Flashcards in Associated Offences 006 - updated July 2017 Deck (100)
How is conspiracy defined in Mulcahy v R?
A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means.
What was found in R v Sanders regarding when a conspiracy ends?
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.
What does s67 say about who can commit a conspiracy?
s67, CA 61
A husband and wife or civil union partners can commit conspiracy.
What was found in R v White regarding the people involved in a conspiracy?
The conspiracy may be by a person who could not commit the crime and where you can prove that a suspect conspired with other parties whose identities are unknown, that suspect can still be convicted even if the identity of the other parties is never established and remains unknown.
Churchill v Walton
The conspirators need not know it is an offence but must know the act is unlawful.
How is knowledge defined in Simester and Brookbanks?
Knowing means 'knowing' or 'correctly believing'. The defendant may believe something wrongly, but cannot 'know' something that is false.
How is knowledge defined in 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.
What was held in R v Briggs in regard to knowledge?
Knowledge may also be inferred from wilful blindness or a deliberate abstention from making inquiries that would confirm the suspected truth.
For the purposes of the liability for Accessory After the Fact, how is Party defined in the Crimes Act? What are the elements?
Party - s661(1), CA 61
Defined as being anyone who
a) Actually commits the offence
b) Does or omits an act for the purpose of aiding any person to commit the offence
c) Abets any person in the commission of the offence
d) Incites, counsels, or procures any person to commit the offence
R v Mane
To be considered an accessory the acts done by the person must be after the completion of the offence.
For the purposes of the liability for Receiving when is receiving complete according to the Crimes Act?
Receiving 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,
s246(3), CA 61
R v Donnelly as it appears in the element of 'Receives' in the liability for Receiving.
R v Donnelly
Where stolen property has been physically recovered by the Police it is legally impossible to commit the crimes of receiving or attempted. It must be legally possible to receive the property.
R v 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.
Discuss the element 'Stolen' in the liability for Receiving.
s219(1), CA 61
Dishonestly and without claim of right, taking any property with intent to deprive any owner permanently of that property or of any interest in that property.
How is obtains defined in the Crimes Act?
s217, CA 61
Means obtain or retain for himself or herself of for any otherwise person.
R v Kennedy as it appears in the liability for Receiving.
R v Kennedy
A guilty knowledge that the thing has been stolen or dishonestly obtained must exist at the time of receiving.
When is a conspiracy complete?
The offence is complete on the agreement being made, accompanied by the required intent.
List three types of circumstantial evidence from which intent may be inferred.
- offender's actions and words before, during and after the event
- surrounding circumstances
- nature of the act itself
How does the Oxford Dictionary define 'Act'?
To take action or do something, to bring about a particular result.
How does the Oxford Dictionary define 'Omission'?
The action of excluding or leaving out someone or something, a failure to fulfil a moral or legal obligation.
In what situation could someone conspiring outside of NZ be charged with conspiracy in NZ courts?
If they were later physically present in NZ and there act in continuance of the conspiracy.
In what situation could someone conspiring to commit an offence overseas still be charged under the Crimes Act? What would be the defence?
If they conspire to commit anything, the doing or omitting of which would be an offence if done or omitted in NZ.
They have a defence if they can prove that the act is not an offence under the law of the place where it was to be committed.
What is the exception to the hearsay rule in regards to the admissibility of evidence for a Conspiracy charge? What effect does this have on how people should be charged?
Anything a conspirator or party to a joint charge says or does to further the common purpose is admissible against the others involved. Therefore conspirators should be jointly charged.
What five points should be covered when interviewing conspiracy suspects?
- 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
- 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
Explain the liability of a person who agrees to commit an offence with another person but then withdraws from the agreement before the completion of the intended offence.
A person withdrawing from the agreement is still guilty of conspiracy, as are those people who become party to the agreement after it has been made. However a person can effectively withdraw before the actual agreement is made.
What are three groups of offences that do not allow for a prosecution in respect of an attempt?
- 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. Eg. Demanding with menaces (it is the demand accompanied by menace that constitutes the offence)
What three elements must apply for attempts?
- 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
Quote the definition of attempts in the Crimes Act.
s72(1), CA 1961
Everyone 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.
Summarise the case law that is significant when considering the issue of inferring intent from an act.
R v Ring
In this case the offender's intent was to steal property by putting his hands 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.
Explain the rule used to decide whether a defendant's actions are sufficiently proximate.
Effectively the defendant must have started to commit the full offence and have gone beyond the phase of mere preparation - this is the "all but" rule.
What was held in R v Harpur in relation to Attempts?
The Court may have regard to the conduct viewed cumulatively up to the point where the conduct in question stops. The defendant's conduct may be considered in its entirety. Considering how much remains to be done is always relevant, though not determinative.
What are the two questions suggested by Simester and Brookbanks in relation to the proximity test?
- Has the offender done anything more than getting himself into a position from which he could embark on actual attempt?
- Has the offender actually commenced execution; that is to say has he taken a step in the actual offence itself?
Briefly outline the three pieces of case law in relation to an act being physically or factually impossible.
R v Ring - put his hand in the pocket of a woman but there was nothing to be stolen
Higgins v Police - cultivated plants that weren't cannabis so attempted to cultivate cannabis
Police v Jay - bought hedge clippings thinking they were cannabis
Outline the role of judge and jury in regards to Attempts.
Judge must decide whether defendant has left preparation stage and was already trying to effect completion of the full offence. If Judge decides defendant's actions were more than mere preparation the case goes to jury.
Jury decides whether facts presented by Crown have been proved beyond reasonable doubt then whether defendant's actions are close enough to full offence. Jury must decide whether it's beyond reasonable doubt that the defendant intended to commit full offence.
Outline penalties for Attempts.
If max punishment is life = 10yrs
Everything else = half max punishment
True or false? Where a person is charged with the full offence but are found guilty only of an attempt they may be convicted of the attempt.
True or false? Where a person is charged with the attempt but the evidence establishes that they committed the full offence they can be convicted of the full offence.
In each case of charging a person with being a party to an offence, what needs to be proved?
- Identity of the defendant
- An offence has been successfully committed
- The elements of the offence (s66(1)) have been satisfied
When must participation have occurred for someone to be considered a party to an offence?
Before or during the commission of the offence and before the completion of the offence
R v Pene
A party must intentionally help or encourage - it is insufficient if they were reckless as to whether the principal was assisted or encouraged.
There are two methods by which multiple offenders may be considered to be principals. What are those methods?
1. Each offender satisfies elements of the offence committed. They separately satisfy the necessary elements of the offence committed. No need to refer to s66(1).
2. Each offender separately satisfies part of the actus reus. Their actions must also be accompanied by the mens rea.
Summarise R v Renata.
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.
R v Renata
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).
Larkins v Police (not verbatim)
While it is unnecessary that the principal should be aware that he or she is being assisted, there must be proof of actual assistance.
What are the two pieces of case law that relate to legal duty and special relationship?
Legal duty = Ashton v Police: a person teaching another person to drive is a secondary party with a legal duty owing to the general public.
Special relationship = R v Russell: A man has a special relationship with his wife and children and is morally bound to take active steps to save his children.
Define 'aid' in the context of party to an offence.
To assist in the commission of the offence, either physically or by giving advice and information.
Define 'abet' in the context of party to an offence.
To instigate or encourage; to urge another person to commit the offence.
Define 'incites' in the context of party to an offence.
To rouse, stir up, stimulate, animate, urge or spur on a person to commit the offence.
Define 'counsel' in the context of party to an offence.
To intentionally instigate the offence by advising a person on how best to commit an offence, or planning the commission of an offence for another person. May also mean urging someone to commit an offence (overlap with incitement).
Define 'procure' in the context of party to an offence.
Setting out to see that something happens and taking the appropriate steps to ensure that it does.
R v 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.
Where two 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.
True or false? An accomplice can be convicted of a lesser offence than the one that the principal offender is convicted of.
True (R v Hartley)
Mere presence at the scene of an offence does not create liability on the part of the bystander. What are the two exceptions?
Special relationship and legal duty
Outline the penalties for Accessory After the Fact.
If max penalty is life = max 7yrs
If max penalty is 10+yrs = max 5yrs
Everything else = max half the max punishment for that offence
What needs to be proved for a charge of Accessory After the Fact?
- That the person who is received, comforted or assisted by the accessory is a party to an offence that has been committed.
- That, 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 any evidence against that person.
- That at the time of receiving, comforting or assisting etc. the accessory's purpose was to enable that person to escape after arrest or to avoid arrest or conviction.
What are the specific statutory limitations imposed under s71(2)?
You can't be charged with being an Accessory to your spouse, or your spouse and another party (if they've worked in concert). Applies to civil unions.
Doesn't apply to de facto relationships.
Doesn't apply where the person helps another party but does not assist the spouse/partner.
For an Accessory, what knowledge must exist at the time assistance is given?
- an offence has been committed, and
- the person they are assisting was a party to that offence
What are the five intentional acts from which an Accessory must do one?
- Tampers with evidence
- Actively suppresses evidence
R v Gibbs
The act done by the accessory must have helped the other person in some way to avoid justice.
True or false? It is possible to be convicted of attempting to be an accessory after the fact.
True (R v DH)
What are the three possible intents of an Accessory?
To enable the offender to
- escape after arrest
- avoid arrest
- avoid conviction
True or false? A person can be convicted as an Accessory After the Fact where the offender has been acquitted of the offence.
Define receives in the context of Accessory After the Fact.
Receives: Refers to harbouring an offender or offering them shelter
Comforts: Refers to providing shelter, accommodation, food, clothing or other supplies to an offender
Give 5 examples of assisting in the context of Accessory After the Fact.
- providing transport
- acting as a lookout
- identifying purchaser for stolen property as a receiver
- deliberately providing authorities with false info as to offender's whereabouts
- giving advice, info, material or services to offender
Define tampers with
Tampers with: To alter the evidence against the offender
Define actively suppresses
Actively suppresses: Encompasses acts of concealing or destroying evidence against offender
What is the primary difference between a party to an offence and an accessory after the fact?
A party is involved in before or during commission of the offence; accessory is involved after the principal offence has been committed.
Under what circumstances can you charge someone as being an accessory when they have received goods dishonestly obtained?
Where you can prove that the property was received with an intention to assist the offender evade justice.
When is perjury complete?
At the time the false evidence is given accompanied by an intention to mislead the tribunal.
What are the two main points to be covered when interviewing a suspect in respect of perjury?
- Whether the suspect knew their assertion was false AND
- Whether they intended to mislead the tribunal governing proceedings
Outline the penalties for Receiving.
Value $1,000+ = max 7 yrs
$500-1,000 = max 1 yr
Less than $500 = max 3 mths
What three elements need to be satisfied for the act of receiving?
- 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
When is the act of receiving complete?
Once the defendant has
- either exclusively or jointly with the thief or any other person
- possession or control of the property OR
- has assisted in the concealment or disposition of the property
- if there is guilty knowledge at that point the offence is complete
What was held in R v Kennedy in relation to establishing possession for Receiving?
The prosecution must prove an intent on the part of the receiver to possess the property.
Explain how possession of property can be established in a charge of receiving.
By showing that the property is:
- in the immediate physical custody of the receiver OR
- at a location, over which the receiver has control (such as their place or business or private residence)
Explain the doctrine of recent possession.
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 thief or receiver or has committed some other offence associated with the theft of the property (eg. burglary, robbery).
How can title be avoided?
- Communicating directly with the receiver
- Taking all reasonable and possible steps to bring it to the deceiver's notice (eg. letter, email)
- Advising police of the circumstances of the deception
Define the term 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.
The elements of money laundering.
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
What is the purpose of the Criminal Proceeds (Recover) Act 2009?
...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
What is a qualifying instrument forfeiture offence?
a) Means an offence punishable by a maximum term of imprisonment of 5 years or more AND
b) Includes an attempt to commit, conspiring to commit, or being an accessory to an offence if the maximum term of imprisonment for that attempt, conspiracy or activity is 5 years or more.
What is the definition of 'significant criminal activity' under s6, CP(R)A?
...significant criminal activity means an activity engaged in by a person that if proceeded against as a criminal offence would amount to offending
a) that consists of or includes one or more offences punishable by a maximum term of imprisonment of 5 years or more OR
b) from which property, proceeds or benefits of a value of $30,000 or more have, directly or indirectly, been acquired or derived.
What is the definition of 'tainted property' in s5, CP(R)A?
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 or indirectly derived from, more than one activity if at least one of those activities is a significant criminal activity.
How long is a restraining order in relation to an Instrument of Crime valid?
One year from the date on which the order is made. Court may issue extension before expiry for another year.
What points need to be considered when interviewing a suspect about money laundering?
- suspect's legitimate income
- suspect's illegitimate income
- acquisition of financial records, from banks, financing companies, loan sharks, family trust documents
- clarification of documentary evidence located, as per above
List four points to cover when interviewing a witness for Conspiracy.
- 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
Give five reasons why it is undesirable to lay both a substantive charge and a related conspiracy charge.
- 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
- 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.
List four elements that must be taken into consideration when determining proximity.
Seriousness of offence
Define innocent agent.
Someone who is unaware of the significance of their actions.
List five examples of circumstances commonly relied on as evidence of guilty knowledge on the part of a receiver.
- possession of recently stolen property
- nature of the property
- purchase at gross undervalue
- secrecy in receiving property
- receipt of goods at unusual place
- receipt of goods at unusual time
- receipt of goods in unusual way
- concealment of property to avoid discovery
- removal of identifying marks/features
- steps taken to disguise property
- lack of original packaging
- type of person goods received from
- mode of payment
- absence of receipt where one would usually be issued
- false statements as to the source of the goods
- false statement as to date of acquisition
- nature of explanation given, eg, false/inconsistent
- false denial of knowledge/existence
According to s7, Criminal Proceeds (Recovery) Act 2009, what is the meaning of unlawfully benefited from significant criminal activity?
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).
Under s55, Criminal Proceeds (Recovery) Act 2009, when must the High Court make a profit forfeiture order?
...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 the property.
Who may apply for restraining orders (apart from those relating to instruments of crime), assets forfeiture orders and profit orders?
Only members of the Asset Recovery Unit.
How is property defined in the Crimes Act?
s2, CA 61
Property includes real and personal property and any estate or interest in any real or personal property, money, electricity and any debt and any thing in action and any other right or interest.
Cullen v R
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.
Once the acts are sufficiently proximate, the defendant has no defence that they:
- were prevented by some outside agency from doing something that was necessary to complete the offence (eg. interruption by 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)
R v Cox
Possession involves two elements. The first, often called the physical element, is actual or potential physical custody or control. The second, often described as 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.
R v Harney
Recklessness means the conscious and deliberate taking of an unjustified risk. In New Zealand it involves proof that the consequences complained of could well happen, together with an intention to continue the course of conduct regardless of risk.