1
Q
CL: Conspiracy
A
s310(1) CA61:
(1) 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 NZ would be an offence
- > liable 7 years if max punishment > 7 years AND
- > otherwise liable to the same punishment as if he had committed that offence.
2
Q
Case: Mulcahy
A
A conspiracy is more than the mere intention of two or more, it is the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means.
This very plot is an act in itself.
3
Q
Conspiracy does not apply where a punishment for conspiracy is otherwise expressly prescribed. Which section outlines this?
A
s310(2)
4
Q
When is conspiracy complete?
A
The offence is complete on the agreement being made with the required intent.
No further progression towards the completion of the offence is required.
5
Q
Case: Sanders
A
A conspiracy does not end with the making of the agreement. It in existence until it is ended by:
- completion of its performance or
- abandonment or
- in any other manner by which agreements are discharged
6
Q
What is the actus reus of Conspiracy?
A
The actual agreement by two or more to carry out the illegal conduct.
Merely being passively present without actual agreement is not sufficient.
7
Q
Define: Intent
A
In a criminal law context there are two specific types of intent. Firstly there must be an intention to commit the act and secondly, an intention to get a specific result.
8
Q
What are 3 types of circumstantial evidence from which an offender’s intent may be inferred?
A
- the offender’s actions and words before, during and after the event
- the surrounding circumstances
- the nature of the act itself.
9
Q
Case: White
A
Where you can prove that a suspect conspired with other parties (one or more people) whose identities are unknown, that suspect can still be convicted even if the identity of the other parties is never established and remains unknown.
10
Q
Can a person conspire with there spouse or civil union partner? What section?
A
Yes. s67 CA61
11
Q
Up until which stage can you still withdraw from a conspiracy?
A
Until an agreement has been reached
12
Q
What 4 things should you seek to establish in a suspect interview regarding conspiracy?
A
- the existence of an agreement to:
- commit an offence OR
- omit to do something that would amount to an offence AND
- the existence of an agreement to:
- the intent of those involved
- the identity of all people concerned where possible
- whether anything was written, said or done to further the common purpose
13
Q
CL: Attempt
A
s72 CA61
(1) Every one who,
- having an intent to commit an offence,
- does or omits an act for the purpose of accomplishing his object,
- is guilty of an attempt to commit the offence intended,
- whether in the circumstances it was possible to commit the offence or not.
14
Q
Is the question of whether an act/omission an attempt a question of law or fact?
A
s72(2):
a question of law
15
Q
What are the three elements of an attempt?
A
- intent to commit an offence
- act - did or omitted something to achieve that end
- proximity - act/omission sufficiently close to intended offence.
16
Q
What are the rules around committing impossible offences?
A
- offence must be legally possible to commit
- whether an offence was physically possible does not matter, you can be convicted of an attempt either way.
17
Q
What 3 Cases provide examples of physically impossibility as it relates to Attempts?
A
Ring
The offender’s intent was to steal property by putting his hand into the pocket of the victim. He was convicted of attempted theft even though the pocket was empty and theft was physically impossible.
Higgins
Where plants being cultivated as cannabis are not cannabis it is physically impossible to cultivate such prohibited plants and therefore it is still legally possible.
Jay
A man bought hedge clippings believing they were cannabis.
18
Q
Case: Harpur
A
The defendant’s conduct is to be viewed in its entirety and considering how much remains to be done … is relevant, but not determinative.”
19
Q
What is Simester and Brookbanks test for attempting?
A
- Has the offender done anything more than getting himself into a position from which to make an attempt?
OR
- has the offender actually commenced execution; i.e. has he taken a step in the actual crime itself?
if yes to either = attempt
20
Q
Donnelly
A
Where stolen property has been returned to the owner or legal title has been transferred to another 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.
21
Q
When is an attempt complete?
A
Once the defendant completes an act sufficiently proximate to the intended offence.
22
Q
What is the role of judge and jury?
A
The judge decides where the defendant’s actions were more than mere preparation.
The jury decides whether the facts have been proved beyond reasonable doubt and, if so, whether the act’s are close enough to the full offence.
23
Q
When are you unable to charge with an attempt? (3)
A
- Criminality depends on recklessness or negligence (e.g. manslaughter)
- An attempt is included within the definition of the offence.
- Offence is such that the act has to have been completed in order for the offence to exist at all. (e.g. demanding with menace: it is the demand accompanied by menace that constitutes the offence)
24
Q
What is the penalty for an attempt?
A
s311 CA61:
Life = 10 years
Otherwise = half of penalty
25
What are the three situations that do not amount to a defence to an attempt?
1. Prevented by some outside agent (e.g. police)
2. Failed due to ineptitude, inefficiency or insufficient means (e.g. not strong enough to open door)
3. Physical impossibility (e.g. nothing to steal)
26
What must you prove for Being A Party to an Offence?
1. identity of the the defendant, AND
2. an offence has been committed, AND
3. the elements of the offence (s66(1)) have been satisfied.
27
When must participation have occurred for Being a Party to an Offence?
Before or during the commission of the offence.
28
Case: Pene
A party must intentionally assist or encourage the principal party
- it is insufficient if they were reckless as to whether the they were assisted or encouraged.
29
What is the Principal party in relation to a Party to the Offence?
What is the Secondary party?
s66(1)(a):
Actually commits the offence andpersonally satisfies the Actus Reus and Mens Rea
s66(1)(b)-(d):
Person who:
- assists,
- abets,
- incites,
- counsels
- procures
and in doing so is liable for the offence committed by the Principal offender.
30
What are the two methods by which multiple offenders may be considered Principals?
Method 1:
Each offender satisfies the elements of the offence committed.
E.g. each person assaults the victim. In such circumstances there is no requirement to refer to s66.
Method 2:
Each offender separately satisfies part of the actus reus. E.g. Where one person prepares a poison and the other administers it.
31
Case: Renata
Where the principal offender cannot be established, it is sufficient to prove that each individual must have been the principal or a party in one of the ways contemplated by s66(1).
32
Case: Larkins
While it is unnecesary that the Principal should be aware that he or she is being assisted, there must be proof of actual assistance.
33
What does 'Abet' mean in relation to being a Party to an Offence?
To encourage another person to commit the offence.
34
Case: Ashton
Case: Russell
Both example of a secondary party owing a legal duty to a third person or to the general public
_Ashton_
- a person teaching another person to drive is deemed to be in charge
_Russell_
Wife jumped into pool with two children. Husband took no action to save them.
- husband morally bound to save his children. His not doing so and encouragement through his presence made him and aider and abettor.
35
What is 'incite', 'counsel', 'procure' in relation to being a Party of an Offence?
All three take place prior to the offence.
Incite: rouse, stir up e.g. sports hooligan
Counsel: Intentionally instigate the offence by advising a person on how best to commit the offence.
Procures: Requires secondary party deliberately causes the principal party to commit the offence. Requires a stronger connection than aiding, abetting or inciting.
36
CL: Party to a Secondary Offence
s66(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 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.
37
Case: Betts and Ridley
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.
38
What are the two qualifications to be satisfied under the general rule in relation to probable consequence?
_Qualification 1_
Person A doesn't need know or foresee the precise manner in which offence B is to be committed by person B. Person A need only realise that an offence of that type is probable.
_Qualification 2_
Person A's doesn't need to foresee the consquences of the physical elements of offence B, but for which no mens rea element is required.
39
What is an innocent agent?
An innocent agent is someone who is unaware of the significance of their actions. The innocent agent is not a secondary party, they are a mechanism.
40
How might the involvement of parties be established? (5)
1. A reconstruction of the offence indicating more than one person was involved.
2. Principal offender telling you others were involved.
3. Suspect/witness admitting to aiding/assisting
4. Witness telling you others were involved
5. Other information suggesting others were involved.
41
CL: Accessory after the fact
s71 CA6:
(1) Knowing any person to have been a party to the offence:
- receives, comforts, or assists that person OR
- tampers with or actively suppresses any evidence against him
in order to enable him to escape after arrest or to avoid arrest or conviction.
42
What is the penalty for an accessory after the fact?
s312 CA61:
If LIFE = 7 years
If 10+ = 5 years
other case = 1/2 penalty
43
Case: Crooks
Knowledge means no real doubt that the person assisted was a party to the relevant offence. Mere suspicion is insufficient.
44
Case: Briggs
knowledge may also be inferred from wilful blindness or deliberately not making inquiries that would confirm the suspected truth.
45
Case: Mane
To be considered an accessory the acts done by the person must be after the completion of the offence.
46
What is the special thing about a married or civil union partner?
They cannot be an accessory after the fact where their spouse/partner was one of the offenders are they are assisting that person, or that person and another person.
47
# Define:
- receive
- comfort
- assist
- tamper with
- actively suppress
receive = harbour/shelter a person (e.g. hiding them)
comfort = provide food and clothing etc
assist = wide range. provide transport, give advice etc
tamper with = alter evidence e.g. phone records
actively suppress = concealing or destroying evidence against an offender. e.g. washing bloody clothess
48
CL: Perjury
s108 CA61:
an assertion as to:
- a matter of fact, opinion, belief, or knowledge
- made by a witness in a judicial proceeding as part of his evidence on oath,
- whether the evidence is given in open Court or by affidavit or otherwise,
- that assertion being known to the witness to be false and being intended by him to mislead the tribunal holding the proceeding.
49
Perjury punishment
s109 CA61:
(1) liable term not exceeding 7 years
(2) if perjury committed in order to procure the conviction of a person for any offence for which the maximum punishment is 3+ years, then liable maximum 14 years
50
Can a person be convicted of perjury on the evidence of of one witness alone?
No, not without corroborating evidence.
51
For which offences is it necessary that the Crown corroborate their evidence? (4)
1. perjury
2. false oaths
3. false statements
4. treason
52
What are examples of conspiring or attempting to mislead justice? (8)
1. prevent witness from testifying
2. go absent as a witness
3. threaten or bribe a witness
4. threatening or bribing jury members.
5. arranging a false alibi
6. assisting a wanted person to leave the country
7. intentionally giving police false information
8. intentionally giving probations false information
53
Is it a defence to a charge of conspiring to defeat the course of justice that the aim of the offender was to secure a just result, or one they believed was right?
no
54
When may a prosecution for perjury begin?
You may only commence a prosecution for perjury (civil or criminal), where it is recommended by the courts or you are directed to do so by the Commissioner of Police.
But you can begin inquiries into an allegation of perjury without reference to the court or Commissioner of Police.
55
Define: witness
A person who gives evidence and is subject to cross- examination in proceedings.
Includes people who have previously given evidence, people actively engaged in giving evidence, or people who will give evidence.
56
CL: Receiving
s246 CA61:
who receives any property -
- stolen OR
- obtained by any other imprisonable offence,
knowing that property to have been stolen or so obtained, OR
being reckless as to whether or not the property had been stolen or so obtained.
57
What is the punishment for receiving?
s247 CA61:
(a) if property value \> $1000 = 7 years
(b) if property value between $500-1000 = 1 year
(c) if property value \< $500 = 3 months
58
When is Receiving complete?
as soon as the offender has,
- either exclusively or jointly with the thief or any other person,
- possession or control of the property OR
- helps in concealing or disposing of it
59
Case: Cox
Possession involves two elements.
First, the physical element, is actual or potential physical custody or control.
Second, the mental element, is a combination of knowledge and intention: knowledge in the sense of an awareness by the accused that the substance is in his possession and an intention to exercise possession.
60
Case: Cullen
There are four elements of possession for receiving:
(a) awareness that the item is where it is;
(b) awareness that the item has been stolen;
(c) actual or potential control of the item; and
(d) an intention to exercise that control over the item.
61
Case: Donnelly
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.
62
Define: Property
s2 CA61:
Property includes real and personal property, and any estate or interest in any real and personal property, money, electricity, and any debt, and anything in action, and any other right or interest
63
Case: Lucinsky
The property received must be the property stolen or illegally obtained (or part thereof), and not some other item for which the illegally obtained property had been exchanged or which are the proceeds.
64
Case: Kennedy
The guilty knowledge that the thing has been stolen or dishonestly obtained must exist at the time of receiving.
65
Case: Harney
Recklessness means the conscious and deliberate taking of an unjustified risk.
66
List circumstantial evidence of guilty knowledge for receiving (20)
1. possession of recently stolen property
2. nature of the property, ie type, value, quantity
3. purchase at a gross undervalue
4. secrecy in receiving the property
5. receipt of goods at an unusual place
6. receipt of goods at an unusual time
7. receipt of good in an unusual way
8. concealment of property to avoid discovery
9. removal of identifying marks or features
10. steps taken to disguise property, ie removal / altering of serial numbers,
11. painting
12. lack of original packaging
13. type of person goods received from
14. mode of payment
15. absence of receipt where receipt would usually be issued
16. false statements as to the source of the goods
17. false statements as to the date of acquisition
18. nature of explanation given, eg false or inconsistent or no reasonable
19. explanation
20. false denial of knowledge, existence etc.
67
What is the doctrine of recent possession?
Whether possession is ‘recent’ is dependant on what 2 factors?
Where defendant acquired possession willingly, proof of that possession of recently stolen property, in the absence of satisfactory explanation, is evidence that they are either the thief or receiver.
Whether possession is ‘recent’ is dependant on:
1. the nature of the property, and
2. the surrounding circumstances.
68
Where property is stolen to order, what is the appropriate offence?
s66(1) - as a party to the principal offence rather than as a receiver under s246.
69
Define: Proceeds
property that is derived or realised, directly or indirectly, from an offence
70
CL: Money Laundering
s243(2) CA61:
liable 7 years who:
1. in respect of any property that is the proceeds of an offence
2. engages in a money laundering transaction,
3. knowing or believing that all or part of the property is the proceeds of an offence,
4. or being reckless as to whether or not the property is the proceeds of an offence.
71
CL: Money Laundering (having possesion)
s243(3) CA61:
liable 5 years who obtains or has in his or her possession any property (being property that is the proceeds of an offence committed by another person)—
(a) with intent to engage in a money laundering transaction in respect of that property; AND
(b) 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.
72
Define: Money laundering
the process of dealing with the proceeds of criminal activity in such a way as to make the proceeds appear to have been legitimately acquired
73
What are the three stages of money laundering?
1. placement - cash enters financial system
2. layering - money is involved in a number of transactions
3. integration - money is mixed with lawful funds or integrated back into the economy with the appearance of legitimacy
74
Define: Tainted property
any property that has, wholly or in part, been—
- acquired as a result of OR directly or indirectly derived from significant criminal activity,
- including where more than one activity has taken place so long as at least one of them is a significant criminal activity.
75
Define: qualifying instrument forfeiture offence
* an offence punishable by a maximum 5 years or more; AND
* Includes an attempt to commit, conspiring to commit, or being an accessory to an offence if the maximum imprisonment is 5 years or more.
76
Define: Significant criminal activity
offending–
(a) 1 or more offences of 5+ years; OR
(b) where property, proceeds, benefits = $30,000+ more have, directly or indirectly, been acquired or derived.
77
When must the Hight Court make a profit forfeiture order?
balance of probibilities—
(a) defendant unlawfully benefited from significant criminal activity within the relevant period of criminal activity; AND
(b) he has interests in property.
78
What is the purpose of the assessment process when preparing an application for a restraining order relating to an instrument of crime?
To establish:
1. the value of the asset
2. equity in the asset
3. any third party interest in the asset
4. the cost of action in respect of the asset.
79
What points should be considered when interviewing a money laundering suspect?
1. suspect’s legitimate income
2. suspect’s illegitimate income
3. expenditure
4. assets
5. liabilities
6. acquisition of financial records, from banks, financing companies, loan
7. sharks, family trust documents
8. clarification of documentary evidence located, as per above.
80
James - CIB Modules SF
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