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Association > GOOD BULLY > Flashcards

GOOD BULLY Flashcards

Updated bully

1
Q

(MC) Conspires

A

A conspiracy does not rely on the intention of two or more people to commit an offence. It relies on them forming an agreement to do an unlawful act, or to do a lawful act by unlawful means. Where there is only the intention to commit the offence without an agreement, then no offence is committed.

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2
Q

(SA) R v Sanders

A

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

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3
Q

(MC) Withdrawing from the agreement

A

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

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4
Q

(SA) Agreement requires physical and mental faculties (Conspiracy)

A

The MENS REA (mental intent) necessary for a conspiracy is:
- an intention for those involved to agree, and
- an intention that the relevant course of conduct should be pursued by those party to the agreement
- an intention to commit the full offence. Where this intent does not exist, no crime has been committed

ACTUS REUS: the actus reus of conspiracy is the actual agreement between two or more people to carry out the illegal conduct.

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5
Q

(General) Proving Intent

A

Circumstantial evidence from which an offender’s intent may be inferred can include:
- the offenders actions and words before, during and after the event
- the surrounding circumstances
- the nature of the act itself

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6
Q

(Part of Conspiracy Liability) Two or more people

A

A person cannot conspire alone; there must be another conspirator for an offence to be committed.

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7
Q

(General) Conspiring with a spouse or partner - Section 67, CA 1961

A

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.

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8
Q

(MC) Jurisdiction - Section 7, CA 1961

A

A person who enters 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.

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9
Q

(SA) Conspiracy: Interviewing Suspects - When interviewing suspects, you should consider:

A
  • The existence of an agreement to commit an offence
  • The existence of an agreement to omit or to do something that would amount to an offence
  • The intent of those involved in the agreement
  • The identity of all people concerned
  • Whether anything was written, said or done to further the common purpose
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10
Q

(SA) Interviewing Witnesses - When interviewing witnesses, you should consider:

A
  • 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
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11
Q

(General) When is the offence of conspiracy complete?

A

It is complete with the offenders agreeing to commit an offence, and continues until they have carried out their objective or until it is abandoned. A person who later withdraws from the agreement is still guilty of conspiracy.

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12
Q

What was held in the case of ‘R v Mulcahy’ as it relates to conspiracy?

A

A conspiracy is the intention of two or more people to carry out an unlawful act or a lawful act by unlawful means. So long as such design rest on intention only, it is not indictable. Where two or more people agree to carry out the intended offence, the very plot is the act itself.

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13
Q

Three elements of an ‘attempt offence’

A
  • 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
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14
Q

General (R v Donnelly)

A

Where property has been returned to the owner or legal title to any such property has been acquired by any person, it is not an offence to subsequently receive it, even though the receiver may know that the property had previously been stolen or dishonestly obtained.

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15
Q

(General) In each case of attempt, you must prove:

A
  • The identity of the suspect(s), and
  • They intended to commit an offence, and
  • They did, or omitted to do, something to achieve their object
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16
Q

(General) When is the offence of attempt complete:

A

It is complete when the defendant commits an act that is sufficiently proximate to the intended offence, even if they then change their mind and voluntarily withdraw.

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17
Q

(SA) What constitutes a party - Section 66 (1), CA 1961.

A

Everyone is a party to and guilty of an offence who:
- Actually commits the offence; or
- Does or omits an act for the purpose of aiding any person to commit the offence; or
- Abets any person in the commission of the offence; or
- Incites, counsels or procures any person to commit the offence.

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18
Q

(General) R v Renata

A

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 in one of the ways contemplated by Section 66(1).

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19
Q

(General) Secondary Offenders

A
  • Those who assist the principal offender either before or during the commission of the offence and their liability generally lies within the scope of aids, abets, incites, counsels or procures
  • Where the act was part of the planning (get away car), then this is deemed to be a principal party
  • If they assist after the offence is complete, then it is accessory
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20
Q

(SA) Define ‘Aids’

A

To aid means to assist in the commission of the offence, whether physically or by giving advice and information.

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21
Q

(General) Examples of assistance

A
  • Keeping a lookout for someone doing a burglary
  • Giving a screwdriver to someone interfering with a motor vehicle
  • Telling an associate when a neighbour is away to commit a burglary
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22
Q

(SA) Define ‘Abets’

A

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

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23
Q

(MC) ‘Incites’, ‘counsels’ or ‘procures’

A

These three categories enable someone to be convicted as a party and takes place before the offence is in fact carried out, generally does not warrant their presence at the scene at the time of the incident.

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24
Q

(SA) Define ‘Incites’

A

To incite means to spur on, stir up, stimulate, urge, rouse or animate a person to commit the offence.

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25
Q

(SA) Define ‘Counsels’

A
  • Counsels means to intentionally instigate the offence by advising a person(s) the best way to commit an offence or to plan it for another person.
  • It is sufficient that the counsellor knows that an offence is intended but does not need to know the target address or the victims
26
Q

(SA) Define ‘Procures’

A
  • Procurement is setting out to see that something happens and taking appropriate steps to ensure that it does.
  • Procurement may be carried out by fraud, persuasion, words or conduct, such as an offer of payment
27
Q

(SA) Section 66(2), CA 1961 - Elements to ‘Party to a secondary offence’

A

Where 2 or more people form a common intention to commit an offence, and to assist each other, each of them is party to every offence committed by the other in the prosecution of the common purpose.

28
Q

(SA) Establishing involvement of parties

A

The involvement of parties may be established by:
- A reconstruction of the offence committed indicating another person was involved or the principal offender had received 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
- Receiving information indicating that others were involved

29
Q

(General) What needs to proven for Accessory?

A
  • That the person who is received, comforted or assisted by the accessory is a party to an offence that has been committed
  • That at the time of receiving, comforting or assisting that person, the accessory knew that the person was party to the offence
  • That the accessory received, comforted or assisted that person or tampered with or actively suppressed any evidence against that person
  • That at the time of receiving, comforting or assisting, the accessory’s purpose was to enable that person to escape after arrest or to avoid arrest or conviction
30
Q

(SA) What are the intentional acts, ‘actus reus’ of an accessory after the fact?

A
  • Receives
  • Comforts
  • Assists
  • Tampers with evidence
  • Actively suppresses evidence
31
Q

(General) R v Crooks - Knowledge

A

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. Mere suspicion of their involvement in the offence is insufficient.

32
Q

(SA) Knowledge must exist at the time of assistance given:

A

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 to that offence

Where this knowledge comes about after the assistance has been given, they are not liable as an accessory.

33
Q

(SA) Tampers with evidence:

A

Means to alter the evidence against the offender.
E.g., modifying an offenders phone records to conceal communications that might implicate them.

34
Q

(SA) Actively suppresses evidence:

A

Actively suppressing evidence encompasses acts of concealing or destroying evidence against an offender.
E.g., burning clothing used in an offence.

35
Q

(SA) Witness

A

A witness is a person who:
- Gives evidence and is able to be cross-examined in a proceeding
- A person who is actively engaged in the process of giving evidence
- A person who has previously given evidence
- Also includes a person who will give evidence

36
Q

(General) Simester & Brookbanks

A

Knowing means knowing or correctly believing… the belief must be a correct one, where the belief is wrong, a person cannot know something.

37
Q

(MC) Evidence of perjury, false oath, or false statement - R v Cleland

A

The court held in ‘R v Cleland’ 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.

38
Q

(SA) Examples of ‘Misleading Justice’ within sections 116 and 117:

A
  • Preventing a witness from testifying
  • Willfully going absent as a witness
  • Threatening or bribing a witness
  • Threatening or bribing jury members
  • Intentionally giving Police false information to obstruct their inquiries
    -Supplying wrong information to probation officers
39
Q

(MC) Investigative Procedure (Misleading Justice)

A

You may only commence 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, being inquiries into an allegation of perjury without reference to the court of Commissioner of Police.

40
Q

(General) Possession - R v Cox:

A

Possession involves two elements. Physical and Mental.
Physical: actual or potential physical custody or control.
Mental: combination of knowledge and intention.

41
Q

(SA) Control over property- Receiving

A

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.

42
Q

(General) Four Elements for Possession for Receiving -
R v Cullen

A

There are four elements of possession for receiving:
- Knows where the item is
- Knows that the item has been stolen
- Actual or potential control of the item
- An intention to exercise that control over the item

43
Q

(SA) Concept of Title

A

‘A right or claim to the ownership of property’. Title or ownership of property is the legal right to possession of that property.

44
Q

(SA) Voidable Title

A

‘Voidable title’ is title obtained by deception This means that the title can be voided by the seller (complainant). Although the title is voidable, it is still a title.

Until the title is voided, the person committing the deception has title to the property concerned and is able to confer this title on to anyone who subsequently acquires the property from him/her in good faith.

45
Q

(SA) To void title the person deceived must:

A
  • Communicate directly with the receiver, or
  • Take all reasonable steps possible to bring it to the notice of the deceiver, or
  • Report the deception to Police
46
Q

(SA) Circumstantial Evidence of ‘Guilty Knowledge’

A
  • Purchase of goods at a gross undervalue
  • Secrecy in receiving the property
  • Receipt of goods at an unusual place
  • Receipt of goods at an unusual time
  • Concealment of property to avoid discovery
  • Removal of identifying features
  • Lack of original packaging
  • Absence of receipt where receipt would usually be issued
47
Q

(SA) Doctrine of Recent Possession

A

Basically, if someone has something stolen and you end up with it soon after, without a good reason, it’s assumed you might be the thief or involved in the crime somehow.

48
Q

(MC) Money Laundering - Interest in property:

A

In relation to property, means:
- A legal or equitable estate or interest in the property; or
- A right, power, or privilege in connection with the property

49
Q

(MC/SA) Money Laundering - Section 244 and 245:

A

Everyone is liable to imprisonment for a term not exceeding 5 years:
- who obtains or has in his/her possession any property
- With intent to engage in a money laundering transaction in respect of that property; and
- 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.

50
Q

(SA) Meaning of ‘Money Laundering’

A

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
Q

(SA) Elements of Money Laundering

A
  • 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
52
Q

(SA) Criminal Proceeds (Recovery) Act 2009 - Introduction

A

When asset recovery legislation was introduced, it’s intent was to facilitate action in stripping assets and wealth from individuals and groups involved in organised crime.

53
Q

(SA) Section 3(1) CPRA 2009 - Purpose

A

Section 3(1) - The primary purpose is to establish a regime for the forfeiture of property:
- That has been derived from significant criminal activity, or
- represents the value of a person’s unlawfully derive income

54
Q

(SA/MC) Tainted Property

A

Tainted property:
(a) means any 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

55
Q

(SA/MC) Section 7, CPRA 2009 - Unlawfully benefitted from criminal activity

A

In this act, unless the context otherwise requires, A person has unlawfully benefited from significant criminal activity if the person has knowingly, directly or indirectly, derived a benefit from significant criminal activity.

56
Q

(MC) What must occur before Criminal Proceeds action can be taken?

A

An application made to the High Court must show ‘reasonable grounds for belief’ that the property is tainted - that is has been acquired, or directly or indirectly derived, from ‘significant criminal activity’

57
Q

(MC/SA) Significant Criminal Activity

A

This definition outlines significant criminal activity as actions that, if treated as criminal offence’s, would involve offence’s punishable by at least a five-year prison term or result in the acquisition of property, proceeds, or benefits worth $30,000 or more.

58
Q

(General) CPRA 2009 - Restraining Orders

A

Only members of the Asset Recovery Unit may apply for restraining orders, assets forfeiture orders and profit orders.

59
Q

(General) CPRA 2009 - In relation to an Instrument of Crime

A

Two criteria must be met:
Either the respondent must have been charged with a ‘qualifying instrument forfeiture offence” (or the court must be satisfied it has ‘RGTB’ that the respondent will be so charged within 48 hours), and the court must be satisfied that is has ‘RGTB’ that the property which will be the subject of the order was used to commit, or to facilitate the commission of the “qualifying instrument forfeiture offence”

60
Q

(SA) CPRA 2009 - Suspect Interview

A

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
-

61
Q

(SA) Section 3(2), CPRA 2009 – Purpose

A

Section 3(2) - The criminal proceeds and instruments forfeiture regime established under this Act propose to:
- Eliminate the chance for people to profit
- Deter significant criminal activity
- Reduce the ability of criminals to continue or expand criminal enterprise
- Deal with matters associated

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