CIB006 - Association Offences Flashcards
What happens if a person withdraws when conspiring?
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.
When is conspiracy complete
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.
When interviewing a suspect about money laundering or where proceeds recovery action is to be considered, consider the following points;
- 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.
What’s an instrument forfeiture order?
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.
Guidance for completing a restraint application needs to be sought from whom?
Prosecutions and/or the Asset Recovery Unit
s26 CPRA 2009 Instrument of crime; before preparing an application, The asset assessment process is conducted to determine;
- 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.
Unlawfully benefited from criminal activity s7 CPRA 2009.
The court held that the purpose of the forfeiture regime is for?
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.
What is tainted property? s5 CPRA 2009
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.
What is money laundering?
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
What is the three stages of the Money Laundering Cycle?
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
Why do criminals conduct money laundering?
- to avoid detection of criminal activity
- to preserve the fruits of crime
- to further a criminal enterprise
What section/act covers money laundering?
s243 Crimes Act 1961
What is conspiracy?
Two or more subjects forming an agreement todo an unlawful act, or to do a lawful act by unlawful means
Conspiratorial agreement requires what faculties?
The operation of both the physical and mental faculties
What is the actus reus (physical element) of conspiracy?
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.
What is the mens rea of conspiracy? (Intent)
The offenders mental intent must be to commit the full offence. Where this intent does not exist no crime has been committed
What is the meaning of intent? In criminal law there is two types;
Intent to commit the deliberate act and intent to produce a specific result
How to prove intent;
- the offenders actions and words, before during and after the event
- the surrounding circumstances
- the nature of the act itself
Can a person conspire alone?
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.
Is a person capable of conspiring with spouse, civil union and any other person?
Yes; A person is capable of conspiring with his or her spouse or civil union partner and any other person
Definition;
Act
To take action or do something, to bring about a particular result.
Definition;
Omission
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.
Do you need to be present in NZ to be charged with conspiracy?
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.
Definition;
Conspiracy entered into overseas.
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.
is there a defence to conspiracy to commit an offence overseas?
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.
Definition;
Conspiracy between parties in NZ and any other country
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.
(Conspiracy investigative procedure)
Witnesses
Interview and obtain statements 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
(Conspiracy investigative procedure)
Suspects
Interview 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 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.
Caselaw has established three conditions that must apply for an attempt conviction to be successful;
- 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
Does an attempt have to be physically possible to be convicted?
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)
s72 CA 1961
What does Acts must be sufficiently proximate to the full offence mean?
Effectively the accused must have started to commit the full offence and have gone beyond the phase of mere preparation.
When is an act is physically or factually impossible?
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.
When is an attempt complete?
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
Once the acts are sufficiently proximate, the defendant has no defence that they;
- 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
When are you unable to charge with an attempt?
- 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
Offence committed other than offence intended s70 CA 1961
What do you need to prove?
- the identity of the defendant,
- an offence has been successfully committed; and
- the elements of the offence s66(1) have been satisfied
When must participation have occurred to be considered a party to the offence?
Participation must have occurred before or during the commission of the offence and before the completion of the offence
Parties to
What is a principal party?
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.
Parties to
What is a secondary party?
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.
Meaning of abets;
Abets means to instigate or encourage; that is to urge another person to commit the offence.
Definition:
Party to a secondary offence
Common intention;
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.
What’s an innocent agent?
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
Parties to;
Investigate procedure
The involvement of parties may be established by;
- 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
What is accessory after the fact?
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
Accessory after the fact
At the time of assistance given, an accessory must possess knowledge that;
- 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
Perjury - definition
Fabricating evidence s113 crimes act 1961
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.
Perjury
Examples of misleading justice;
- 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
Receiving - requires satisfaction of 3 elements to prove offence;
- 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.
Receiving -
When is the act complete? s246(3)
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.
Receiving - control over property definition;
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.
Receiving - offence must be legally possible definition;
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.
Receiving - concept of title definition;
A right or claim to the ownership of property. Title or ownership of a thing is the legal right to position of that thing.
Receiving - voidable title definition;
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
Receiving - avoiding title
In order to avoid title one of the following must be completed;
- 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.
Receiving - property stolen to order definition;
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.
Conspiracy - Inteview Witnesses covering?
- 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
Conspiracy - Interview suspects covering?
- 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
Conspiracy - considerations for ways to looking for evidence
- search warrants
- electronic considerations
Who can apply for a restraining order and how long are they valid? (assests)
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.
What elements must be met for an attempt?
- 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
US Penal code
- 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.
Who decides if an act is sufficently proximate?
the judge decides
Parties to; does the primary party need to be charged before the secondary party?
No, a person can be charged as a secondary party even if police have not located and charged or convicted the primary party.
parties to; joint enterprise for Murder and Manslaughter
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
parties to; principal offender cannot be convicted due to insanity etc can a secondary still be convicted?
where a principal offender cannot be convicted due to infancy,insanity or death a secondary party may still be convicted
recieving - Doctrine of recent posession meaning;
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.
