Other

Question 1

Defence for conspiring?

Answer 1

Under Section 310(3)

It is a defence to prove that the doing or omission of the act to which the conspiracy relates was not any offence under the law of the place where it was, or was to be, done or omitted

Example:
Two people in New Zealand conspire to each take on a second wife in Saudi Arabia, knowing that such activity would be unlawful in New Zealand if done here (bigamy). They are not subject to conviction in New Zealand as they have a defence to the charge. This is because Saudi Arabian law (Sharia Law) permits a person to have up to four wives.

Question 2

What happens if you withdraw from the agreement?

Answer 2

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.

Example:
Three people intend to commit a service station robbery. The first two parties agree that they, collectively, will commit the offence while the third reconsiders and withdraws before the agreement is made. The first two are co-conspirators but because the third withdrew before the agreement was made the third party would not be liable.

Question 3

When is conspiring complete?

Answer 3

The offence is complete on the agreement being made with the required intent. No further progression towards the completion of the offence nor further involvement by the parties involved in the agreement is required.

Question 4

What is the mens rea element of conspiracy?

Answer 4

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 offenders’ mental intent must be to commit the full offence. Where this intent does not exist no crime has been committed.
A person does something “intentionally” if they mean to do it; they desire a specific result and act with the aim or purpose of achieving it.

Question 5

What is the actus reas element of conspiracy?

Answer 5

The actus reus of conspiracy is the actual agreement by two or more people to carry out the illegal conduct. There is no requirement for the conspirators to actually carry out the illegal conduct on which the agreement is based. If this were the case it would likely equate to an attempt or the actual commission of the intended offence.

The physical acts, words or gestures used by the conspirators in making their agreement is what is to be considered the actus reus of a conspiratorial agreement (whether this is an express or implied agreement).

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

Question 6

Does knowledge constitute conspiracy?

Answer 6

Mere passive presence or knowledge of an intention does not amount to being a party to the conspiracy. If “A” plans to commit an offence and “B” simply knows that “A” has a plan, or was present when “A” discussed the plan, this is not enough for the charge of conspiracy.

Question 7

Can you conspire with a spouse or partner?

Answer 7

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.

Question 8

Can you conspire by yourself?

Answer 8

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

Question 9

What is jurisdiction for conspires

Answer 9

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.

In R v Sanders it was deemed sufficient if one act or omission forming part of the offence or “any event necessary to the completion of any offence” occurs in New Zealand.

Question 10

What are some examples of offences that have their own provisions for conspiracy

Answer 10

treason, piracy, making false accusations, defeating justice and murder.

Conspiring in relation to controlled drugs pursuant to s6(2A) of the Misuse of Drugs Act 1975

310 applies to all other offences

Question 11

What are four things your ask of a witness in relation to conspires?

Answer 11

• the identity of the people present at the time of the agreement
• with whom the agreement was made
• what offence was planned
• any acts carried out to further the common purpose.

Question 12

What is required to establish from suspects in relation to conspires?

Answer 12

• 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.

Question 13

Why is laying both a substantive charge and a related conspiracy charge not dessirable?

Answer 13

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.

Example:
Where a murder is actually committed you charge your suspect with the substantive offence (murder), rather than conspiracy (to murder).

Question 14

What are the three elements of attempts?

Answer 14

• 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.

Question 15

Can you have attempted manslaughter?

Answer 15

It is generally accepted that there is no offence of attempted manslaughter. This is because attempt under section 72 requires an intent to bring about a
specific object. With manslaughter death is unintended.

It is therefore a contradiction in terms to hold that someone attempted to bring about death as an unintended consequence. If there was an intention to cause death, the appropriate charge is attempted murder.

Question 16

What are examples of attempts as per the American Model Penal Code

Answer 16

• lying in wait, searching for or following the contemplated victim
• enticing the victim to go to the scene of the contemplated crime
• reconnoitring the scene of the contemplated crime
• unlawfully enterring a structure, vehicle or enclosure in which it is
contemplated that the crime will be committed
• possessing, collecting or fabricating materials to be employed in the
commission of the crime
• soliciting an innocent agent to engage in conduct constituting an element
of the crime

Question 17

What questions can be asked to assess an attempt?

Answer 17

• Has the offender done anything more than getting himself into a position from which he could embark on an actual attempt? or

• Has the offender actually commenced execution; that is to say, has he
taken a step in the actual crime itself?

If the answer to either question is “yes” then we can say there has been an attempt as a matter of law. If not, the conduct can be classed as preparation and is not an offence.

Simester and Brookbanks

Question 18

Can you be convicted of an attempt when it is legally impossible?

Answer 18

Where the completed act is legally impossible – that is, where the completed act would not be an offence – the suspect cannot be convicted of an attempt, even where they may have had criminal intent.

The suspect may believe that the completed act is illegal, but be mistaken in their belief that the completed act is illegal. That is, there must be an attempt to commit an actual offence, not an attempt to do something that, contrary to the person’s belief at the time, does not amount in law to an offence. For example, it is not an offence to attempt to sell the hallucinatory plant, Datura, in the mistaken belief that possession of it is illegal.

Question 19

When is an attempt complete?

Answer 19

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 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.

Question 20

Can you attempt to commit an attempt?

Answer 20

There is no such thing as an attempt to commit an attempt, though as a
general principle, an attempt to commit an offence is in itself an offence.

Question 21

Whats the role of judge and jury in relation to attempts?

Answer 21

The judge must decide whether the defendant had left the preparation stage
and was already trying to effect completion of the full offence.
The defendant need not have taken all steps necessary towards completing
the full offence. If the judge decides that the defendant’s actions were more
than mere preparation, the case goes to the jury.

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.
If the jury finds that the actus reus has been established, it must also find the
same in respect of the mens rea – that is, the prosecution’s evidence must
also convince the jury beyond reasonable doubt that the defendant intended
to commit the full offence.

Question 22

When can you NOT charge with an attempt?

Answer 22

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.

Question 23

Can you drop a substantive charge to an attempt and vice versa?

Answer 23

Where a defendant is charged with the full offence, but is found guilty of
only the attempt, they can be convicted of the attempt (s149 Criminal
Procedure Act 2011).

Where a defendant is charged with an attempt, yet the full offence is proved,
the defendant can only be convicted of the attempt (s150 Criminal Procedure
Act 2011).

Question 24

What is the penalty for attempts?

Answer 24

Under section 311

Every one who attempts to commit any offence in respect of which no punishment
for the attempt is expressly prescribed by this Act or by some other enactment is
liable to imprisonment for a term not exceeding 10 years if the maximum punishment
for that offence is imprisonment for life, and in any other case is liable to not more
than half the maximum punishment to which he would have been liable if he had
committed that offence.

Question 25

What is offence committed other than offence intended

Answer 25

Crimes Act 1961, Section 70

(1) Every one who incites, counsels, or procures another to be a party to an offence of which that other is afterwards guilty is a party to that offence, although it may be committed in a way different from that which was incited, counselled, or suggested.

(2) Every one who incites, counsels, or procures another to be a party to an offence is a party to every offence which that other commits in consequence of such inciting, counselling, or procuring, and which the first-mentioned person knew to be likely to be committed in consequence there of.

Question 26

What do you need to prove for parties?

Answer 26

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.

Question 27

When must you participate to become a party

Answer 27

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.

Someone who provides assistance to either the principal or secondary
offender following the commission of an offence becomes an accessory after
the fact.

Question 28

What is a secondary offender?

Answer 28

Those who assist the principal offender(s) either before or during the
commission of an offence are considered secondary offenders and thus their
liability generally lies within the scope of s66(1)(b), (c) or (d).

To be a party to an offence, the acts of the secondary offender must be
earlier in time or contemporaneous with the acts of the principal offender(s).
Whether the acts are contemporaneous is dependant on the circumstances of
each case.

The secondary party does not necessarily have to be present when the
offence is committed. For example, a person who supplies a key or
deliberately leaves a door unlocked for a burglar is a party even when they
are not present at the scene when the burglary is committed.

Question 29

What is passive acquiescence in abetting?

Answer 29

Similar to “aiding by omission”, discussed above, abetting or encouragement may take the form of passive acquiescence where there is a duty to act. Merely being present at the scene of an offence and witnessing the offence while doing nothing to prevent it does not create liability on the part of that person unless, in the circumstances, there is a special relationship between that person and the principal offender or where they owe a legal duty to the victim or to the general public.

Question 30

What is Probable consequence in relation to Parties?

Answer 30

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.

This does not require them (person A) to think that the commission of the
offence is more likely than not. It will be sufficient where it can be
demonstrated that they (person A) knew there was a substantial or real risk
or that the offence (offence B) could well happen.

Question 31

What are the two qualifications for probable consequence?

Answer 31

Qualification 1
There is no requirement that person A knows or foresees the precise manner
in which offence B is to be committed by person B. Person A need only
realize that an offence of that type is probable.

Qualification 2
There is no requirement that person A’s foresight of offence B include any
appreciation of the consequences of the physical elements of the offence
committed (offence B), but for which no mens rea element is required

Question 32

What are examples of being a party to murder or manslaughter?

Answer 32

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 partner 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.

Question 33

What is an innocent agent?

Answer 33

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.

An innocent agent cannot be convicted as a secondary party.

Example:
An offender prepares a poison and puts it in a wine glass before handing it to
a waiter for it to be given to the intended victim. Despite it being the waiter
who gives the victim the poison, it is the offender who is responsible for the
offence committed.

Question 34

How do you establish the involvement of parties?

Answer 34

The involvement of parties may be established by:
* A reconstruction of the offence committed. (Couldnt do it alone)
* The principal offender admitting others were present
* A suspect or witness admitting to providing aid or assistance when
interviewed.
* A witness gives a statement that saw other people.
* Receiving information indicating that others were involved in the offence.

Question 35

What is the penalty for secondary offence parties?

Answer 35

Crimes Act 1961, Section 311(2)

Attempt to procure commission of offence

Every one who incites, counsels, or attempts to procure any person to commit any offence, when that offence is not in fact committed, is liable to the same punishment as if he had attempted to commit that offence, unless in respect of any such case a punishment is otherwise expressly provided by this act or by some other enactment.

Question 36

What needs to be proved for accessory after the fact

Answer 36

• 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.

Question 37

When must an accessory know that person A was a party to an offence?

Answer 37

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

Question 38

What are the 5 actus reus of accessory after the fact?

Answer 38

The intentional acts are:
* receives
* comforts
* assists
* tampers with evidence
* actively suppresses evidence

Question 39

Can you have indirect assistance with accessorys?

Answer 39

There is no requirement that the offender (person A) is directly assisted by
the accessory (person B).

Example:
Person A commits an offence and is assisted directly by another accessory
(person C). Person B assists person C directly, but does not directly assist
person A. Despite this distance, person B is still an accessory after the fact to
person A.

Question 40

Can you attempt to be an accessory

Answer 40

It is possible to be convicted of attempting to be an accessory after the fact.

Question 41

What are the three intents that the offender must have to be an accessory?

Answer 41

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.

Question 42

Can you charge for accessory alone?

Answer 42

As per s137, a charging document may be laid whether or not any party to
the principal crimes is charged, convicted or otherwise amenable to justice.
An accessory may be charged alone or jointly along with any party to the
principal crime.

Question 43

Do you have to prove the original offence for an accessory?

Answer 43

An accessory after the fact may insist that the principal offence be proved,
this despite any guilty plea entered or conviction recorded against the
principal offender.

Question 44

What are three ways of giving evidence?

Answer 44

(a) in the ordinary way as described in s83; (personally in court or by
affidavit) or
(b) in an alternative way, as provided for by s105; (CCTV, DVD, screens
etc.) or
(c) in any other way provided for under this Act or any other enactment.

Question 45

Is corroboration required for Perjury?

Answer 45

Yes

It is not necessary in a criminal proceeding for the evidence on which the
prosecution relies to be corroborated, except with respect to the offences
involving perjury, false oaths and false statements or declarations.

121 of Evidence Act

Question 46

Examples of misleading justice?

Answer 46

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

Question 47

What is the investigative procedure for conspiring to defeat justice?

Answer 47

• Conspiring to defeat the course of justice encompasses both civil and criminal proceedings.
• It is no defence to a charge of conspiring to defeat the course of justice that
  the aim of the offender was to secure a just result, or one they believed was
  right.
• In situations where you are unable to establish a conspiracy pursuant to
  section 116, the evidence may reveal a wilful attempt to obstruct, prevent,
  pervert or defeat the course of justice subject to section 117.
• 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, begin inquiries into an
  allegation of perjury without reference to the court or Commissioner of
  Police.
• Complaints of perjury can arise in two ways:
  − An individual may complain that someone has perjured themselves.
  − A Judge may state or direct in a court recommendation that the police
  undertake inquiries into the truth of the evidence given by a witness.

Question 48

When may you start prosecution for perjury?

Answer 48

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.

Question 49

What are the three elements that must be present for receiving?

Answer 49

• 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.

Question 50

What is voidable title?

Answer 50

Title obtained by deception is referred to as ‘voidable title’. 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.

This means that where an innocent party buys property that has been
obtained by deception and before the title has been voided, the innocent
purchaser has acquired good title to the property.

Question 51

How do you void title?

Answer 51

In order to void title, the complainant must:

• bring a civil claim seeking an order of the Disputes Tribunal or Small
  Claim tribual and seek a ruling from the circumstances provided.

Question 52

What is the effect of Section 246(4) for receiving?

Answer 52

By virtue of s246(4), property is no longer deemed stolen, it cannot be
‘received’ once that property has been re-acquired by the legal owner or
where legal title has been acquired by another person. This includes
situations where the receiver is aware that the property was stolen or
obtained by any other imprisonable offence.

On the contrary, where the title has already been voided prior to being
transferred to a third party, it leaves the deceiver with possession only. Thus,
the deceiver is unable to confer title to another. In this situation the
subsequent receiving of that property is an offence.

Question 53

What is circumstantial evidence of guilty knowledge?

Answer 53

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
* receipt of goods at an unusual time
* receipt of good in an unusual way
* concealment of property to avoid discovery
* removal of identifying marks or features
* steps taken to disguise property, ie removal / altering of serial numbers,
painting
* lack of original packaging
* type of person goods received from
* mode of payment
* absence of receipt where receipt would usually be issued
* false statements as to the source of the goods
* false statements as to the date of acquisition
* nature of explanation given, eg false or inconsistent or no reasonable
explanation
* false denial of knowledge, existence etc.

Question 54

What is the doctrine of recent possession?

Answer 54

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 evidence to justify a belief 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.

The doctrine applies only to cases where a defendant is found in possession
of property recently stolen or obtained dishonestly.

The doctrine of recent possession has no application to the concealing or
disposition of property.

Whether possession is ‘recent’ is dependant on:
* the nature of the property, and
* the surrounding circumstances.

Question 55

What are examples where Police become an agent to the restoration of stolen property?

Answer 55

Police are deemed to have an implied authority from the owner to recover
and restore property where a complaint is lodged. This means that police
possession of recovered property also equates to restoration of that property
to the rightful owner.

It is the subject of debate as to when there has been a restoration of that
property to the owner, for example:

• Inspection and recovery of a stolen car by police is deemed to constitute a
  restoration of that car to the owner (meaning it is no longer stolen).
• Once stolen property has been identified (recovered) by police, it is then
  legally impossible to commit the offence of receiving or attempting to
  receive (give consideration to a charge of conspiracy to receive).
• Police surveillance or observations of stolen property, such as a vehicle in
  transit or within a thief’s possession, without police assuming either
  possession or control, in order to apprehend a receiver, might not constitute a restoration of property. Such mere observations might not equate to restoration, but rendering the vehicle immobile may.

Each case will be decided on its particular facts.

Question 56

When is the act of receiving complete?

Answer 56

The act of receiving is complete once the defendant has:
* either exclusively or jointly with the thief or any other person
* possession or control of the property, or
* has assisted in the concealment or disposition of the property
* if there is guilty knowledge at that point, the offence is complete.

Question 57

How can possession be established for receiving?

Answer 57

Possession can be established by showing that the property is:
* in the immediate physical custody of the receiver, or
* at a location, over which the receiver has control (such as their place of business or
private residence).

Question 58

What is the defence to a charge of money laundering

Answer 58

Crimes Act 1961, section 245

(1) Section 243 applies to an act that has occurred outside New Zealand and that is
alleged to constitute an offence resulting in proceeds only if—
(a) the act was an offence under the law of the place where and when it occurred;
or
(b) it is an act to which section 7 or 7A of this Act applies; or
(c) an enactment provides that the act is an offence in New Zealand, and no
additional requirement exists for the act to be an offence in the place where
and when it occurred.

(2) If a person is charged with an offence under section 243 and
subsection (1)(a) applies, it is to be presumed, unless that person puts the matter at
issue, that the act was an offence under the law of the place where and when it
occurred.]

Question 59

What is the money laundering cycle?

Answer 59

1. Placement
   Cash enters the financial system.
   Example:
   An offender makes money from selling cannabis and then deposits these proceeds into an associate’s bank account.
2. Layering
   Money is involved in a number of transactions.
   Example:
   The associate transfers the money into an account held by a ‘shell’ company that the offender is the director of.
3. Integration
   Money is mixed with lawful funds or integrated back into the economy, with the appearance of legitimacy.
   Example:
   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.

Question 60

What is section 3 of the criminal proceeds (recovery) act 2009

Answer 60

(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.

(2) The criminal proceeds and instruments forfeiture regime established under this Act
proposes to—
(a) eliminate the chance for persons to profit from undertaking or being associated
with significant criminal activity; and
(b) deter significant criminal activity; and
(c) reduce the ability of criminals and persons associated with crime or significant
criminal activity to continue or expand criminal enterprise; and
(d) deal with matters associated with foreign restraining orders and foreign
forfeiture orders that arise in New Zealand.

Question 61

Who orders an assets forfeiture order?

Answer 61

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.

Question 62

What is tainted property?

Answer 62

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

(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

Question 63

How many years of imprisonment must the offence be to qualify for instrument forfeiture?

Answer 63

Qualifying instrument forfeiture offence

(a) Means an offence punishable by a maximum term of imprisonment of 5 years
or more; and

(b) Includes an attempt to commit, conspiring to commit, or being an accessory to
an offence if the maximum term of imprisonment for that attempt, conspiracy,
or activity is 5 years or more.

Question 64

What is significant criminal activity?

Answer 64

(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.

Question 65

What does the assessment process determine in asset recovery?

Answer 65

• 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.

Question 66

Who can apply for a restraining order?

Answer 66

The Criminal Proceeds (Recovery) Act 2009 empowers the Commissioner
of Police to apply for restraining orders, assets forfeiture orders and profit
orders. The Commissioner has delegated these functions solely to members
in Asset Recovery Units.

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.

They are valid for one year

Question 67

What must you determine when interviewing a suspect for recovery and money laundering?

Answer 67

• 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

Question 68

What is money laundering?

Answer 68

Money laundering is the process by which income and assets derived from
illegal activity are converted into or disguised as apparently legitimate
income.

Question 69

What are reasons that illicit proceeds are money laundered?

Answer 69

Illicit proceeds may be laundered to avoid detection of criminal activity, to
preserve the fruits of crime, or to further a criminal enterprise. The essence
of the activity is concealment.