Short Answers

Question 1

What must occur before criminal proceeds action can be taken?

Answer 1

A restraining order is the first step in the asset seizure process. In the case of tainted property and benefits from crime an application made to the High Court must show reasonable grounds for belief that the property is tainted - that it has been acquired, or directly or indirectly derived, from “significant criminal activity.”

Question 2

What four elements must be proved for a charge of money laundering?

Answer 2

1) Dealing with property or assisting with such dealing.
2) The source of the property being the proceeds of an offence punishable by 5 years’ imprisonment or more committed by another person
3) 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
4) An intention to conceal the property

Question 3

What matters should be considered when interviewing conspiracy

Answer 3

1

Question 4

What knowledge or belief is required for a charge of money laundering

Answer 4

The source of the property being the proceeds of an offence punishable by 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.

Question 5

What are the two things required for a charge under section 114 of the Crimes Act 1961 (Fabricating Evidence)?

Answer 5

Section 113, Crimes Act 1961

Everyone is liable to imprisonment for a term 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 6

What was held in R v Larkins

Answer 6

While 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 os an act intended to have that effect is insufficient. Absence of knowledge by the principal that he is being assisted removes a common foundation for a finding of actual assistance, namely that the principal was able to proceed with his enterprise with the additional confidence gained because his accomplice was on the lookout for unwanted intervention

Question 7

What are the ingredients to section 66(2) Crimes Act 1961

Answer 7

(2) Where 2 or more persons form a common intention to prosecute 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 8

For a charge of receiving, give four examples of circumstantial evidence

Answer 8

• Possession of recently stolen property
• Nature of the property, i.e. type, value, quantity
• Purchase at gross undervalue
• Secrecy in receiving the property
• Receipt of goods at an unusual place
• Receipt of goods at an unusual time

Question 9

Wha tis required to prove a charge of money laundering under s243(2)?

Answer 9

When considering the principal charge of money laundering, under s 243(2), prove of the following four elements is required:

1) Dealing with property or assisting with such dealing
2) The source of the property being the proceeds of an offence punishable by 5 years imprisonment or more committed by another person
3) 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.
4) An intention to conceal the property

Question 10

What are the ingredients for a charge under section 113 Crimes Act 1961

Answer 10

Everyone is liable to imprisonment for a term 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 11

What must be proved for a charge of Accessory After the fact?

Answer 11

Ever- 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 the 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 to assisting etc, the accessory’s (person B) purpose was to enable that person (person A) to escape after arrest or to avoid arrest or capture

Question 12

What are the two essential ingredients for a charge of fabricating evidence?

Answer 12

Everyone os liable to imprisonment for a term 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 13

Give four examples for a charge of receiving that may show an offenders guilty knowledge

Answer 13

• Possession of recent stolen property
• Nature of the property, i.e. 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

Question 14

What was held in R v Donnelly?

Answer 14

Where stolen property has been physically recovered by the Police, it is legal impossible to commit the crimes of receiving or attempted receiving in respect of it, although there may be evidence of conspiring to receive property dishonestly obtained

Question 15

What was held in R v Renata

Answer 15

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 three offenders administered it. The Court held that where the principal offender cannot be identified, it is sufficient to prove that each individual accused must have been either the principal or a party in one of the ways contemplated by s66(1)

Question 16

What is the required intent for a charge of perjury?

Answer 16

The intention must be to mislead the tribunal, where this intention is absent no offence is committed

Question 17

What are the ingredients for the charge of Accessory After the Fact?

Answer 17

• That the person (A), who is received, comforted or assisted by the accessory (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 (a), the accessory (b) knows that person (a) was a party to the offence
• That the accessory (B) received, comforted or assisted that person (a) or tampered with or actively suppressed any evidence against that person (A)
• That, at the time of the receiving, comforting or assisting etc, that accessory’s (B) purpose was to enable that person (A) to escape after arrest or to avoid arrest or conviction.

Question 18

What must be satisfied to the High Court when making a profit forfeiture order? (PFO)

Answer 18

Section 55, Criminal Proceeds (Recovery) Act 2009

(1) The High Court must make a profit forfeiture order if it is satisfied on the balance of probabilities that -
(a) The respondent has uno;awfully benefited from significant criminal activity within the relevant period of criminal activity;
and
(b) the respondent has interests in the property

Question 19

What must the prosecution prove against a receiver where stolen property is located at their property?

Answer 19

Where property is located at a place, over which the receiver has control, then the prosecution must prove the receiver arranged for the property to be delivered there,or alternatively, that upon discovering the property, he or she intentionally exercised control over it

Question 20

When is receiving complete?

Answer 20

(3) The act of receiving any property stolen or obtained by any other imprisonable offence is complete as soon as the offender has, either exclusively or jointly with the theft or any other person, possession of, or control over, the property or helps in concealing or disposing of the property.

Question 21

What are the intentional acts an accessory must do?

Answer 21

The intentional acts are:

• Receives
• Comforts
• Assists
• Tampers with evidence
• Actively suppresses evidence

Question 22

What must occur before criminal proceeds can be taken?

Answer 22

A restraining order is the first step in the asset seizure process. In the case of tainted property an benefits from crime an application made to the High Court must show reasonable grounds for belief that the property is tainted - the it has been acquired, or directly derived, from “Significant Criminal Activity”

Question 23

A conspiratorial agreement required the operation of both the physical and mental faculties. What are the mental faculties (Mens rea or mental intent)

Answer 23

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

Question 24

What should be covered off when you interview a witness about a conspiracy?

Answer 24

Interview and obtain statements from witnesses covering:

• 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 25

What should covered off when interviewing a suspect for a conspiracy?

Answer 25

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

Question 26

Case law has established what following three conditions that must apply for an attempt conviction to succeed?

Answer 26

Case law has established that following three conditions that must apply for an attempt conviction to succeed:

• Intent (mens rea) - To commit an offence
• Act (Actus Reas) - They they did, or omitted to do, something to achieve that end
• Proximity - that their act or commission was sufficiently close

Question 27

Provide nine examples of conspiring or attempting to mislead justice within sections 116 and 117

Answer 27

• 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 enquiries
• Supplying false information to probation officers
• Assisting a wanted person to leave the country
• Arranging a false alibi
• Threatening or bribing jury members

Question 28

What was held in R v Sanders

Answer 28

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 29

What is meant by being a party to a secondary offence?

S66(2) CA ‘61

Answer 29

Where 2 or more persons form a common intention to prosecute 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 30

When can yo not prosecute a person for an attempt

Answer 30

You are not able to charge someone with an attempt to commit an offence where:

• 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. For example, demanding with menaces: It is the demand accompanied by the menace that constitutes the offence.

Question 31

What knowledge must be established when interviewing an accessory

Answer 31

At the time of the assistance being given, an accessory must possess the knowledge that:

• An offence has been committed
• The person they are assisting was a party (Principal or secondary) to that offence

and

where knowledge comes about following the rendering of the assistance they are not liable as an accessory

Question 32

What was held in Section 66(2) CA ‘61

Answer 32

(2) Where 2 or more persons form a common intention to prosecute 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 33

What is the definition of unlawfully benefited?

Answer 33

Section 7, Criminal Proceeds (Recovery) Act 2009

Meaning of unlawfully benefited from significant criminal activity.

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 34

The act of receiving requires the satisfaction of what 3 elements?

Answer 34

The act of receiving requires the satisfaction of 3 elements

• There must be property which has been stolen or has been obtained by an imprisonable offence
• The accused myst 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 35

In what circumstances may a witness give opinion evidence?

Answer 35

S 24 Evidence Act 2006 - General admissibility of opinions

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 36

What is the definition of tainted property?

Answer 36

Section 5, Criminal Proceeds (Recovery) Act 2009 - Interpretation

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 to indirectly derived from, more than 1 activity is at least 1 of those activities is a significant criminal activity

Question 37

When should you lay a substantive conspiracy charge or a related conspiracy charge?

Answer 37

• 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 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 separated trials.

Question 38

What is meant by sufficiently proximate in an attempt

Answer 38

Generally, to prove an attempt the accused must have done or omitted to do some act(s) that is/are sufficiently proximate (close) ti 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

Question 39

When does the Defendant have no defence to a charge of attempts?

Answer 39

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; e.g. interruption from 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 offence because an intervening event made it physically impossible, e.g. removal of property before the intended theft

Question 40

What is meant by the term common intention?

Answer 40

In situations where two or more offenders form a common intention (an agreement) and embark on a joint enterprise (commit an offence) together, for example a robbery (offence A), all who entered into the agreement can be charged as parties to that offence (Offence A)

They can also be charged as parties to any other offence (Offence B) that any one of them commits in order to assist in the commission o the offence original agreed to (Offence A), provided that the other offence (Offence B) is known to be a probable consequence of the prosecution of their common purpose (Offence A).

This extends to include any unusual consequences that arise from pursuing the jointly intended offence (Offence A). However, where one of the offenders goes beyond what is exactly agrees then the other(s) us not liable for the consequences of the unauthorised act (Offence B)

Question 41

What is Rv Betts and Ridley

Answer 41

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

Question 42

Define Abets

Answer 42

Abets means to instigate or encourage; that is, to urge another person to commit the offence

Question 43

Define Aids

Answer 43

To aid means to assist int he commission of the offence, either physically or by giving advice and information

Question 44

Define Incites

Answer 44

To incite means to rouse, stir up, stimulate, animate, urge or spur on a person to commit the offence

Question 45

Define Counsels

Answer 45

Counsels means to intentionally instigate the offence by advising a person(s) in how best to commit an offence, or planning the commission of an offence for another person(s)

Question 46

Can a person withdraw from an agreement in a conspiracy?

Answer 46

A person withdrawing from the agreement is still guilty of conspiracy as are those people who became party to the agreement after it has been made. However a person can effectively withdraw before the actual agreement is made.

Question 47

What is required in an application for restraining order relating to instrument of crime?

Answer 47

Such an application will require straight forward affidavit from the officer in charge of the file outlining:

• Officer in charge:
  details
• Offenders:
  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
• Admissions made during interview
• Property:
  Describe the property sought to be restrained and its value
  Show the offender owns, has custody or control

Question 48

Outline the exception to the hearsay rule for conspiracy

Answer 48

Anything a conspirator or party to a joint charge says or does to further the common purpose is admissible agains the others involved, this being the exception to the hearsay rule and as such conspirators should be jointly charged

Question 49

Define the doctrine of recent possession?

Answer 49

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 thrift or receiver, or has committed some other offence associated with the theft of the property. e.g. burglary or robbery

Question 50

What is the definition of a serious offence?

Answer 50

Section 243, CA ‘61
(1) Serious offence, means an offence punishable by imprisonment for a term of 5 years or more; and includes any act wherever committed, that, if committed in New Zealand would constitute an offence punishable by imprisonment for a term of 5 years or more

Question 51

What should you consider when interviewing a suspect for money laundering or proceeds recovery action is to be considered?

Answer 51

When interviewing a suspect about money laundering or where proceeds recovery action is to be considered, consider the following points:

• Suspect legitimate income
• Suspects illegitimate income
• Expenditure
• Assets
• Liabilities
• Acquisition of financial records, form banks, financing companies, loan sharks, family trust documents
• Clarification of documentary evidence located, as per above

Question 52

What is an innocent agent?

Answer 52

Innocent agents are sometimes used by 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 acts reus, the innocent agent is not regarded as a participant n the offence, they are simply the mechanism. The law treats offender as the principal in such cases.

An innocent agent can not be invited as a secondary party.

Question 53

What level of mens rea or an offenders mental intent us required for conspiracy?

Answer 53

The offenders mental intent must be to commit the full offence. Where this intent does not exist no crime has been committed.

Section 113, CA ‘61

Question 54

Provide 9 examples of conspiring to mislead justice

Answer 54

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 the 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

Question 55

What matters should be considered when interviewing conspiracy witnesses?

Answer 55

Witnesses
Interview and obtain statements from witnesses covering:
- The identity of the people present at the time of the agreement
- With whom the agreement is made
- What offences were planned
- Any acts carried out to further the common purpose

Question 56

What constitutes a party?

Answer 56

Section 66, CA ‘61

(1) Everyone is a party to and guilty of an offence who -
(a) Actually commits the offence; or
(b) Does or omits an act for the purpose of aiding any person to commit the offence; or
(c) Abets any person in the commission of the offence; or
(d) Incites, counsels, or procures any person to commit the offence

Question 57

What matters should be considered when interviewing conspiracy suspects?

Answer 57

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

Question 58

In the case of attempts, what must be proved?

Answer 58

• The identity of the suspects
• That they intended to commit an offence and
• They did, or omitted to do so, something to achieve that end

Question 59

What is Ashton v Police

Answer 59

An example of a secondary part owing a legal duty to a third person or to the general public is a person teaching another person to drive. That person is, in New Zealand, under a legal duty to take reasonable precautions, because under s156 of the Crimes Act 1961, he is deemed to be in charge of a dangerous thing

Question 60

Describe what is meant by an act which is physically or factually impossible

Answer 60

An act that is physically or factually impossible is the act in question amounts to an offence, but the suspect is unable to commit it due to interruption , ineptitude or an other circumstances beyond his or her control

Question 61

What is Higgins v Police

Answer 61

Where plants being cultivated as cannabis are not in fact 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 62

What is Police v Jay

Answer 62

A man bought hedge clippings believing they were cannabis

Question 63

What is R v Ring

Answer 63

In this case 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 demonstrated by his actions. The remaining elements were also satisfied.