Association Offences Module - Progress Tests

Question 1

What is a defence to conspiracy?

Answer 1

Section 310(3) – where under this section any one is charged with conspiring to do or omit anything anywhere outside New Zealand, it is a defence to prove that the doing or omission of the act to which the conspiracy relates was not an offence under the law of the place where it was to be done or omitted.

Question 2

When is the offence of conspiracy complete?

Answer 2

The offence is complete 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.

A simple verbal agreement to commit the offence will suffice.

Question 3

What is the mens rea and actus reus for conspiracy?

Answer 3

The mens rea 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; and
- The offenders’ mental intent must be to commit the full offence.

The actus reus of conspiracy is the actual agreement by two or more people to carry out the illegal conduct.

Question 4

What does Section 67 CA61 involve?

Answer 4

Conspiring with spouse or partner.

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

Question 5

What does Section 7 CA61 involve?

Answer 5

For the purpose of jurisdiction, where any act or omission forming part of any offence, or any event necessary to the completion of any offence, occurs in New Zealand, the offence shall be deemed to be committed in New Zealand, whether the person charged with the offence was in New Zealand or not at the time of the act, omission, or event.

Question 6

When interviewing a witness regarding a conspiracy offence, what should you establish?

Answer 6

• 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 7

When interviewing a suspect regarding a conspiracy offence, what should you establish?

Answer 7

• 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 8

Why should you not lay both a substantive charge and a related conspiracy charge?

Answer 8

• The evidence admissible only on the conspiracy charge may have a prejudicial effect in relation to other charges
• The judge may disallow evidence as it will be too prejudicial
• 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 9

What are the rulings around withdrawing from the agreement?

Answer 9

Once an agreement is made with the necessary intent, a person is still guilty of conspiracy even if they later withdraw.

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

Question 10

What does Section 72(1) CA61 involve?

Answer 10

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.

Question 11

What does Section 72(2) CA61 involve?

Answer 11

The question whether an act done or omitted with intent to commit an offence is or is not only preparation for the commission of that offence, and too remote to constitute an attempt to commit it, is a question of law.

Question 12

What does Section 72(3) CA61 involve?

Answer 12

An act done or omitted with intent to commit an offence may constitute an attempt if it is immediately or proximately connected with the intended offence, whether or not there was any act unequivocally showing the intent to commit that offence.

Question 13

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

Answer 13

• Intent (mens rea) – to commit an offence
• Act (actus reus) – that they did, or omitted to do, something achieve that end
• Proximity – that their act or ommission was sufficiently close

Additionally, there is the requirement that it must be legally possible to commit the offence, in the circumstances.

Question 14

What examples were outlined in the American Model Penal Code that may constitute an attempt to commit an offence?

Answer 14

• Lying in wait, searching for or following the contemplated victim
• Enticing the victim to go to the scene of the contemplated crime
• Reconnoitring the scene of the contemplated crime
• Unlawfully entering a structure, vehicle or enclosure in which it is contemplated that the crime will be committed
• Possessing, collecting or fabricating materials to be employed in the commission of the crime
• Soliciting an innocent agent to engage in conduct constituting an element of the crime

Question 15

What is the test for proximity?

Answer 15

Has the offender done anything more than getting himself in 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 itself?

If the answer to either question is ‘yes’ then we can say there has been an attempt as a matter of law. If not, the conduct can be classed as preparation and is not an offence.

Question 16

What is outlined regarding ‘impossibility’?

Answer 16

The wording “whether in the circumstances it was possible to commit the offence or not” refer to a physical or factual impossibility and not to a legal impossibility.

This means a person can be convicted of an offence that was physically impossible to commit, but cannot be convicted of an offence that was legally impossible to commit.

Question 17

When is the offence of an attempt complete?

Answer 17

An attempt is complete even when the defendant changes their mind or makes a voluntary withdrawal after completing an act that is sufficiently proximate to the intended offence.

Question 18

What is the function of the judge and jury in relation to an attempted offence?

Answer 18

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 19

When are you not able to charge someone with an attempt?

Answer 19

• 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 e.g. demanding with menaces

Question 20

What are the rules around filing of charges for attempts?

Answer 20

Charged with the full offence but guility of only the attempt, they can only be convicted of the attempt.

Charged with an attempt but the full offence is proved, they can only be convicted of the attempt.

Question 21

What is the penalty of the offence of an attempt?

Answer 21

Section 311, Crimes Act 1961

Any offence of which no punishment for the attempt is expressly prescribed is 10 years for a life imprisonment offence, and in any other case is no more than half the maximum punishment for the full offence.

Question 22

Once an offender has committed acts that are sufficiently proximate to the full offence, there are three situations that do not amount to a defence to the charge. What are those three situations?

Answer 22

1. Were prevented by some outside agent from doing something that was necessary to complete the offence e.g. interruption from police
2. Failed to complete the full offence due to ineptitude, inefficiency or insufficient means e.g. insufficient explosive to blow apart a safe
3. Were prevented from committing the crime because an intervening event made it physically impossible e.g. removal of property before intended theft

Question 23

What do you need to prove in every case of charging a person with being a party to an offence?

Answer 23

• The identity of the defendant
• An offence has been successfully committed
• The elements of the offence (s66(1)) have been satisfied

Question 24

When does participation have to occur for parties to?

Answer 24

To be considered a party to the offence, participation must have occurred before or during (contemporaneous with) the commission of the offence and before the completion of the offence.

Question 25

What are the two methods by which multiple offenders may be considered to be principals?

Answer 25

1. Each offender satisfies elements of offence committed 2. Each offender separately satisfies part of the actus reus

Question 26

What is an example of aiding by omission?

Answer 26

Liability for aiding by omission will arise where A, who has a legal duty to act and a right or power of control over B, fails to observe or discharge the duty by exercising that control to prevent B committing an offence.

Question 27

What must be considered under a ‘legal duty’?

Answer 27

The special relationship is also dependant on the person who would be a secondary party having a legal duty to act and a right or power of control over the principal offender.

Question 28

What are the two qualifications to be satisfied under the general rule in relation to probable consequence?

Answer 28

1. There is no requirement that person A knows or foresees 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. 2. There is no requirement that person A’s foresight of offence B include any appreciation of the consequences of the physical elements of the offence committed (offence B), but for which no mens rea element is required.

Question 29

When charged as a party to murder, in what cases will it be ruled murder or manslaughter?

Answer 29

A person will be guilty of murder (party) where they: - Intentionally helped or encouraged it, or - Foresaw murder by a confederate, as a real risk in the situation that arose A person will be guilty of manslaughter (party) where they: - Knew that at some stage there was a real risk of killing short of murder, or - Foresaw a real risk of murder, but the killing occurred in circumstances different from those contemplated, or - Can be expected to have known there was an ever-present real risk of killing

Question 30

During the procedure of investigating parties, what should you establish regarding their involvement?

Answer 30

- A reconstruction of the offence committed - The principal offender acknowledging or admitting that others were involved in the offence - An admission from a suspect - A witness providing evidence based on their observations - Receiving other information

Question 31

What are the time limits for prosecuting parties?

Answer 31

The same as that for the principal offender(s).

Question 32

What is the punishment for parties to?

Answer 32

Section 311(2) CA61: Every one who incites, counsels, or attempts to procure any person to commit any offence, when that offence is not in fact committed, is liable to the same punishment as if he had attempted to commit that offence.

Question 33

What is the difference between aiding and abetting, and inciting, counselling and procuring?

Answer 33

Aiding and abetting require the presence of someone at the scene of the offence whereas inciting, counselling and procuring describe actions that occurred before the offence was carried out.

Question 34

What is the penalty for accessory after the fact?

Answer 34

Section 312 CA61: - 7 years if the max punishment is life imprisonment - 5 years if the max punishment is 10 or more years - In any other case, not more than half the max punishment to which he would have been liable

Question 35

What needs to be proved for a charge of accessory after the fact?

Answer 35

- 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 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 to avoid arrest or conviction

Question 36

In what two situations is a person considered wilfully blind?

Answer 36

1. Where the person deliberately shuts their eyes and fails to inquire; this is because they knew what the answer would be, or 2. In situations where the means of knowledge are easily at hand and the person realises the likely truth of the matter but refrains from inquiring in order not to know

Question 37

What is the actus reus and mens rea of an accessory after the fact?

Answer 37

The accessory must do (actus reus) one of the five deliberate, intentional acts: - Receives - Comforts - Assists - Tampers with evidence - Actively suppresses evidence With the purpose (mens rea) of assisting the person to evade justice by: - Escape after arrest - Avoid arrest - Avoid conviction

Question 38

What does s137, Criminal Procedure Act 2011 involve?

Answer 38

Proceedings against parties to offences, accessories, and receivers Every person who is charged as a party, an accessory, or with receiving property may be proceeded against and convicted for the offence whether or not the principal offender has been proceeded against or convicted. This can be done alone for a substantive offence; or jointly with the principal or other offender

Question 39

What is the principal difference between a party to an offence and an accessory after the fact?

Answer 39

A party to an offence is involved in the offence before or during the commission of the offence, whereas accessories are involved after the principal offence has been committed.

Question 40

What does s83, Criminal Procedure Act 2011 involve?

Answer 40

False statement in formal statement deemed to be perjury. A formal statement filed under section 85 is to be treated as evidence on oath given in a judicial proceeding within the meaninig of section 108 CA61 (perjury).

Question 41

What is the penalty for perjury?

Answer 41

7 years. If perjury is committed in order to procure the conviction of a person for any offence for which the maximum punishment is not less than 3 years’ imprisonment, the punishment may be 14 years.

Question 42

What does s110, Crimes Act 1961 involve?

Answer 42

False oaths Every one is liable to imprisonment for a term not exceeding 5 years who, being required or authorised by law to make any statement that would amount to perjury if made in a judicial proceeding.

Question 43

What does s111, Crimes Act 1961 involve?

Answer 43

False statements or declarations Every one is liable to imprisonment for a term not exceeding 3 years who, on any occasion on which he is required or permitted by law to make any statement or declaration before any officer or person authorised by law to take or receive it, or before any notary public to be certified by him as such notary, makes a statement or declaration that would amount to perjury if made on oath in a judicial proceeding.

Question 44

What does s112, Crime Act 1961 involve?

Answer 44

Evidence of perjury, false oath, or false statement 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 come material particular by evidence implicating the defendant.

Question 45

What does s113, Crimes Act 1961 involve?

Answer 45

Fabricating evidence Every one 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 46

What does s24, Evidence Act 2006 involve?

Answer 46

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 47

In what three ways is evidence given?

Answer 47

Section 4, Evidence Act 2006 1. In the ordinary way (personally in court or by affidavit) 2. In an alternative way as provided for by s105 (CCTV, DVD, screens etc.) 3. In any other way provided for under this Act or any other enactment

Question 48

When is the offence of perjury complete?

Answer 48

At the time the false evidence is given accompanied by an intention to mislead the tribunal. There is no defence.

Question 49

What does s121, Evidence Act 2006 involve?

Answer 49

Corroboration It is not necessary in a criminal proceeding for the evidence on which the proseuction relies to be corroborated EXCEPT for perjury, false oaths, false statements or declarations, or treason

Question 50

Why must perjury offences be corroborated?

Answer 50

To protect witnesses from vexatious accusations of lying on oath. It is thought that making it too easy to prosecute someone for perjury might discourage people from giving evidence, which is undesirable.

Question 51

What are some examples of misleading justice?

Answer 51

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

Question 52

When investigating misleading justice offences, when can you commence a prosecution for perjury (civil or criminal)?

Answer 52

Where it is recommended by the courts or you are directed to do so by the Commissioner of Police.’ You may, however, begin inquiries into an allegation of perjury without reference to the court or Commissioner of Police.

Question 53

In what two ways can complaints of perjury arise?

Answer 53

1. An individual may complain that someone has perjured themselves. 2. A Judge may state or direct in a court recommendation that the police undertake inquiries into the truth of the evidence given by a witness.

Question 54

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

Answer 54

- Whether the suspect knew their assertion was false, and - Whether they intended to mislead the tribunal governing proceedings

Question 55

When is the act of receiving complete?

Answer 55

Section 246(3) CA61: 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. There must also be guilty knowledge at that point.

Question 56

What is the penalty for receiving?

Answer 56

Section 247 CA61: - 7 years for >$1000 - 1 year for $500-$1000 - 3 months < $500

Question 57

What must be proven for a charge of receiving?

Answer 57

- 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 tha possibility

Question 58

What is the critical question when dealing with receiving?

Answer 58

Whether the property was obtained by theft or by some other crime.

Question 59

What is the difference between theft and obtaining by deceit?

Answer 59

A thief never gets title. However, a person, who by deception or other deceit, induces another hand over the goods (and title), title will pass.

Question 60

What does Section 246(4), Crimes Act 1961 outline?

Answer 60

Receiving after restoration to owner. If any property stolen or obtained by any other imprisonable offence has been returned to the owner; or legal title to any such property has been acquired by any other person, a subsequent receiving of it is not an offence, even though the receiver may know that the property had previously been stolen or obtained by any other imprisonable offence. On the contrary, where the title has already been voided prior to being transferred to a third party, it leaves the deceiver with possession only. Thus, the deceiver is unable to confer title to another. In this situation the subsequent receiving of that property is an offence.

Question 61

Under what circumstances does a person keep title of goods if they have fraudulently induced another to hand over goods with the intention that title will pass?

Answer 61

A person can keep title of goods fraudulently when: Section 246(4) is an exception to the rule that you cannot get a better title than the seller. If the original purchaser subsequently sells the goods to an innocent buyer (one who is not aware of the defect in title) then the title has been made legal.

Question 62

How can you void title?

Answer 62

Title can be avoided by: 1. Communication to B. The taking of all possible steps to bring it to B’s notice, e.g. by writing a letter, text, phone call etc. 2. By advising the police that the vehicle was obtained by fraud 3. Bringing a civil claim seeking an order of the Disputes Tribunal or Small Claim Tribunal and seek a ruling from the circumstances provided.

Question 63

What are some examples of circumstantial evidence of guilty knowledge?

Answer 63

- Possession of recently 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 or time - Removal of identifying marks or features - Lack of original packaging

Question 64

What are the rules around using an associated defendant as a witness?

Answer 64

The original thief/obtainer as an associated defendant is only compellable to give evidence if that person is being tried separately OR if the proceeding against them has concluded.

Question 65

How does propensity evidence relate to receiving?

Answer 65

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 66

What is the doctrine of recent possession mean?

Answer 66

The doctrine of recent possession rule allows for proof of theft or receiving by way of circumstantial evidence. In circumstances where a person is found in possession of stolen property reasonably soon after the theft, an inference may be drawn that the person in possession either stole the property or received it from the thief. The doctrine applies only to cases where: - There is proof that the property has in fact been stolen or obtained by another crime - A defendant is found in possession of property recently stolen or obtained dishonestly

Question 67

What does Section 243A CA61 involve?

Answer 67

A person may be charged under s243(2) or (3) in respect of any property that is the proceeds of an offence to which s243(2) or (3) applies even though the person who committed the offence has not been charged or convicted of that offence.

Question 68

What is a defence to a charge of money laundering?

Answer 68

Section 245, Crimes Act 1961 This applies to an act that has occurred outside NZ and that is alleged to constitute an offence resulting in proceeds only if – (a) The act was an offence under the law of the place where and when it occurred; OR (b) It is an act to which section 7 or 7A of this Act applies; OR (c) An enactment provides that the act is an offence in NZ, and no additional requirement exists for the act to be an offence in the place where and when it occurred.

Question 69

What are the three stages of money laundering?

Answer 69

1. Placement: cash enters the 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.

Question 70

What is the purpose of the Criminal Proceeds (Recovery) Act 2009?

Answer 70

To establish a regime for the forfeiture of property – (a) That has been derived directly or indirectly from significant criminal activity; or (b) That represents the value of a person’s unlawfully derived income

Question 71

When must the High Court make a profit forfeiture order?

Answer 71

Section 55, Criminal Proceeds (Recovery) Act 2009 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 72

What does Section 142B of the Sentencing Act 2002 involve?

Answer 72

Places obligations on the prosecutor to consider notifying the court of any relevant property that is an instrument of crime so that forfeiture of that property can be considered as part of the sentencing process. This could include vehicles and property used to facilitate the commission of an offence.

Question 73

What is the purpose of the assessment process when preparing an application for a restraining order relating to an instrument of crime?

Answer 73

The assessment process is conducted to determine: - 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 74

What are the elements of Section 117, Crimes Act 1961?

Answer 74

Section 117 – Corrupting juries and witnesses - A person (a) Dissuades or attempts to dissuade any person, by threats, bribes or other corrupt means, from giving evidence in any cause or matter (civil/criminal; NZ or overseas jurisdiction); or (b) Influences or attempts to influence, by threats or bribes or other corrupt means, a member of a jury in his or her conduct as such (whether in a cause or matter tried in NZ or overseas jurisdiction, and whether the member has been sworn into a particular jury or not); or (c) Accepts any bribe or other corrupt consideration to abstain from giving evidence (in NZ or overseas jurisdiction); or (d) Accepts any bribe or other corrupt consideration on account of his or her conduct as a member of a jury (whether in a cause or matter tried in NZ or overseas jurisdiction, and whether the member has been sworn into a particular jury or not); or (e) Wilfully attempts in any other way to obstruct, prevent, pervert, or defeat the course of justice in NZ or the course of justice in an overseas jurisdiction.