Short Answers

Question 1

Investigative procedures for witnesses - conspiracy

Answer 1

Interview and obtain statements from the witnesses covering -

ID of people present at the time of the agreement

With whom the agreement was made

What offences were planned

Any acts carried out to further the common purpose

Question 2

Mens Rea, mental intent necessary for conspiracy

Answer 2

An intention of those involved to agree

An intention that the relevant course of conduct should be pursued by those privy to the agreement

Question 3

Circumstantial evidence - conspiracy

Answer 3

The offenders actions and words before, during, and after the event

The surrounding circumstances

The nature of the act itself

Question 4

Conspiring with a spouse

Answer 4

A person is capable of conspiring with his or her spouse or civil union partner and any other person

Question 5

Process for interviewing suspects - conspiracy

Answer 5

Interview the people concerned, and obtain statements to establish-

The existence of an 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 people concerned where possible

Whether anything was written, said or done to further the common purpose

Question 6

Withdrawing from the agreement - conspiracy

Answer 6

A person withdrawing from the agreement is still guilty of conspiracy as are those who become a party to the agreement after it has been made.

However a person can effectively withdraw before the actual agreement is made.

Question 7

When a conspiracy ends - R v Sanders

Answer 7

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 or in any other manner by which agreements are discharged.

Question 8

What three conditions must apply for an attempt conviction to succeed?

Answer 8

Intent to commit an offence (mens rea)

Did or omitted to do something to achieve that end (actus reus)

Proximity - that their act or omission was sufficiently close

Question 9

When is an act physically or factually impossible?

Answer 9

An act is physically of 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

Question 10

When is a conspiracy complete?

Answer 10

The offence is completed 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 11

The test for proximity - Attempts to commit an offence -MC - pg25

Answer 11

The following questions should be asked in determining the point at which an act of mere preparation may b come 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 it self ?

Question 12

Two or more people

Answer 12

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

Question 13

Conspiracy to commit an offence overseas

Answer 13

Under s310 of the Crimes Act 1961, it is an offence to conspire to commit an offence or to do or omit to do anything, in any part of the world that would be an offence in New Zealand. The person has a defence if they are able to prove that the act is not an offence under the law of the place where it was to be committed.

Question 14

Several acts together may constitute an attempt

Answer 14

Several acts together may constitute an attempt. “His actions need not be considered in isolation; sufficient evidence of his intent was available from the events leading up to that point”

Question 15

Define - control over property

Answer 15

Control over property may still be exercised by a receiver when the property is in possession of the receivers’s agent or servant - control must be intentional.

Question 16

Define - abets, Aids, incites and counsels?

Answer 16

Abets - to instigate or encourage, urge another person to commit an offence

Aids - assist in commission of the offence either physically or offering advice etc

Incites - to rouse, stir up, stimulate or animate or spur or urge on a person to commit an offence

Counsels - intentionally instigate the offence by advising or planning for another person

Question 17

What is required to prove a charge of Accessory after the fact?

Answer 17

That the person who is received , comforted or assisted by the accessory was party (principle or secondary) to an offence that has been committed

At the time of receiving, comforting or assisting that person, the accessory knows that person was a party to the offence that the accessory received, comforted or assisted that person or tampered with or actively suppressed evidence against that person

At the time of receiving, comforting or assisting etc the accessory’s purpose was to enable that person to escape after arrest or avoid conviction

Question 18

What was held in R v Renata?

Answer 18

The court held that where the principle offender cannot be identified, it is sufficient to prove that each individual accused must have been either the principal or party in one of the ways contemplated in s66(1)

Question 19

What is s66(2) of the Crimes Act 1961?

Answer 19

Where 2 or more persons form common intention to execute any unlawful purpose and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose.

Question 20

Define tainted property

Answer 20

Section 5, Crimina Proceeds Act 2009

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, and

Question 21

Meaning of unlawful benefit?

Answer 21

A person unlawfully benefitted from significant criminal activity if the person has knowingly, directly or indirectly derived benefit from significant criminal activity (whether or not that person undertook or was involved in the significant criminal activity)

Question 22

Doctrine of recent possession

Answer 22

Applies to theft and receiving and is the presumption that the possession of recently stolen property is, in the absence of a satisfactory explanation, evidence to justify a belief that the possessor is either the thief or has committed some other offence associated with the theft of property. Allows for proof by way of circumstantial evidence.

OR

It is the presumption that, where the defendant acquired possession willingly, the proof of possession by the defendant of property recently stolen in, 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.

Question 23

What intent is required to prove the charge of perjury?

Answer 23

Intent to be proved so as to prove a charge of perjury is the offenders intention to mislead the tribunal holding the judicial proceeding

Question 24

What was held in R v Donnelly?

Answer 24

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 receivers may know that the property had previously been stolen or dishonestly obtained.

Question 25

In what circumstances is it permitted for any witness to give opinion evidence?

Answer 25

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, eg apparent age, identity, speed, physical and emotional state of people, condition of articles and whether a person was under the influence of alcohol

Question 26

When to lay a conspiracy charge or substantive charge?

Answer 26

Generally conspiracy charges should not be laid when substantive charge can be proved,it is undesirable to lay both because:

Evidence admissible only on the conspiracy charge may have prejudicial effect in relation to other charges

Judge may disallow the evidence as too prejudicial

Addition of conspiracy charge may unnecessarily prolong and complicate a trial

Where charge of conspiracy is not founded on evidence or is an abuse of process, it may be quashed

Severance may be ordered so Charing documents heard at separate trials

Question 27

Two essential ingredients for fabricating evidence?

Answer 27

Intent to mislead any tribunal holding a judicial proceeding to which section 108 applies

Fabricated evidence by means other than perjury

Question 28

Money laundering knowledge and belief?

Answer 28

Must prove the offender had knowledge or belief that the property was the proceeds of any serious offence (5+ yrs) or reckless as to whether it was proceeds of such an offence

Question 29

What was held in R v Larkins?

Answer 29

While unnecessary that the principal should be aware they are being assisted there must be proof of actual assistance.

Question 30

Three elements required for receiving?

Answer 30

There must be property stolen or obtained by an imprisonable offence

The accused must have received that property which requires that the receiving must be from another

The accused must receive that property in the knowledge that has been stolen or illegally obtained or being reckless as to that possibility

Question 31

Definition of serious offence?

Answer 31

Means an offence punishable by imprisonment for a term of 5 years or more and includes any act, wherever committed, that if committed in NZ would constitute an offence punishable by a imprisonment for a term of 5 years or more.

Question 32

Interviewing an accessory, what knowledge must be proved?

Answer 32

An offence has been committed,

The person they are assisting was a party to that offence

Knowledge must be at the time of assistance given

Question 33

Fabricating evidence – misleading justice

Answer 33

Everyone is liable to imprisonment for term, not exceeding seven years, with intent to mislead any tribunal, holding any judicial proceeding to which section 108 applies, fabricate evidence by any means other than perjury

Question 34

Ingredients of perjury – misleading justice

Answer 34

The ingredients of the offence of perjury are :

A Witness making any

assertion, as to any matter of fact, opinion, belief, or knowledge,

In any traditional proceeding,

forming part of the witnesses evidence on oath known by that witness to be false, and

intended to mislead the tribunal

Question 35

What was held in Pullman V Commissioner of police?

Answer 35

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 to “chants“ that they may be able to do so, and also to deter significant criminal activity

Question 36

What points are covered off when interviewing suspects for money laundering?

Answer 36

Suspects legitimate income

Suspects illegitimate income

Expenditure

Assets

Liabilities

Acquisition of financial records, from banks, loan, sharks, finance, companies and family trusts documents

Clarification of documentary evidence located as above

Question 37

Four points to prove money laundering?

Answer 37

Dealing with property or assisting with such

Source of the property, being the proceeds of an offence, punishable by five 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 and an intention to conceal the property

Question 38

Affidavit required for application

Answer 38

Such an application will require a straightforward affidavit from the officer in charge of the file outlining:

Officer in charge of details

Offenders details, charges, criminal convictions

Search warrant – describe the nature of the offending discovered at or involving the property (assets) concerned. Note where the value of the asset is high. You need to demonstrate that the offending was more of a commercial level.

Admissions me during interview

Property
Describe property sought to be restraint and its value

Show that the offender owns, has custody or control

Question 39

Conspiracy entered into overseas

Answer 39

Under the common law rules as t jurisdiction over conspiracy offences a person who has entered into a conspiracy overseas is amendable 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.

Question 40

Function of the Judge and Jury

Answer 40

The judge must decide whether the defendant had left the preparation stage and was already trying to effect completion of the full offence.

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.

Question 41

What are Innocent agents?

Answer 41

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 offender 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.

Question 42

Establishing involvement of parties

Answer 42

The involvement of parties may be established by:

A reconstruction of the offence committed. This would indicate that more than one person was involved, or that the principal offender had received advice or 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 persons involvement based on their observations.

Receiving information indicating that others were involved in the offence.

Question 43

Evidence of perjury, false oath, or false statement

Answer 43

In Taylor v Manu the Court held there must be something corroborating the allegation that an element of these offences occurred.

The Court 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 letter statement.

Question 44

Corroboration required

Answer 44

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

Question 45

Define Concept of title?

Answer 45

Means “a right or claim to the ownership of property”. Title or ownership of property is the legal right to possession of that property.

Where property is gained by deceptive means the offender gains both possession and title.

Question 46

Define voidable title?

Answer 46

Title obtained by deception is referred to as “voidable title”. This means that the title can be voided by the seller (complainant). At high 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 acquired the property them in good faith.

Question 47

Voiding title

Answer 47

In order to void title, the complainant must:

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

Question 48

Evidence of propensity

Answer 48

Propensity evidence holds relevance to a receiving charge, and may, where permitted, be introduced as evidence in proceedings in relation to a receiving charge.

Question 49

Property stolen to order

Answer 49

In situations where property is stolen to order the receiver of such stolen property is Lia Le as a party to the principal offence, pursuant to s66(1) rather than as a receiver under s246.

Question 50

Elements of Money laundering

Answer 50

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.

Question 51

What two main points to be covered when interviewing a suspect in respect of perjury?

Answer 51

Whether the suspect knew their assertion to be false, and

Whether they intended to mislead the tribunal

Question 52

When is the act of receiving complete?

Answer 52

Act is complete as soon as the offender has either obtained possession or control over or helps in its concealing or disposing of the property.

Question 53

Proving receiving

Answer 53

At the time of receiving stolen / illegally obtained property from another, knew it was stolen or illegally obtained, or reckless to the possibility.