SA

Question 1

Withdrawing From an Agreement – Conspiracy

Answer 1

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.

Question 2

Admissibility of Evidence

Answer 2

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.

Anything a conspirator or party to a joint charge says or does to further the common purpose is admissible against the 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. Then the explanation is evidence only against the person making it.

Question 3

Suspects – Investigative Procedure – Conspiracy

Answer 3

Interview 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, and
• The identity of all people concerned where possible, and
• Whether anything was written, said or done to further the common purpose.

Question 4

Charging – Conspiracy

Answer 4

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, i.e. the jury may assume the accused’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 the trial
• Where the charge of conspiracy is not founded on evidence or is an abuse of process, it may be quashed
• Severance may be order meaning that each indictment or information may be heard at separate trials

Question 5

INTENT

Answer 5

CHECK MODULE

Question 6

What must be proved (Three elements)– Attempts to commit an offence

Answer 6

In each case of attempt you must prove the identity of the suspect and their;
• Intent (Mens Rea) to commit the 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

Question 7

Case Law – R v Harpur

Answer 7

The court may have regard to the conduct viewed up to the point when the conduct in question stops. The defendant’s conduct may be considered in its entirety. Considering how much remains to be done is always relevant though not determinative.

Question 8

Example of legally impossible acts – Attempts to commit an offence

Answer 8

Case Law – R v Donnelly (Legally Impossible)

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.

(Legally impossible to receive stolen property already recovered by police or owner)

Question 9

Act completed sufficiently proximate to intended offence – Attempts to commit an offence

Answer 9

Once the acts are sufficiently proximate, the accused has no defence that they;
• Were prevented by some outside agent from doing something that was necessary to complete the offence; e.g. interruption by police
• Failed to complete the full offence due to ineptitude, inefficiency or insufficient means, e.g. insufficient explosive to blow apart a safe
• Were prevented from committing the crime because an intervening event made it physically impossible, e.g. removal of property before intended theft

Question 10

Case Law – R v Ring (Physically Impossible)

Answer 10

The offender’s intent was to steal property by putting his hand into the pocket of the victim, unbeknown to the offender the pocket was empty. Despite this he was able to be convicted of attempted theft because the intent to steal whatever property might have been discovered inside the pocket was present in his mind and demostrated in his actions. The remaining elements were also satisfied.

Question 11

Case Law – Higgins v Police (Physically Impossible)

Answer 11

Where plants being cultivated as cannabis are in fact not cannabis it is physically not legally impossible to cultivate such prohibited plants. Accordingly it is possible to commit the offence of attempting to cultivate cannabis.

Question 12

Case Law – Police v Jay (Physically Impossible)

Answer 12

A man bought hedge clippings believing they were cannabis.

Question 13

Case Law – R v Renata (Multiple offenders - Parties)

Answer 13

The courts held that where the principal offender cannot be identified, it is sufficient to prove that each of the individual accused must have been either the principal or a party in one of the ways contemplated by section 66(1).

Question 14

Secondary offenders (Parties)

Answer 14

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 section 66(1) (b) (c) or (d).

To be a party to an offence the acts of the secondary offender must be earlier in the time or contemporaneous with the acts of the principal offender(s). Whether the acts are contemporaneous is dependent on the circumstances of each case.
Where the act was part of the original planning, e.g. providing a means of escape, then the person who committed this act would be deemed a principal party.

However, a person cannot be convicted as a party to an offence that is already complete. In such a case they would be liable as an accessory.

Question 15

Actual Proof of Assistance examples - Parties

Answer 15

Larkins v Police

Examples of assistance;
• Keeping lookout for someone committing a burglary
• Providing a screwdriver to someone interfering with a motor vehicle
• Telling an associate when a neighbour is away from their home so as to allow the opportunity to commit a burglary

Question 16

Case Law – Larkins v Police

Answer 16

While it is unnecessary that the principle should be aware that he or she is being assisted, there must be proof of actual assistance.

Question 17

Innocent Agents – Parties

Answer 17

Innocent agents are sometimes used by offenders. An innocent agent is someone who is unaware of the significance of their actions. Where an offender uses an innocent agent to bring about the actus reus, the innocent agent is not regarded as a participant to 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.

Question 18

Case Law – R v Pene

Answer 18

A party must intentionally help or encourage. It is not sufficient if they were reckless as to whether the principal was assisted or encouraged.

Question 19

Case Law – R v Betts and Ridley

Answer 19

An offence where no violence is contemplated and the principal offender in carrying out the common aim uses violence, a secondary party taking no physical part in it would not be liable for the violence used.

Question 20

Case Law – R v Russell (Special Relationship)

Answer 20

The court held that the accused was morally bound to take active steps to save his children, but by his deliberate abstention from so doing, and by giving the encouragement and authority of his presence and approval to his wife’s act he became an aider and abettor and thus a secondary offender.

Question 21

What needs to be proven – Accessory after the fact

Answer 21

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

Question 22

Case Law – R v Gibbs

Answer 22

The acts done by the accessory must have helped the other person in some way to evade justice.

Question 23

Case Law – R v Levy (actively suppress)

Answer 23

It was held that levy had done a deliberate act in relation to the evidence against the offender for the purpose of assisting that offender to evade justice.

Question 24

Knowledge must exist at the time assistance given – Accessory After the Fact

Answer 24

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 following the rendering of assistance they are not liable as an accessory.

Question 25

Evidence of Perjury, False Oath or False Statement – Misleading Justice – Section 112 Crimes Act 1961

Answer 25

No one shall be convicted of perjury, or of any offence against section 110 or 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.

Question 26

Fabricating Evidence – Misleading Justice – Section 113 Crimes Act 1961

Answer 26

Everyone is liable to a term of imprisonment 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.

Question 27

Ingredients of Perjury – Misleading Justice

Answer 27

The ingredients of the offence of perjury are;

1. A witness making any
2. Assertion as to any matter of fact, opinion, belief or knowledge
3. In any judicial proceeding
4. Forming a part of that witness’s evidence on oath
5. Known by that witness to be false, and
6. Intended to mislead the tribunal

Question 28

Opinion Evidence by Lay Witnesses – Misleading Justice

Section 24 Evidence Act 2006

Answer 28

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.

Question 29

Corroboration Required – Misleading Justice

Answer 29

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.

Question 30

The “act of receiving” 3 elements – Receiving

Answer 30

The act of receiving requires the satisfaction of three elements;
• 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

Question 31

Doctrine of Recent Possession – Receiving

Answer 31

It is the presumption that, where the defendant acquired possession willingly, the proof of possession by the defendant of property recently stolen, 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, e.g. burglary or robbery.

Question 32

Money Laundering – Money Laundering & Criminal Proceeds (Recovery) Act 2009 –
Section 243(1) Crimes Act 1961

CONCEAL

DEAL WITH

INTEREST

Answer 32

(1) For the purposes of this section and sections 244 and 245 –

Conceal: In relation to property, means to conceal or disguise the property, and includes without limitations;

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 limitations;

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:
• A legal or equitable estate or interest in the property; or
• A right, power or privilege in connection with the property

Question 33

Tainted Property – Criminal Proceeds Definitions –

Section 5 Criminal Proceeds (Recovery) Act 2009

Answer 33

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 34

Unlawfully benefited from criminal activity – Criminal Proceeds Definitions –
Section 7 Criminal Proceeds (Recovery) Act 2009

Answer 34

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 criminal activity).

Question 35

Profit forfeiture order – Criminal Proceeds Definitions –

Section 55, Criminal Proceeds (Recovery) Act 2009

Answer 35

(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

Question 36

Unlawfully benefited by significant Criminal Activity – Criminal Proceeds (Recovery) Act 2009

Case Law – Pulman v Commissioner of Police (Relevant only)

Answer 36

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 deter significant criminal activity.