CIB006 - Association Offences

Question 1

What is conspiracy?

Answer 1

two or more subjects forming an agreement to do an unlawful act, or to do a lawful act by unlawful means.

Question 2

What’s an omission?

Answer 2

The agreement between the parties concerned may also have as its object an omission (failure to act) as opposed to the commission of an offence.

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

Question 3

What happens if a person withdraws when conspiring?

Answer 3

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 4

When is conspiracy complete

Answer 4

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 5

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

Answer 5

• 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 6

What’s an instrument forfeiture order?

Answer 6

Means an order made under s142N of sentencing act 2002.

Note: following a hearing under s142K Sentencing Act 2002, the court may, if it is satisfied that the property described in the notice given under s142b is an instrument of crime, order that the instrument of crime or any part of it specified by the court be forfeited to the crown.

Question 7

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

Answer 7

Prosecutions and/or the Asset Recovery Unit

Question 8

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

Answer 8

• 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 9

Unlawfully benefited from criminal activity s7 CPRA 2009.

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

Answer 9

To prevent the ability for a person to profit from the undertaking of significant criminal activity but to also prevent the chance that they might be able todo so and deter significant criminal activity.

Question 10

What is tainted property? s5 CPRA 2009

Answer 10

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 11

What is money laundering?

Answer 11

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 12

What is the three stages of the Money Laundering Cycle?

Answer 12

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 13

Why do criminals conduct money laundering?

Answer 13

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

Question 14

What section/act covers money laundering?

Answer 14

s243 Crimes Act 1961

Question 15

What is conspiracy?

Answer 15

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

Question 16

Conspiracy case law

Mulcahy v R

Answer 16

A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more todo an unlawful act, or todo a lawful act by unlawful means. When two agree to carry it into effect, the very plot is an act in itself.

Question 17

Conspiracy

What is omission?

Answer 17

The agreement between the parties concerned may also have as its object an omission(failure to act).

E.g a security guard deliberately fails to lock door so associates can gain entry and commit burglary

Question 18

Conspiracy

What happens if a person Withdrawing is from the agreement?

Answer 18

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.

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

Question 19

When is conspiracy complete?

Answer 19

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 20

Conspiracy

R v Sanders

Answer 20

A conspiracy does not end with the making of the agreement. The conspiratorial agreement continues and operation and therefore an existence until it is ended by completion of its performance or abandonment or in any other manner by which agreements are discharged.

Question 21

Conspiratorial agreement requires what faculties?

Answer 21

The operation of both the physical and mental faculties

Question 22

Conspiracy

The mens rea (mental intent) necessary for a conspiracy is;

Answer 22

• 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 23

Conspiracy

The actus reus (physical element) of conspiracy is;

Answer 23

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 24

What is the Actus Reus of Conspriacy?

Answer 24

There is no requirement for the conspirators to actually carry out the illegal conduct.

Physical acts, words or gestures used whether express or implied are considered an agreement.

A simple verbal agreement will suffice and there is no need for them to have made a decision on how they will actually commit to the offence.

Mere passive presence or knowledge of an intention does not amount to being part to the conspiracy.

Question 25

What is the mens rea of conspiracy? (Intent)

Answer 25

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

Question 26

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

Answer 26

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

Question 27

How to prove intent;

Answer 27

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

Question 28

Can a person conspire alone?

Answer 28

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 29

Conspiracy

R v White

Answer 29

Where you can prove that a suspect conspired with other parties whose identities are unknown, that suspect can still be convicted even if the identity of the other parties is never established.

Question 30

Definition;
Conspiring with spouse or partner
s67 CA 1961

Answer 30

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

Question 31

Definition;
Act

Answer 31

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

Question 32

Definition;
Omission

Answer 32

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

Question 33

What is the jurisdiction when a person is charged with conspiracy?

Answer 33

A person charged with conspiracy need 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 34

Definition;

Conspiracy entered into overseas.

Answer 34

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 35

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

Answer 35

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 36

Case law;
Conspiracy between parties in NZ and any other country

Answer 36

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 37

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

Answer 37

• 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 38

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

Answer 38

• 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 39

Case law - Conspiracy

R v Humpries

Answer 39

It may be appropriate to include a charge of conspiracy where a charge of the substantive offence does not adequately represent the total criminal.

E.g P&G burn down a warehouse and then conspire to murder a witness. Charge with arson and conspiracy.

Question 40

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

Answer 40

• 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 41

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

Answer 41

No, a person can be convicted of an offence that was physically impossible to commit

Question 42

Case law - Attempts
R v Ring;

Answer 42

In this case the offenders intent was to steal Property by putting his hands into the pocket of the victim. Unbeknown to the offender the pocket was empty. Despite this he was able to be convicted of an attempted theft, because the intent was to steal whatever property might have been discovered inside the pocket.

Question 43

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

Answer 43

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

Question 44

Case law - Attempts
R v Harpur

Answer 44

The court may have regard to the conduct viewed cumulatively up to the point when the conduct and question stops. The defendants conduct may be considered in its entirety. Considering how much remains to be done is always relevant though not determinative.

Question 45

Simester and brookbanks;

What’s is the proximity test(attempts)

Answer 45

• 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 and the actual crime itself.

If the answer is yes then there has been an attempt

Question 46

When an act is physically or factually impossible;

Answer 46

An act is physically or factually impossible if the act question amounts to an offence, but the suspect is unable to commit it due to interruption, or any other circumstance beyond their control.

Question 47

When is an attempt complete?

Answer 47

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 defence

Question 48

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

Answer 48

• 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 49

Attempt to commit an attempt;

Answer 49

There is no such thing as an attempt to commit an attempt.

Question 50

When are you unable to charge with an attempt?

Answer 50

• 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 51

Parties to offences;

What does s66(1)(d) deal with?

Answer 51

Situations where the people involved are a party to the intended defence

Question 52

Parties to offences;

What does s66(2) deal with?

Answer 52

Situations where the people involved are a party to the intended defence and a party to any secondary offence committed in pursuance of the intended offence

Question 53

Offence committed other than offence intended s70 CA 1961

What do you need to prove?

Answer 53

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

Question 54

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

Answer 54

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

Question 55

Parties to

What is a principal party?

Answer 55

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

Question 56

Parties to

What is a secondary party?

Answer 56

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

Question 57

Case law - parties to
R v Renata (multiple offenders)

Answer 57

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

Question 58

Meaning of abets;

Answer 58

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

Question 59

Party to a secondary offence

Common intention;

Answer 59

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 60

Caselaw - Parties to

R v Betts and Ridley

Answer 60

An offence we are no violence is contemplated and the principal offender in carrying out the common aim uses violence, a secondary offender taking no physical part in it would not be held liable for the violence used.

Question 61

What’s an innocent agent?

Answer 61

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 62

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

Answer 62

• 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 63

What is accessory after the fact?

Answer 63

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