Short Answers

Question 1

Define Abets, Aids, Incites and Counsels?

Answer 1

• Abets - to instigate or encourage, that is, to urge another person to commit the offence. As with aiding, the presence of the abettor at the scene of the offence at the time of its commission is not required.
• Aids - assist in the commission of the offence, either physically or by giving advice or information. In order to aid, the presence of the person offering the aid is not required at the scene, before, or at the time of the offence being committed.
• Incites - to rouse, stir up, stimulate or animate or spur or urge on a person to commit an offence. ie: a sport fan spurs on another fan to assault a protestor & yells approval while the offence takes place.
• Counsels - intentionally instigate the offence by advising a person(s) on how best to commit an offence, or planning the commission of an offence for another person(s). Counselling may also mean “urging someone to commit an offence”. in which case it will overlap with the incitement.

Question 2

What to prove for a charge of AATF?

Answer 2

• That the person (person A) who is received, comforted or assisted by the accessory (person B) was party (principal or secondary) 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 receiving, comforting or assisting etc, the accessory’s (person B) purpose was to enable that person (person A) to escape after arrest or avoid arrest or conviction.

Question 3

Held in R v Renata?

Answer 3

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 4

What is held in Parties to offence, s66(2), C.A 1961?

Answer 4

Where 2 or more persons form common intention to prosecute any unlawful purpose & 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 5

Criminal Recovery Act 2009. Definition of tainted property?

Answer 5

(a) 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
(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 6

Meaning of unlawful benefited from criminal activity?

Answer 6

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 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.

Question 7

Doctrine of recent possession - Receiving?

Answer 7

Applies to theft and receiving, It is the presumption that the possession of property recently stolen is, in the absence of a satisfactory explanation, evidence to justify a belief and find 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 8

In relation to the offence of Perjury, what intent is required?

Answer 8

The intent to be proved so as to establish a charge of perjury is the offender’s intention to mislead the tribunal holding the judicial proceeding.

Question 9

What is held in R v Donnelly?

Answer 9

Where stolen property has been physically recovered by the Police, it is legally 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 10

In what circumstances is it permitted for lay witness to give opinion evidence (s24 E.A 2006)?

Answer 10

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, e.g. apparent age, identity, speed, physical and emotional state of people, condition of articles (worn, new, used) and whether person under the influence of drink

Question 11

Matters to be considered when interviewing conspiracy witnesses & suspects?

Answer 11

Witnesses: WWAT

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

Suspects: WIIEE

• whether anything was written, said or done to further the common purpose
• the intent of those involved in the agreement
• the identity of all people concerned if possible
• 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.

Question 12

When to lay a conspiracy charge or substantive charge?

Answer 12

E-JAWS
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.

Question 13

Two essential ingredients for fabricating evidence under s113, C.A 1961?

Answer 13

• intent to mislead any tribunal holding a judicial proceeding to which section 108 applies
• fabricates evidence by any means other than perjury

Question 14

Money laundering knowledge and belief?

Answer 14

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 15

What is held in Larkins v Police?

Answer 15

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 of an act intended to have that affect 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 16

Three elements required for receiving?

Answer 16

• 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 17

R v Sanders?

Answer 17

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 18

What three conditions must be satisfied/apply for an ‘attempts’ conviction to succeed?

Answer 18

• 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 omission was sufficiently close

Question 19

Definition of serious offence?

Answer 19

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 20

Interviewing an accessory what knowledge must exist at the time assistance given to prove an AATF?

Answer 20

• an offence has been committed, and

- the person they are assisting was a party (principal or secondary) to that offence

Question 21

Exception to the hearsay rule (conspiracy)?

Answer 21

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

Question 22

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

Answer 22

• 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

Examples of conspiring or attempting to mislead justice within s116 and s117 may include?

Answer 23

• *PWACTT**
• preventing a witness from testifying
• wilfully going absent as a witness
• arranging a false alibi
• concealing the fact an offence has been completed
• threatening or bribing witnesses
• threatening or bribing jury members

Question 24

When is receiving complete – 246(3), C.A1961?

Answer 24

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 thief or any other person, possession of, or control over, the property or helps in concealing or disposing of the property

Question 25

What must prosecution prove against receiver having control over stolen property?

Answer 25

The prosecution must prove that 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. Intent to possess must also be satisfied.

Question 26

What must the high court satisfy when making a profit forfeiture Order?

Answer 26

Must satisfy on balance of probabilities that:

• the respondent has unlawfully benefited from significant criminal activity within the relevant period of criminal activity; and
• the respondent has interests in property

Question 27

What must occur before criminal proceeds action be taken?

Answer 27

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 28

What are the intentional acts (Actus reus) in relation to AATF that an assessor must do to be charged with AATF?

Answer 28

• receives
• comforts
• assists
• tampers with evidence
• actively suppresses
• evidence

Question 29

What constitutes a party to an offence – s66(1), C.A 1961?

Answer 29

(1) Everyone is 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 30

The mens rea (mental intent) necessary for a conspiracy?

Answer 30

• 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
• intent to commit the full offence

Question 31

Acts must be sufficiently proximate to the full offence?

Answer 31

Generally to prove an attempt the accused must have done or omitted to do some act/s that is/are sufficiently proximate (close) to the full offence. Effectively that 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 32

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

Answer 32

• Once acts are sufficiently proximate, the accused has no defense 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 33

Four examples of circumstantial evidence of guilty knowledge for receiving?

Answer 33

-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 34

What must be proved – Attempts to commit an offence?

Answer 34

In each case of attempt, you must prove:
the identity of the suspect(s), and they intended to commit an offence, and they did, or omitted to do, something to achieve their object.

Question 35

Withdrawing from an agreement - Conspiracy?

Answer 35

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 36

Actual proof of assistance is required – Parties to offences?

Answer 36

Examples of assistances:

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

Question 37

Knowing any person to have been a party to an offence – Accessory after the fact.

Answer 37

Simester and Brookbanks
“Knowing” means “knowing, or correctly believing”…the belief must be a correct one, where the belief is wrong a person cannot know something.

R v Crooks
Knowledge means actual knowledge or belief in the sense of having no real doubt that the person assisted was a party to the relevant offence. Mere suspicion of their involvement in the offence is insufficient.

Question 38

Evidence of perjury, false oath, or false statement – Misleading justice

Answer 38

S112, C.A 1961 – No one shall be convicted of perjury, or of any offence against section 110 or section 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.

Taylor v Manu
There must be something corroborating the allegation that an element of these offences occurred.

Question 39

Assessment process – Before preparing such an application an assessment process is required. The assessment process is conducted to determine:

Answer 39

• 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 40

Section 310, C.A 1961

Answer 40

Conspiring to
commit offence
Section 310, Crimes Act 1961
(1) Subject to the provisions of subsection (2) of this section, every one who conspires with any person to commit any offence, or to do or omit, in any part of the world, anything of which the doing or omission in New Zealand would be an offence, is liable to imprisonment for a term not exceeding 7 years if the maximum punishment for that offence exceeds 7 years’ imprisonment, and in any other case is liable to the same punishment as if he had committed that offence.