Answer 35

Where property is located at a place, over which the receiver has control, then the prosecution must prove the receiver arranged for the property to be delivered there, or alternatively, that upon discovering the property, he or she intentionally exercised control over it. As noted above, intent to possess the property must also be satisfied.

Question 36

When can the court make a profit forfeiture order?

Answer 36

Section 55, Criminal Proceeds (Recovery) Act 2009:

(1) The High Court must make a profit forfeiture order if it is satisfied on the balance of probabilities that—
(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.

Question 37

Define Aids

Answer 37

To aid means to assist in the commission of the offence, either physically or by giving advice and information. In order to aid, the presence of the person offering the aid is not required at the scene, before, or at the time of the offence being committed.

Question 38

Define Abets

Answer 38

Abets means to instigate or encourage; that is, to urge another person to commit the offence. As with aiding, the presence of the abettor at the scene of the offence at the time of its commission is not required.

Question 39

Define Incites

Answer 39

To incite means to rouse, stir up, stimulate, animate, urge or spur on a person to commit the offence. For example, a sports fan spurs on another fan to assault a protester and yells approval while the offence takes place.

Question 40

Define Counsels

Answer 40

Counsels means to intentionally instigate the offence by advising a person(s) on how best to commit an offence, or planning the commission of an offence for another person(s). Counselling may also mean “urging someone to commit an offence”, in which case it will overlap with incitement.

Question 41

Define Procures

Answer 41

Procurement is setting out to see that something happens and taking the appropriate steps to ensure that it does.

“Procures” requires that the secondary party deliberately causes the principal party to commit the offence. It requires a stronger connection between the secondary party and the commission of the offence than is evidenced in aiding, abetting or inciting.

Question 42

Who can apply for restraining orders?

Answer 42

Only members of Asset Recovery Units may apply for restraining orders (apart from those relating to Instruments of Crime), assets forfeiture orders and profit orders.