important bits Flashcards
explain the liability of a person who agrees to commit an offence with another person but then withdraws from the agreement before the completion of the intended offence?
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
Case law has established that the following three conditions 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 omission was sufficiently close
List 4 points to cover when taking a statement from a witness to conspiracy?
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
List 5 point to cover when interviewing conspiracy suspects?
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
Why is laying both a substantive charge and a related conspiracy charge often undesirable?
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
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
R v Donnelly
Where stolen 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
An attempt is complete even when the defendant changes their mind or makes a voluntary withdrawal after completing an act that is sufficiently proximate 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; eg police interruption
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 the intended theft
When are you unable to charge someone with an attempt to commit an offence?
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, eg demands with menace
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
Where there is more than one offence committed, the elements must be applied to each offence separately
Define what “aid” means?
To assist in the commission of the offence, whether physically or by giving advice and information.
Define what “abets” means?
Abets means to instigate or encourage; that is, to urge another person to commit the offence.
Define what “incite” means?
To incite means to rouse, stir up, stimulate, animate, urge or spur on a person to commit the offence
Define what “counsels” means?
Counsel means to intentionally instigate the offence by advising a person on how best to commit an offence, or planning the commission of an offence for another person
Define what “procures” means?
Procurement is setting out to see that something happens and taking the appropriate steps to ensure that it does
In what 5 ways can the involvement of parties be established?
Reconstruction of the offence. This would indicate that more than one person was involved, or that the principal offender has received advice or assistance.
Offender acknowledging or admitting that others were involved in the offence.
Suspect or witness admitting to providing aid or assistance when interviewed.
Witness providing you with evidence of another person’s involvement based on their observations.
Receiving information indicating that others were involved in the offence.
Define receives, comforts or assists?
A general view that the accessory assisted the offender(s) to evade justice, by one means or another.
Define 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
Define assisting?
Providing transport
Acting as a look out
Identifying someone willing to purchase stolen property as a receiver
Deliberately providing authorities with false information as to an offender’s whereabouts
Examples of conspiring or attempting to mislead justice within sections 116 and 117 may include
Threatening or bribing witnesses
Willfully going absent as a witness
Intentionally giving police false information to obstruct their inquiries
Supplying false information to probation officers
Threatening or bribing jury members
When is the act of receiving complete?
As soon as the offender has, either exclusively or jointly with the thief or any other person, possession of, or control over, the property or helps in concealing or disposing of the property.
Define property
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
When is theft committed?
For tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved.
What does one need to do in order to avoid title?
Communicate directly with the deceiver
Advise police of the circumstances of the deception
Take all reasonable and possible steps to bring it to the deceiver’s notice, eg sending a letter, email
List circumstantial evidence of guilty knowledge as it relates to receiving?
Receipt of goods at an unusual time Receipt of goods at an unusual place Receipt of goods in an unusual way Possession of recently stolen property Nature of the property Purchase at a gross undervalue Secrecy in receiving the property Concealment of property to avoid discovery Removal of identifying marks or features Steps taken to disguise property, removal/altering of serial numbers
What is meant by the doctrine or recent possession?
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
Define ‘conceal’ in relation to property
Means to conceal or disguise 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
What is meant by an offence?
Any act or omission that is punishable on conviction under any enactment, and are demarcated into four categories described in s6, CPA 2011.
Define tainted property
Tainted property means:
(a) 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
(b) includes any property that has been acquired as a result of, or directly or indirectly derived from, more than 1 activity if at least 1 of those activities is a significant criminal activity
What is the meaning of significant criminal activity?
(1) Offending -
(a) that consists of, or includes, 1 or more offences punishable by a maximum term of imprisonment of 5 yrs 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
Who may apply for restraining orders?
Only members of the ARU may apply for restraining orders (apart from those relating to instruments of crime), assets forfeiture orders and profit orders
What do you need to consider when interviewing suspects of money laundering?
Clarification of documentary evidence located, as per below
Liabilities
Acquisition of financial records, from banks, financial companies, loan sharks, family trust documents
Assets
Suspect’s legitimate income
Suspect’s illegitimate income
Expenditure
When is an act physically or factually impossible?
An act is physically or factually impossible if it is an offence but the suspect is unable to commit it due to ineptitude, insufficient means, interruption or any other circumstances beyond his control
What is the Mens Rea (mental intent) necessary for conspiracy?
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
Describe what is meant by sufficiently proximate to the full offence?
Generally, to prove an attempt the accused must have done or omitted to do some act that is sufficiently proximate to the full offence.
Effectively the accused must have started to commit the full offence and have gone beyond the phase or mere preparation. This is the ‘all but’ rule.
When is the offence of 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 involvement by the parties involved in the agreement is required.
Define an offence as it relates to money laundering?
Means an offence that is punishable under NZ law, including any act, wherever committed, that would be an offence in NZ if committed in NZ
What is meant by the doctrine of recent possession
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
Circumstantial evidence from which an offenders 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
Define tampers with evidence
Tampers means to alter the evidence against the offender
Define actively suppresses evidence
Actively suppressing evidence encompasses acts of concealing or destroying evidence against an offender
