Generals Flashcards
Accessory after the fact s71(1) CA61
1) Knowing any person to be part to an offence.
Knowing – the accused must have knowledge that the person that they are being an accessory to party to an offence at the time of assisting them.
Semester and Brookbanks- knowing means knowing or correctly believing the belief must be a correct one, where the belief is wrong a person cannot know something
R v crooks- knowledge means actual knowledge or belief in the sense of having no real doubt that the person assisted was a party to the relevant offence.
R v Briggs- knowledge may also be inferred from wilful blindness or a deliberate abstention from making inquiries that would confirm the suspected truth.
Person- gender neutral. Proven by judicial notice or circumstantially.
Party- s66(1) CA61 defined as being anyone who
- commits the offence
- Does or admit an an act for the purpose of aiding any person to commit the offence
- Abets any person in the commission of the offence
- Incites, counsels or procures any person to omit the offence.
Offence- an act or omission that is punishable on convection under any enactment and are demarcated into four categories.
A person charged with being an accessory after the fact is entitled to insist on proof of the principal crime and to challenge the evidence even if the principal offender has pleaded guilty
2) receives comforts or a person OR tempers with or actively suppresses any evidence against him or her
Receives comforts or assists the accused as a deliberate act for the purpose of assisting the person to avoid justice. The act done must help the person in someway.
Conspiracy s310(1)
- Conspires
- With any person
- To commit any offence or
- To do or omit, in any part of the world,
- anything of which the doing or omission in New Zealand would be an offence.
Omission
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 and as such this must not be overlooked.
withdrawing from the agreement
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.
Completion of conspiracy
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.
Agreement requires
physical and mental faculties
The mens rea (mental intent) necessary for a conspiracy is:
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
The actus reus (physical element) of conspiracy is 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 and the object of the conspiracy.
Deliberate act
“Intent” means that act or omission must be done deliberately. The act or omission must be more than involuntary or accidental.
Two or more people
This is proven circumstantially. 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. For example, this might be someone who has a physical impediment that does not enable the person to commit the substantive offence. Despite such an impediment it does not lessen their involvement in any conspiracy to which they are a party.
Conspiring with spouse or partner
Section 67, Crimes Act 1961
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.
Offence explained
“Offence” and “crime” are words that are used interchangeably in statute, and there is no material difference between them. They may be described as any act or omission that is punishable on conviction under any enactment, and are demarcated into four categories described in s6, Criminal Procedures Act 2011.
Act omission defined
Act: To take action or do something, to bring about a particular result: Oxford Dictionaries, Oxford University Press.
Omission: the action of excluding or leaving out someone or something, a failure to fulfil a moral or legal obligation: Oxford Dictionaries, Oxford, University Press.
Jurisdiction Section 7, Crimes Act 1961
For the purpose of jurisdiction, where any act or omission forming part of any offence, or any event necessary to the completion of any offence, occurs in New Zealand, the offence shall be deemed to be committed in New Zealand, whether the person charged with the offence was in New Zealand or not at the time of the act, omission, or event.
Thus a person charged with conspiracy need not have been in New Zealand at the time of the act, omission or event. It is an offence not only to conspire to commit an offence in New Zealand, but also to conspire to do or omit in any part of the world, anything the doing
or omitting of which would be an offence if done or omitted in New Zealand. Not all acts or omissions forming part of the offence need be committed in New Zealand; some, perhaps almost all, may occur outside.
Conspiracy entered into overseas
Under the common law rules as to jurisdiction over conspiracy offences a person who has entered into a conspiracy overseas is amenable to the jurisdiction of New Zealand courts only if they are later physically present in New Zealand and they act in continuance of the conspiracy.
Conspiracy to commit an offence overseas
Under s310 of the Crimes Act 1961, it is an offence to conspire to
commit an offence or to do or omit to do anything, in any part of the world that would be an offence in New Zealand. 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.
Admissibility of evidence
The intention, of the parties involved, to actually carry out the offence is an essential element to a conspiracy charge. There must be a common aim to commit some offence and an intention that the aim is to be effected.
Investigation procedure for conspiracy- witnesses and suspects
- 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.
Suspects
- Interview the people concerned, 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
- whether anything was written, said or done to further the common purpose.
Charging with conspiracy
Generally, charges of conspiracy should not be filed in situations where the specific (substantive) offence can be proved. 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.
Attempting to commit an offence defintion
Crimes Act 1961 s72 Definition of attempts
(1) Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.
The requirement for “intent” in section 72(1) suggests that an intention to commit the offence only will be sufficient and that there cannot be an attempt where an offence is defined solely in terms of recklessness or negligence. Two examples highlighting the difference between an “intent to commit an offence” and “recklessness” are shown below.
Three elements of an attempt offence
Case law has established the following three conditions that must apply for an ‘attempt’ conviction to succeed:
-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 ommission was sufficiently close
The suspect behaviour must satisfy all three conditions, at a minimum, to constitute an attempt. Additionally there is the requirement that it must be legally possible to commit the offence, in the circumstances. A person can be convicted of an offence that was physically impossible to commit.
When proving an attempt to commit an offence it must be shown that the accused’s intention was to commit the substantive offence.
Inferring intent from the act
The intent of the offender(s) may be inferred from the act itself (what they did) and/or proved by admissions or confessions (what they said).
A question of fact
Whether that intent exists or not is a question of fact; a question that the jury decides.
Act or omission defined
Act: To take action or do something, to bring about a particular result: Oxford Dictionaries, Oxford University Press.
Omission: The action of excluding or leaving out someone or something, a failure to fulfil a moral or legal obligation: Oxford Dictionaries, Oxford. University Press.
Acts must be sufficiently proximate to the full offence
Section 72(3) Crimes Act 1961 outlines that the accused must have done or sufficiently omitted to do some act(s) that is/are sufficiently proximate (close) to the full proximate to offence. Effectively, the accused must have started to commit the full offence the full offence
and have gone beyond the phase of mere preparation – this is the “all but” rule.
Several acts together may constitute an attempt
In concluding that Harpur’s conduct was sufficiently proximate to the full offence, the Court of Appeal held that his actions need not be considered in isolation; sufficient evidence of his intent was available from the events leading up to that point.
Impossibility
The wording in the statute “whether in the circumstances it was possible to commit the offence or not” refer to a physical or factual impossibility and not to a legal impossibility. This means 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.
When 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, ineptitude, or any other circumstances beyond their control.
Act completed sufficiently proximate to 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; eg interruption from police
failed to complete the full offence due to ineptitude, inefficiency or
·insufficient means, eg insufficient explosive to blow apart a safe
were prevented from committing the offence because an intervening event
·made it physically impossible, eg removal of property before intended theft.
Function of the judge and jury
The judge must decide whether the defendant had left the preparation stage and was already trying to effect completion of the full offence.
The jury must then decide whether the facts presented by the Crown have been proved beyond reasonable doubt and, if so, must next decide whether the defendant’s acts are close enough to the full offence.
Unable to charge with attempt
You are not able to charge someone with an attempt to commit an offence where:
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.
Parties to offence:
Section 66, Crimes Act 1961 (1)(a)-(d)
(1) Every one is a party to and guilty of an offence who-
(a)Actually commits the offence; or
(b)Does or omits an act for the purpose of aiding any person to commit the offence; or
(c) Abets any person in the commission of the offence; or
(d) Incites, counsels, or procures any person to commit the offence.
Party to offence what you need to prove:
In each case of charging a person with being a party to an offence, you must
prove:
· The identity of the defendant, and
· an offence has been successfully committed; and
· the elements of the offence (s66(1)) have been satisfied.
When participation must have occurred:
To be considered a party to the offence, participation must have occurred before or during (contemporaneous with) the commission of the offence and before the completion of the offence.
Principal and secondary party
A person will be a principal offender, and liable under s66(1)(a), where he or she personally satisfies the actus reus and mens rea requirements of the offence. (There may be more than one principal offender in relation to the offence committed.)
Secondary parties are those people whose assistance, abetment, incitement, counselling or procurement is sufficient under s66(1)(b),(c) or (d) of the Crimes Act 1961 to make them also liable due to their participation in the offence committed by the principal(s). This is despite the fact that the secondary party does not themselves commit that offence.
Multiple offenders
Method 1: Each offender satisfies elements of offence committed
Each of the principal offenders may, separately, satisfy the necessary
elements of the relevant offence committed, as portrayed in the example above where each of the offenders are independently guilty of an assault. In such circumstances there is no requirement to refer to s66 of the Act, despite the fact that it falls within the scope of s66(1).
Method 2: Each offender separately satisfies part of the actus reus
Under s66(1)(a) each offender may separately satisfy some part of the actus reus of the offence where their actions, when combined with the actions of the other person, satisfy the complete actus reus requirement of the offence. Their actions must also be accompanied by the requisite mens rea. These situations are true representations of joint principals working together, in that it is sufficient that each party carries out part of the actus reus and as such can be held liable.
Special relationship
Where there is a special relationship and no intervention on the part of the person who would be a party, then this might amount to approval and encouragement of the principal offender’s actions.The special relationship is also dependant on the person who would be a secondary party having a legal duty to act and a right or power of control over the principal offender.
Incites
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.
Counsels
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.
Procures
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.
Parties to a secondary offence
Section 66 crimes act 1961
Where 2 or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the
prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose.
Probable consequence
Whether an outcome is ‘known to be a probable consequence’ is a subjective appreciation on the part of the offender (person A), where they must actually foresee the likelihood that their co-offender (person B) will commit another offence (offence B) when committing the original offence (offence A) agreed by both parties.
Joint enterprise
A person charged as a party to murder will be guilty of:
Murder, where they:
· intentionally helped or encouraged it, or
· foresaw murder by a confederate, as a real risk in the situation that arose.
Manslaughter, where they:
· knew that at some stage there was a real risk of killing short of murder, or
· foresaw a real risk of murder, but the killing occurred in circumstances
different from those contemplated, or
· can be expected to have known there was an ever-present real risk of killing.
Innocent agents
Innocent agents are sometimes used by the offenders. An innocent agent is someone who is unaware of the significance of their actions.
In cases where the offenders use an innocent agent to bring about the actus reus, the innocent agent is not regarded as a participant in the offence, they are simply the mechanism. The law treats the offender as the principal in such cases.
Establishing involvement of parties
The involvement of parties may be established by:
· A reconstruction of the offence committed. This would indicate that more than one person was involved, or that the principal offender had received advice or assistance.
· The principal offender acknowledging or admitting that others were
involved in the offence.
· A suspect or witness admitting to providing aid or assistance when
interviewed.
· A witness providing you with evidence of another person’s involvement
based on their observations.
· Receiving information indicating that others were involved in the offence.
Accessory after the fact Section 71 Crimes Act 1961
An accessory after the fact to an offence is one who, knowing any person to have been a party to the offence, receives, comforts, or assists that person or tampers with or actively suppresses any evidence against him, in order to enable him to escape after
arrest or to avoid arrest or conviction.
Accessory after the fact and what needs to be proved
The elements of the offence of accessory after the fact are:
· 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.
Offence
The offence must be complete in order to be an accessory. Where the person is involved before or during the commission of the offence you should consider whether they are a party to the offence or a conspirator.
Offence “Offence” and “crime” are words that are used interchangeably in statute, and there is no material difference between them. They may be described as any act or omission that is punishable on conviction under any enactment
Knowledge must exist at the time assistance given
At the time of the assistance being given, an accessory must possess the
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
Wilful blindness
The concept of wilful blindness (intentional ignorance) should not simply be invoked because the person should have inquired into the facts, even in circumstances where the person was suspected of having involvement in an offence. To do so would create a situation where knowledge and recklessness are indistinguishable.
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.
Actus reus of an accessory after the fact
The accessory must do a deliberate intentional act (one of the five mentioned below), with the purpose of assisting the person to evade justice in one of the three ways in s71(1) – escape after arrest, avoid arrest, or avoid conviction.
They must also posses the knowledge, as discussed above.
The intentional acts are:
· receives
· comforts
· assists
· tampers with evidence
· actively suppresses evidence
These five elements define what a person must do to become an accessory after the fact. There is no requirement in law that all of the five elements are satisfied and it is sufficient where only one is. Therefore the actions performed by an accessory could be captured by one or more of the elements.
Offence must be complete
In R v Mane26, the accused was initially charged with being an accessory after the fact to murder, in that it was alleged that he gave assistance to the parties charged with the murder of another.
The assistance alleged was given after the victim had been shot and before the victim had succumbed to his injuries. Upon reflection the crown withdrew the charge and was granted leave to substitute a charge under s117(d) Crimes Act 1961, (wilfully attempting to pervert the course of justice).
Receives comforts, or assists
Receives, comforts and assists are traditional common law terms and in general are not interpreted by the Courts in their literal sense, but are regarded as expressing a general view that the accessory assisted the offender(s) to evade justice, by one means or another
Receiving or comforting
Harbouring an offender or offering them shelter can be considered receiving and/or comforting, eg hiding a prison escapee in a basement. Comforting encompasses situations where an accessory provides an offender with things such as food and clothing.
Assisting
To assist covers a significant number of situations: providing transport, acting as a look out, identifying someone willing to purchase stolen property as a receiver and deliberately providing authorities with false information as to an offender’s whereabouts. Giving advice, information, material or services to the offender is also captured.
To evade justice
In the matter of R v Gibbs27, Gibbs was convicted as an accessory after the fact to an escape made by a convicted murderer. Gibbs and the escapee were together at a hiding place before Gibbs left to uplift supplies, before returning with them for their joint use. The Court determined that the escapee was being helped by Gibbs due to Gibbs supplying provisions, despite an argument that they were for Gibbs’ own benefit. Gibbs28 highlights the act or acts done by the accessory must have helped the other person in some way to evade justice.
Tampers with or actively suppress evidence
These two elements (acts) are more explicit in that they show a requirement for some form of active conduct in respect of the evidence, ie the deliberate concealing of evidence or providing false information to police in respect of it are covered by the section, whereas silence or non-disclosure such as failing to report an offence to the authorities will not attract liability.
Tampers with evidence
Means to alter the evidence against the offender
Actively suppresses evidence
Actively suppressing evidence encompasses acts of concealing or destroying evidence against an offender.
Innocent agent
Where an innocent agent is employed by the accessory, the actions of the innocent agent will be held to be the actions of the accessory.
An acessorys intent
The intent held by the accessory when performing the act that assists the offender must be one of the three contained within the statute; to enable the offender to:
· escape after arrest
· avoid arrest
· avoid conviction.
Mere knowledge that an act is likely to assist an offender is insufficient in itself. The intent need not be the dominant reason, but it must nevertheless be present, ie where an accessory conceals evidence that would diminish their own chances of apprehension as an accessory as well as them having the intent that it would diminish the chances of the offender being caught.
Charging an accessory
137, Criminal Procedure Act 2011
Proceedings against parties to offences, accessories, and receivers
(1) This section applies to every person charged—
(a) as a party to an offence (not being the person who actually committed it); or
(b) with being an accessory after the fact to any offence; or
(c) with receiving property knowing it to have been stolen or dishonestly obtained.
Proof of the principle offence
This rule also applies to situations where the offender has pleaded guilty to the principal offence. Despite such a plea and/or a conviction having been entered, the principal offence committed must still be proved where required.
Acquittal of the offender
A person can still be convicted as an accessory after the fact despite the offender having been, or where they may be, acquitted of the offence, unless the accessory’s conviction is inconsistent with the acquittal of the original offender.
Perjury defined
Section 108, Crimes Act 1961
(1) Perjury is an assertion as to a matter of fact, opinion, belief, or knowledge made by a witness in a judicial proceeding as part of his evidence on oath, whether the evidence is given in open Court or by affidavit or otherwise, that assertion being known to the witness to be false and being intended by him to mislead the tribunal holding the proceeding.
(2) In this section the term oath includes an affirmation, and also includes a declaration made under section 13 of the Oaths and Declarations Act 1957.
(3) Every person is a witness within the meaning of this section who actually
Evidence of perjury, false oath, or false statement
Section 112, Crimes Act 1961
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.
Fabricating evidence
Every one 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.
Elements of perjury
The elements of the offence of perjury are:
· a witness making any
· assertion as to any matter of fact, opinion, belief, or knowledge
· in any judicial proceeding
· forming part of that witness’s evidence on oath
· known by that witness to be false, and
· intended to mislead the tribunal
Witness
A witness is a person who gives evidence and is able to be cross-examined in a proceeding. This includes a person who is actively engaged in the process of giving evidence and/or one who has previously given evidence. The term witness also includes a person who will give evidence.
Assertion
This is something declared or stated positively, often with no support or attempt made at furnishing evidence or proof of the assertion’s accuracy.
Matter of fact
The term “matter of fact” is used by the courts to distinguish a particular kind of information. A fact is a thing done, an actual occurrence or event, and it is presented during court proceedings in the form of witness testimony and evidence.
Opinion
Opinion is defined in s4 of the Evidence Act 2006.
Opinion, in relation to a statement offered in evidence, means a statement of opinion that tends to prove or disprove a fact.
Opinion evidence by lay witness
Section 24, Evidence Act 2006
General admissibility of opinions
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.
Belief
Belief is essentially a subjective feeling regarding the validity of an idea or set of facts. It is more than mere suspicion and less than knowledge. Belief is having faith in an idea or formulating a conclusion as the result of considering the available information.
Knowledge
Simester & Brookbanks33 opine that “Knowing” means “knowing, or
correctly believing” … the belief must be a correct one, where the belief is wrong a person cannot know something: It also means knowing or believing a set of circumstances so as to be free from doubt.
Oath affirmation and declaration
Oath-This is a declaration before a person who has authority to administer an oath, which invokes some religious belief and says that a thing is true or right. For example, a Christian would swear an oath on the Bible.
Affirmation- This is a verbal or written declaration, before a person who has authority to administer an oath, saying that a thing is true or right without reference to religious belief
Declaration- A witness under 12 years old may make a declaration, which is a promise to tell the truth.
Intention to mislead
The offence of perjury is complete at the time the false evidence is given accompanied by an intention to mislead the tribunal. There is no defence where the witness later recants and informs the tribunal of the falsity of the earlier evidence given.
Evidence of purjury, false oath, or false statement
In Taylor v Manu35 the Court held there must be something corroborating the allegation that an element of these offences occurred. The Court in R v Cleland36 highlighted that if a person may have made a previous statement that was not on oath, which is contradicted by a subsequent statement on oath, it is not sufficient evidence alone, without a confession, to establish perjury in respect of the latter statement.
Conspiring to defeat justice
Section 116, Crimes Act 1961
Every one is liable to imprisonment for a term not exceeding 7 years who conspires to obstruct, prevent, pervert, or defeat the course of justice. Conspiracy is considered under s310 of the Crimes Act 1961.
Examples of misleading justice
Examples of conspiring or attempting to mislead justice within sections 116
and 117 may include:
· preventing a witness from testifying
· wilfully going absent as a witness
· threatening or bribing witnesses
· concealing the fact an 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
You may only start a prosecution for perjury (civil or criminal), where it is recommended by the courts or you are directed to do so by the
Commissioner of Police. You may, however, begin inquiries into an
allegation of perjury without reference to the court or Commissioner of Police.
Receiving
Section 246, Crimes Act 1961
(1) Every one is guilty of receiving who receives any property stolen or obtained by any other imprisonable offence, knowing that property to have been stolen or so obtained, or being reckless as to whether or not the property had been stolen or so obtained.
What is required to be proved for receiving:
The elements of receiving are:
· act of receiving
· any property stolen, or obtained by any other imprisonable offence
· knowing that at the time of receiving the property that it had been stolen or obtained by any other imprisonable offence, or
· being reckless as to whether or not the property had been stolen or so obtained.
The act of receiving
The act of receiving requires the satisfaction of three elements:
· There must be property which has been stolen or has been obtained by an imprisonable offence.
· The defendant must have “received” that property, which requires that the receiving must be from another (you cannot receive from yourself).
· The defendant must receive that property in the knowledge that it has been stolen or illegally obtained, or being reckless as to that possibility.
When the act is complete:
If there is guilty knowledge (as described in s246) at the point that the act of receiving is complete, then the offence of receiving has been committed. It is not necessary that the receiver take personal physical custody of the property in question. It is sufficient if there is joint or sole possession or control over the property or where the person aids in concealment or disposal of the same.
Possession (R v COX)
It is not necessary that the receiver take personal physical custody of the property in question. It is sufficient if there is joint or sole possession or control over the property or where the person aids in concealment or disposal of the same.
Actual possession arises where the thing in question is in a person’s
physical custody or control. Potential possession arises when the person has the potential to have the thing in question in their control. For example, storing the thing in question at an associate’s house or through an agent.
Control over property
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 on discovering the property, he or she intentionally exercised control over it. As noted above, intent to possess the property must also be satisfied. Control over property may still be exercised by a receiver when the property is in the possession of the receiver’s agent or servant (includes an innocent agent or party). Again, the exercise of such control must be intentional.
Offence must be legally possible
It must be legally possible to commit the offence of receiving. As discussed in the ‘attempts’ chapter; where property has been restored, directly to the owner or via police acting as the owner’s agent, there can be no conviction. This because the property is no longer deemed stolen.
Property
Section 2, Crimes Act 1961
Property includes real and personal property, and any estate or interest in any real and personal property, money, electricity, and any debt, and anything in action, and any other right or interest.
Concept of title
Tile is defined by the Oxford Dictionary44 as meaning ‘a right or claim to the ownership of property’. Title or ownership of a thing is the legal right to possession of that thing.
Where property is obtained by deceptive means the offender gains both possession and title. However the type of title gained by the offender has limitations.
Voidable title
Title obtained by deception is referred to as ‘voidable title’. This means that the title can be avoided by the seller (complainant). The issue is that although the title is voidable, it is still a title.
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 deceiver’s notice, eg sending a letter or email
· advising police of the circumstances of the deception
Knowing that property to have been stolen or so obtained
Simester and Brookbanks45 suggest knowing means “knowing or correctly believing”. They further premise that “the defendant may believe something wrongly, but cannot “know” something that is false”.
Circumstantial evidence of guilty knowledge
The circumstances in which property was received may alone be sufficient to justify a finding that the property was stolen, and an inference of guilty knowledge.
The circumstances commonly relied on as evidence of guilty knowledge on the part of a receiver can often be demonstrated circumstantially, for example, by:
· 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
Doctrine of recent possession
The doctrine of recent possession applies to receiving as well as to theft. 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.
Money Laundering s243 Crimes Act
Money laundering
(1) For the purposes of this section and sections 243A, 244 and 245,— Act includes any
omission
Conceal: in relation to property, means to conceal or disguise the property, and
includes, without limitation:
(a) to convert the property from one form to another:
(b) to conceal or disguise the nature, source, location, disposition, or ownership of
the property or of any interest in the property.
Deal with: in relation to property, means to deal with the property in any manner and
by any means, and includes, without limitation:
(a) to dispose of the property, whether by sale, purchase, gift or otherwise
(b) to transfer possession of the property
(c) to bring the property into New Zealand
(d) to remove the property from New Zealand.
Interest: in relation to property, means:
(a) a legal or equitable estate or interest in the property; or
(b) a right, power, or privilege in connection with the property.
Offence: means an offence (or any offence described as a crime) that is punishable under New Zealand law, including any act, wherever committed, that would be an offence in New Zealand if committed in New Zealand.
Proceeds: in relation to an offence, means any property that is derived or realised, directly or indirectly, by any person from the commission of the offence.
Property: means real or personal property of any description, whether situated in New Zealand or elsewhere and whether tangible or intangible; and includes an interest in any such real or personal property.
meaning of money laundering
Money laundering is 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.51
There is also an internationally accepted definition that is referred to the Money Laundering Cycle52. This definition serves to assist with
understanding the process of money laundering – the three stages of the Cycle are tabled below:
Phase Description Example
Placement Cash enters the financial
system. An offender makes money
from selling cannabis and
then deposits these
proceeds into an associate’s
bank account.
Layering : Money is involved in a
number of transactions.
The associate transfers the
money into an account held
by a ‘shell’ company that
the offender is the director
of.
Integration Money is mixed with
lawful funds or integrated
back into the economy,
with the appearance of
legitimacy.
The money is declared as
revenue for the company,
tax is paid, and then the
offender pays himself
director fees or a salary out of the company account
Elements of money laundering
- in respect of any property that is the proceeds of an offence
- engages in a money laundering transaction
- knowing or believing that all or part of the property is the proceeds of an offence
- or being reckless as to whether or not the property is the proceeds of an offence
Criminal proceedings (recovery) Act 2009
Section 3, Criminal Proceeds (Recovery) Act 2009
(1) The primary purpose of this Act is to establish a regime for the forfeiture of property—
(a) that has been derived directly or indirectly from significant criminal activity; or
(b) that represents the value of a person’s unlawfully derived income.
Assets forfeiture order
An Assets Forfeiture Order (AFO) is issued by the High Court on application. This order must be issued by the court on a successful application that shows on the balance of probability that specific assets which have been acquired have been tainted by significant criminal activity.
Tained property
Section 5, Criminal Proceeds (Recovery) Act 2009
Interpretation
Tainted property
(a) means any property that has, wholly or in part, been—
(i) acquired as a result of significant criminal activity; or
(ii) directly or indirectly derived from significant criminal activity; and
Significant criminal activity
Section 6, Criminal Proceeds (Recovery) Act 2009
Meaning of significant criminal activity
(1) In this Act, unless the context otherwise requires, significant criminal activity means
an activity engaged in by a person that if proceeded against as a criminal offence
would amount to offending–
(a) that consists of, or includes, 1 or more offences punishable by a maximum term
of imprisonment of 5 years or more; or
(b) from which property, proceeds, or benefits of a value of $30,000 or more have,
directly or indirectly, been acquired or derived.
Profit forfeiture order
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.
Case study: unlawfully benefited from significant criminal activity
Whether a person benefited from the activity undertaken can be demonstrated in the case of Pulman v Commissioner of Police55.
Pulman, a pharmacist, was convicted as a party to Methamphetamine
manufacture and was subsequently the subject of a profit forfeiture order under s55 of the Criminal Proceeds (Recovery) Act 2009.
Pulman had sold significant quantities of precursor substances over several years, in the knowledge they were to be used in the manufacture of illicit drugs. Pulman claimed that the precursors were sold for cash which, after being received by him, was then secured in a cash box and allegedly used by his employer to pay wages.
Pulman argued that he had not benefited personally from the sale of the precursor substance because his employer had ultimately received all of the sales proceeds. In this case the Court held that the purpose of the forfeiture regime was not only to prevent the ability of a person to actually profit from undertaking significant criminal activity but also the “chance” that they may be able to do
so and also to deter significant criminal activity.
Assessment process for property restraint
Before preparing such an application an assessment process is required. The
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.
Such an application will require a straight forward affidavit from the officer
in charge of the file outlining:
· Officer in Charge:
- details.
· Offender(s):
- details
- charges
- criminal convictions.
· Search warrant - describe the nature of the offending discovered at or
involving the property (asset) concerned. Note: Where the value of the asset
is high you need to demonstrate that the offending was at more of a
commercial level.
· Admissions made during interview(s).
· Property:
- describe property sought to be restrained and its value
- show that offender owns, has custody or control.
What must occur before criminal proceed action can be taken
A restraining order is the first step in the asset seizure process. In the case of tainted property and benefits from crime an application made to the High Court must show reasonable grounds for belief that the property is tainted – that it has been acquired, or directly or indirectly derived, from “significant criminal activity”.
Restraining orders
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. A restraining order is valid for one year from the date on which the order is made. The court may issue an extension before the expiry of the original order. The extension is also valid for one year. The restraining order remains in force for the prescribed time or until the making or declining of an assets or profit forfeiture order, whichever is the earlier.
Suspect interview
When interviewing a suspect about money laundering or where proceeds
recovery action is to be considered, consider the following points:
· suspect’s legitimate income
· suspect’s illegitimate income
· expenditure
· assets
· liabilities
· acquisition of financial records, from banks, financing companies, loan
sharks, family trust documents
· clarification of documentary evidence located, as per above
