Q & A Flashcards
The mens Rea, mental intent necessary for conspiracy is?
The offender’s mental intent must be to commit the full offence. Where this intent does not exist, no crime has been committed.
Withdrawing From an Agreement (Conspiracy)
A person withdrawing from an 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.
When a Conspiracy ends - R v Sanders
A conspiracy does not end with the making of the agreement. The conspiratorial agreement continues in operation and therefore in existence until it is ended by completion of its performance or abandonment in any other manner by which agreements are discharged.
Interviewing witness and suspects in a Conspiracy Investigation
Witnesses: Interview and obtain statements form witnesses covering:
- Identity of the people present at 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 the agreement to commit the 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 the people concerned where possible
- Whether anything was written, said or done to further the common purpose.
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 affected.
Anything a conspirator or party to a joint charge says or does to further the common purpose is admissible against others involved, this being an exception to the hearsay rule and as such conspirators should be jointly charged. However this does not include explanations made after the common purpose is carried out. That explanation is evidence only against the person making it.
What must be proved - Attempts
- The identity of the suspect
- That they intended to commit an offence AND
- They did, or omitted to do, something to achieve that
Several Acts Together May Constitute an Attempt
Several acts together may constitute an attempt, ‘his actions need to be considered in isolation, sufficient evidence of his intent was available from the events leading up to that point.
Acts must be 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 of mere preparation. This is the ‘all but’ rule.
The Test for Proximity
The point at which an act of mere preparation may become an attempt:
- 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?
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.
NOT a Defence to Attempts
- Offender was prevented by some outside agent from doing something that was necessary to complete the offence, e.g. interruption by Police
- Offender failed to complete full offence due to ineptitude, inefficiency, or insufficient means
- Offender was prevented from committing the crime because an intervening event made it physically impossible, e.g. removal of property before theft
Unable to Charge With Attempt
- The criminality depends on recklessness or negligence, e.g. manslaughter
- An attempt to commit an offence is included within the definition of that offence, e.g. assault
- The offence is such that the act has to have been completed in order for the offence to exist at all. E.g. demands with menace
Parties to Offences
Section 66 CA 1961
Everyone is a party to and guilty of an offence who
- actually commits the offence
- does or omits 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 commit the offence
Define Police V Larkins?
Whilst it is unnecessary that the principal should be aware that he or she is being assisted, there must be proof of actual assistance.
The mere commission of an act intended to have that effect is insufficient.
Absence of knowledge by the principal that is being assisted removes a common foundation for finding of actual assistance, namely that the principal was unable to proceed with his enterprise with the additional confidence gained because his accomplice was on the lookout for unwanted intervention.
R v Renata - Multiple Offenders
Three offenders beat the victim to death in the car park of a tavern. The prosecution was unable to establish which blow was the fatal one or which of the 3 offenders administered it.
The court held that there where the principal offender cannot be identified, it is sufficient to prove that each individual accused must have either been the principal or a party in one of the ways contemplated in s66.
What are main points in R v Renata?
- Each offender satisfies the ingredients of the offence committed.
- Each offender separately satisfies the actus reus
Parties to Offences - Legal Duty
An army sergeant who watches a subordinate assault another person and does nothing to prevent it, would be liable as a secondary party to the assault. This is because the sergeant has a power of control over the subordinate and a lawful duty to prevent such incidents and intervene,
Accessory After The Fact - Knowledge Must Exist at the Time the Assistance is Given
An accessory must process the knowledge at the time of the assistance given, that:
- An offence has been committed AND
- The person they are assisting was a party (principal or secondary) to that offence
Evidence of Perjury, False Oath, or False Statement
Section 112 - no one shall be convicted of perjury, or of any offence against section 110
Section 111 - On the evidence of one witness only, unless the evidence of that witness is corroborated in some material particular by evidence implicating the accused
In relation to the offence of Perjury , what intent is required?
The offence of perjury is complete at the time the false evidence is given accompanied by an intention to mislead the tribunal
There must be an intention to mislead the tribunal, where this intention is absent, no offence is committed.
Fabricating Evidence
With intent to mislead any tribunal holding any judicial proceeding to which section 108 applies, fabricates evidence by any means other than perjury.
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
Examples of Misleading Justice
- Preventing a witness from testifying
- Willfully going absent as a witness
- Threatening or bribing witnesses
- Concealing the fact a crime has been committed
- Intentionally giving police false information to obstruct their enquiries
- Supplying false information to probation officers
- Assisting a wanted person to leave the country
- Arranging a false alibi
- Threatening or bribing jury members
Receiving - What must be proved
- There must be property which has been stolen or has been obtained by a crime
- The accused must have received that property, which requires that the receiving must be from another (you cannot receive from yourself)
- The accused must receive that property in the knowledge that it has been stolen or illegally obtained, or being reckless as to that possibility
Receiving - Control over Property
May still be exercised by a receiver when the property is in the possession of the receivers agent or servant - control must be intentional
Money Laundering
Section 243 CA 1961
CONCEAL: in relation to property, means to conceal or disguise the property and includes without limitations: to convert the property from one form to another OR 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 limitations: to dispose of the property, whether by sale or gift OR to transfer possession of the property OR to bring the property into NZ OR to remove the property from NZ
Definition of Interest - Money Laundering
A legal or equitable estate or interest in the property OR a right, power, or privilege in connection with the property
Money Laundering - What is Required to be Proved
- Dealing with property or assisting with such dealing
- The source of the property being the proceeds of an offence punishable of 5 years imprisonment or more committed by another person
- Knowledge or belief that the property was the proceeds of such an offence, or recklessness as to whether it was the proceeds of such an offence
- An intention to conceal the property
Criminal Recovery Act 2009 - 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
(iii) 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 liability.
Unlawful Criminal Recovery Act 2009
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 (whether or not that person undertook or was involved in the significant activity)
Unlawfully Benefitted From Significant Criminal Activity
Pulman v Commissioner of Police
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
Affidavit required for an application under Criminal Proceeds Recovery Act.
Such an application will require a straight forward affidavit from the officer in charge of the file outlining:
Officer in Charge (details) & Offender (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.
Outline any admissions made during the interview
Property: describe property sought to be restrained and its value
Show that the offender owns, has custody or control over the property
Restraining Orders
Only members of Asset Recovery Units may apply for restraining orders, assets forfeiture orders and profit orders
