CIB006 - Association Offences

Question 1

What happens if a person withdraws when conspiring?

Answer 1

A person withdrawing from the agreement is still guilty of conspiracy as are those people who become party to the agreement after it has been made. However a person can effectively withdraw before the actual agreement is made.

Eg; Three people intend to commit robbery. Two parties agree they will collectively commit the offence while the third reconsiders and withdraws before the agreement is made. The first two parties are guilty as co-conspirators but the third would not be liable.

Question 2

When is conspiracy complete

Answer 2

The offence is complete on the agreement being made with the required intent. No further progression towards the completion of the offence nor further involvement by the parties involved in the agreement is required.

Question 3

When interviewing a suspect about money laundering or where proceeds recovery action is to be considered, consider the following points;

Answer 3

• suspects legitimate income
• suspects illegitimate income
• expenditure
• assets
• liabilities
• acquisition of financial records, from banks, financing companies, loan sharks, family trust documents.
• clarification of documentary evidence located.

Question 4

What’s an instrument forfeiture order?

Answer 4

Means an order made under s142N of sentencing act 2002.

An order that the instrument of crime or any part of it specified by the court be forfeited to the crown.

Question 5

Guidance for completing a restraint application needs to be sought from whom?

Answer 5

Prosecutions and/or the Asset Recovery Unit

Question 6

s26 CPRA 2009 Instrument of crime; before preparing an application, The asset assessment process is conducted to determine;

Answer 6

• the value of the asset
• equity in the asset
• any third party interest in the asset
• the cost of action in respect of the asset.

Note: consult with FCG regarding the cost of action as they incur storage and assessment costs until a final determination is made by the courts.

Question 7

Unlawfully benefited from criminal activity s7 CPRA 2009.

The court held that the purpose of the forfeiture regime is for?

Answer 7

To prevent a person from profiting off significant criminal activity but to also prevent the chance that they might be able todo so and deter significant criminal activity.

Question 8

What is tainted property? s5 CPRA 2009

Answer 8

Means property that has, wholly or in part been;
- acquired as a result of significant criminal activity; or
- directly or indirectly derived from significant criminal activity.

Question 9

What is money laundering?

Answer 9

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

Question 10

What is the three stages of the Money Laundering Cycle?

Answer 10

Placement - cash enters the financial system
Layering - money is involved in a number of transactions
Integration - money is mixed with lawful funds or integrated back into the economy, with the appearance of legitimacy

Question 11

Why do criminals conduct money laundering?

Answer 11

• to avoid detection of criminal activity
• to preserve the fruits of crime
• to further a criminal enterprise

Question 12

What section/act covers money laundering?

Answer 12

s243 Crimes Act 1961

Question 13

What is conspiracy?

Answer 13

Two or more subjects forming an agreement todo an unlawful act, or to do a lawful act by unlawful means

Question 14

Conspiratorial agreement requires what faculties?

Answer 14

The operation of both the physical and mental faculties

Question 15

What is the actus reus (physical element) of conspiracy?

Answer 15

The agreement between two or more people to put their common design into effect. The agreement must be made before the commission of the acts which make up the full offence.

Question 16

What is the mens rea of conspiracy? (Intent)

Answer 16

The offenders mental intent must be to commit the full offence. Where this intent does not exist no crime has been committed

Question 17

What is the meaning of intent? In criminal law there is two types;

Answer 17

Intent to commit the deliberate act and intent to produce a specific result

Question 18

How to prove intent;

Answer 18

• the offenders actions and words, before during and after the event
• the surrounding circumstances
• the nature of the act itself

Question 19

Can a person conspire alone?

Answer 19

No, A person cannot conspire alone, there must be another conspirator for an offence to be committed. This may include as one of the parties, a person who is unable to carry out the substantive offence themselves.

Question 20

Is a person capable of conspiring with spouse, civil union and any other person?

Answer 20

Yes; A person is capable of conspiring with his or her spouse or civil union partner and any other person

Question 21

Definition;
Act

Answer 21

To take action or do something, to bring about a particular result.

Question 22

Definition;
Omission

Answer 22

The action of excluding or leaving out someone or something, a failure to fulfil a moral or legal obligation.

Eg; Security guard deliberately fails to lock door so associates can gain entry and commit burglary.

Question 23

Do you need to be present in NZ to be charged with conspiracy?

Answer 23

No, A person charged with conspiracy does not have been in NZ at the time of the act, omission or event.

It is an offence to conspire to commit and offence in NZ or any part of the world.

Question 24

Definition;

Conspiracy entered into overseas.

Answer 24

Under common law rules as to jurisdiction over conspiracy offences a person who has entered into a conspiracy overseas is amenable to the jurisdiction of NZ courts only if they are later physically present in NZ and they act in continuance of the conspiracy.

Question 25

is there a defence to conspiracy to commit an offence overseas?

Answer 25

Yes, the person has a defence if they are able to prove that the act is not an offence under the law of the place where it was to be committed. E.g conspires in NZ to commit bigamy in Saudi Arabia where it is not an offence.

Question 26

Definition; Conspiracy between parties in NZ and any other country

Answer 26

Where a conspiracy is made between parties in New Zealand and another country, the courts will likely take the view that the conspiracy was formed in both countries simultaneously.

Question 27

(Conspiracy investigative procedure) Witnesses Interview and obtain statements covering;

Answer 27

- 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

Question 28

(Conspiracy investigative procedure) Suspects Interview and obtain statements to establish;

Answer 28

- 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 - wether anything was written, said or done to further the common purpose.

Question 29

Caselaw has established three conditions that must apply for an attempt conviction to be successful;

Answer 29

- Intent(mens rea) - to commit an offence - act(actus reus) - that they did,or omitted to do something to achieve that end - proximity - that their act or omission was sufficiently close

Question 30

Does an attempt have to be physically possible to be convicted?

Answer 30

A person can be convicted of an offence that was physically impossible to commit but cannot be convicted of an offence that was legally impossible to commit. (e.g a person inside prison cannot legally carry out the offence to someone outside prison)

Question 31

s72 CA 1961 What does Acts must be sufficiently proximate to the full offence mean?

Answer 31

Effectively the accused must have started to commit the full offence and have gone beyond the phase of mere preparation.

Question 32

When is an act is physically or factually impossible?

Answer 32

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, or any other circumstance beyond their control.

Question 33

When is an attempt complete?

Answer 33

An attempt is complete even when the defendant changes their mind or makes a voluntary withdrawal after completing an act that is sufficiently approximate to the intended offence

Question 34

Once the acts are sufficiently proximate, the defendant has no defence that they;

Answer 34

- were prevented by some outside agent from doing something that was necessary to complete the offence; e.g interruption from Police - failed to complete the full offence due to efficiency or insufficient means; e.g. insufficient explosive to blow apart a safe - were prevented from committing the offence because an intervening event made it physically impossible; e.g. removal of Property before intended theft

Question 35

When are you unable to charge with an attempt?

Answer 35

- The criminology depends on recklessness or negligence, e.g. manslaughter - An attempt to commit an offence is included within the definition of that offence, e.g. assault - The offence is such that the act has to be completed in order for the offence to exist at all, e.g. demands with menace

Question 36

Offence committed other than offence intended s70 CA 1961 What do you need to prove?

Answer 36

- the identity of the defendant, - an offence has been successfully committed; and - the elements of the offence s66(1) have been satisfied

Question 37

When must participation have occurred to be considered a party to the offence?

Answer 37

Participation must have occurred before or during the commission of the offence and before the completion of the offence

Question 38

Parties to What is a principal party?

Answer 38

A person will be a principal party where he personally satisfies the actus reus and mens Rea requirements of the offence. the person is part of the original planning.

Question 39

Parties to What is a secondary party?

Answer 39

Secondary parties are those people whose assistance, abatement, incitement, counselling or procurement is sufficient to their participation in the offence. A secondary party does not need to know the precise detail involved in planning or committing the offence, in order to be considered a party is not necessarily present during the offence.

Question 40

Meaning of abets;

Answer 40

Abets means to instigate or encourage; that is to urge another person to commit the offence.

Question 41

Definition: Party to a secondary offence Common intention;

Answer 41

In situations where two or more offenders for a common intention(an agreement) and embark on a joint enterprise(commit an offence) all who entered into the agreement can be charged as parties to that offence.

Question 42

What’s an innocent agent?

Answer 42

An innocent agent is someone who is unaware of the significance of their actions. In cases where offenders use an innocent agent, the innocent agent is not regarded as a participant in the offence. An innocent agent cannot be convicted as a secondary party

Question 43

Parties to; Investigate procedure The involvement of parties may be established by;

Answer 43

- A reconstruction of the offence committed - Admissions by the principal offender that others were involved in the offence - Suspect or witnesses admitting to providing aid or assistance - A witness providing evidence of another persons involvement based on their observations - Receiving information indicating others were involved in the offence

Question 44

What is accessory after the fact?

Answer 44

A person who recievce or assists the offender, or destroys or tempers with evidence, in order to help the offender to avoid arrest, or to escape after arrest

Question 45

Accessory after the fact At the time of assistance given, an accessory must possess knowledge that;

Answer 45

- 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 after the assistance has been given they are not liable as an accessory

Question 46

Perjury - definition Fabricating evidence s113 crimes act 1961

Answer 46

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 s108 applies, fabricates evidence by any means other than perjury.

Question 47

Perjury Examples of misleading justice;

Answer 47

- preventing a witness from testifying - Wilfully going absent as a witness - Threatening of bribing witnesses - Concealing the fact and offence 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

Question 48

Receiving - requires satisfaction of 3 elements to prove offence;

Answer 48

- There must be Property which has been stolen or had been obtained by an imprisonable offence. - The defendant must have received the property from another - The defendant must receive that property knowing it has been stolen, illegally obtained or being reckless as to that possibility.

Question 49

Receiving - When is the act complete? s246(3)

Answer 49

If there is guilty knowledge at the point that the act of receiving is complete, then the offence of receiving has been committed. It is not necessary for the receiver to take personal physical custody of the property.

Question 50

Receiving - control over property definition;

Answer 50

Where Property is located at a place where the receiver has control, then the prosecution must prove the receiver arranged for the property to be delivered there, or alternatively, that on discovering the property, he intentionally exercised control over it. Intent to possess the property must also be satisfied.

Question 51

Receiving - offence must be legally possible definition;

Answer 51

It must be legally possible to commit the offence of receiving. Where Property has been restored, directly to the owner or via Police acting as the owners agent, there can be no conviction. This is because the property is no longer deemed stolen.

Question 52

Receiving - concept of title definition;

Answer 52

A right or claim to the ownership of property. Title or ownership of a thing is the legal right to position of that thing.

Question 53

Receiving - voidable title definition;

Answer 53

Title obtained by deception is referred to as voidable title. This means the title can be avoided by the seller. The issue is that although the title is avoidable, it is still a title

Question 54

Receiving - avoiding title In order to avoid title one of the following must be completed;

Answer 54

- communicating directly with the deceiver - Taking all reasonable and possible steps to bring it to the deceivers notice, e.g letter or email. - advising Police of the circumstances of the deception.

Question 55

Receiving - property stolen to order definition;

Answer 55

Are situations where Property is stolen to order, the receiver of such stolen property is liable as a party to the principle offence, rather than the receiver of stolen property.

Question 56

Conspiracy - Inteview Witnesses covering?

Answer 56

* the identity of people present at the time of agreement * with whom the agreement was made * what offence was planned * any acts carried out to futher the common purpose

Question 57

Conspiracy - Interview suspects covering?

Answer 57

* the exisitance of an agreement to commit an offence * the exisitance of an agreement to omit to do something that would amount to an offence * the intent of those invovled in the agreement * the identity of all people concered where possible * whether anything was written, said or done to further the common purpose

Question 58

Conspiracy - considerations for ways to looking for evidence

Answer 58

* search warrants * electronic considerations

Question 59

Who can apply for a restraining order and how long are they valid? (assests)

Answer 59

only members from Asset Recovery Unit. orders are valid for one year from the date on which the order is made. courts may issue an extension for one year.

Question 60

What elements must be met for an attempt?

Answer 60

* Intent - mental intent to commit the offence * act - they did or omitted something to achieve that end * proximity - their act or omission was sufficently close

Question 61

US Penal code

Answer 61

* lying in wait, search or following the contemplated vicitm * enticing the victim to goto the contemplated scene * reconnoriting the scene of the contemplated crime. * unlawfully entering a structure, vehicle or enclosure in which it is contemplated that the crime will be commited. * posessing,collecting or fabricating materials to be employed in the comission of the crime. * soliciting an innocent agent to engage in conduct consituting an element of the crime.

Question 62

Who decides if an act is sufficently proximate?

Answer 62

the judge decides

Question 63

Parties to; does the primary party need to be charged before the secondary party?

Answer 63

No, a person can be charged as a secondary party even if police have not located and charged or convicted the primary party.

Question 64

parties to; joint enterprise for Murder and Manslaughter

Answer 64

Murder * intentionally helped or encouraged * foresaw murder was a risk in the situation Manslaughter * knew at some stage there was a risk of killing short of murder * can be expected to have known there was a present real risk of killing

Question 65

parties to; principal offender cannot be convicted due to insanity etc can a secondary still be convicted?

Answer 65

where a principal offender cannot be convicted due to infancy,insanity or death a secondary party may still be convicted

Question 66

recieving - Doctrine of recent posession meaning;

Answer 66

allows proof by way of circumstantial evidence. in circustances where a person is found in posession of stolen property reasonably soon after the theft, an inference may be drawn that the person in posession either stole the property or recieved it from a thief.