Association 2020 Flashcards
1
Q
What is S310 CA1961?
A
310 Conspiring to commit offence
(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 New Zealand would be an offence,
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 or she had committed that offence.
(2) This section shall not apply where a punishment for the conspiracy is otherwise expressly prescribed by this Act or by some other enactment.
(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, or was to be, done or omitted.
2
Q
What are the elements of conspiracy?
A
- 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 n NZ would be an offence
3
Q
Mulcahy v R
A
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. So long as such a design rests in intention only it is not indictable. When two agree t carry it (the intended offence) into effect, the very plot is an act in itself.
4
Q
What is the essence of a conspiracy, as suggested in Greenfield?
A
Conspiracy is an agreement to pursue a course of conduct which, if carried out, would amount to the commission of an offence r involve the commission of an offence by one or more parties to the agreement..
5
Q
Is a person still guilty if they withdraw from an agreement?
A
Yes however a person can withdraw before the agreement is made.
6
Q
When is the offence of conspiracy complete?
A
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 I the agreement is required.
7
Q
R v Sanders
A
A conspiracy does not end with the making of an agreement. The conspiratorial agreement continues inspiration and there in existence until it is ended by completion of its performance or abandonment or in any other manner by which agreements are discharged.
8
Q
What is the actus refs of the offence of conspiracy?
A
It is the actual agreement which could be physical acts, words, or gestures.
9
Q
What is the mens rea of the offence of conspiracy?
A
Only the mental intent is necessary to complete the full offence. There does not need to be the physical intent to commit the full offence.
10
Q
What are the two different types of intent?
A
- an intent to commit a deliberate act
- the act or mission must be done deliberately. it must be more than involuntary or accidental - an intent to produce a result
11
Q
What are some circumstantial evidence from which an offenders intent may be inferred?
A
- the offenders actions and words before, during, and after the event
- the surrounding circumstances
- the nature of the act itself
12
Q
R v 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.
13
Q
What is S67 CA1961?
A
67 Conspiracy between spouses or civil union partners
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.
14
Q
Define ‘act’ and ‘omission’.
A
Act: An action or doing something to bring about a particular result
Omission: the act of excluding or leaving out someone or something. A failure to fulfil a moral or legal obligation.
15
Q
Under S7 CA1961, jurisdiction is explained. What does that mean for conspiracy?
A
A person charged with conspiracy need not have been in NZ at the time of the act, omission or event.
It is an offence not only to conspire to commit an offence in NZ but also to conspire to do or omit in any part of the world, anything the doing or omitting of which would be an offence if done or omitted in NZ.Not all acts or omissions forming part of the offence need be committed in NZ, some, perhaps almost all, may occur outside.
16
Q
Under common law rules, what happens with jurisdiction re conspiracy?
A
If someone conspires to an offence while being outside of NZ, they are liable if they later enter NZ and they act in continuation of the conspiracy.
17
Q
What is the defence to conspiracy of an overseas offence?
A
If the person is able to prove that the act is not an offence under the law of the place where it was to be committed.
18
Q
What is the admissibility of evidence with conspiracy (hearsay rule)?
A
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.
HOWEVER this does not include explanation made after the common purpose is carried out.
19
Q
What are some of the offences that contains specific provisions for conspiracy?
A
Treason, piracy, making false accusations, defeating justice, murder.
20
Q
When investigating conspiracy and speaking with witnesses, what are 4 things to cover off?
A
- the ID 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
21
Q
When investigating conspiracy and speaking with suspects, what are 5 things to cover off?
A
- 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 don’t to further the common purpose
22
Q
Why is it undesirable to lay both the substantive charge and a related conspiracy charge?
A
- the evidence admissible only on the conspiracy charge may have a prejudicial effect in relation to the other charges
- the judge may disallow the evidence as it will be too prejudicial, ie the jury may assume the defendants guilty knowledge or intent regarding the there charge and not look at the evidence, basing its assumption on the conspiracy charge
- the additional conspiracy charge may unnecessarily complicate and prolong the trial
- where the charge of conspiracy is not founded on evidence or is abuse of process, it may be quashed
- severance may be ordered (each charging document may be heard at seperate trials)
23
Q
What is S72 CA 1961?
A
72 Attempts (1) Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his or her object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.
(2) 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.
(3) 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.
24
Q
What are the three elements of an attempt offence?
A
- intent (mens rea) - to commit an offence
- act (acts reus) - that the did, or omitted to do, something to achieve that end
- proximity - that their act or omission was sufficiently close
25
Can a person be convicted of 'attempts' if it is PHYSICALLY impossible to to commit the offence?
Yes. The offence MUST be legally possible to commit, it need not be physically possible.
26
Is there an offence for attempted manslaughter?
No. As there is no intent required under the offence of manslaughter and for 'attempts' there must be an 'intent'. An appropriate charge would be attempted murder.
27
R v Ring
In this case the offenders 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 action. The remaining elements were also satisfied.
28
How can intent be inferred when proving 'attempts'? (example of attempted burglary)
- burglars admit they went to the property with the intent to commit the burglary
- the burglars were found in possession of tools or disguises t the back door of the premises before actually entering
29
When proving intent, who decides?
Whether intent exists or not is a question of the fact; a question that the jury decides.
30
Define actus reus
Guilty Act
31
What is meant by 'sufficiently proximate to the full offence' (attempts)?
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.
32
What are some examples of 'sufficiently proximate to the full offence' under the American Model Penal Code? (6)
1. lying in wait, searching for or following the vic
2. enticing the vic t go to the scene of the contemplated crime
3. reconnoitring the scene of the contemplated crime
4. unlawfully entering a structure, vehicle, or enclosure where the contemplated crime will be committed
5. possessing, collecting, or fabricating materials to be employed in the commission of the crime
6. soliciting an innocent agent to engage in conduct constituting an element of the crime
33
R v Harpur
The court may have regarded to the conduct viewed cumulatively up to the point when the conduct in question stops. The defendants conduct may be considered in its entirety. Considering how much remains to be dine is always relevant, though not determinative
34
The test for proximity has been explained under Simester and Brooks. What are two questions that should be asked when determining the point at which mere preparation may become an attempt?
1. Has the offender done anything more than getting himself into a position from which he could embark on an actual attempt? or
2. Has the offender actually commenced execution; that is to say, has he taken a step in the actual crime itself?
* If the answer is yes, then there as been an attempt as the matter of the law.
35
What is meant by "whether in the circumstances it was possible to commit the offence or not"?
A person can be convicted if an offence that was physically impossible to commit, but cannot be convicted of an offence that was legally impossible to commit.
36
What are the 3 caselaw that relate to 'impossibility' under attempts?
1. R v Ring
2. Higgins v Police
3. Police v Jay
37
Higgins v Police
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.
38
Police v Jay
A man bought hedge clippings believing they were cannabis.
39
R v Donnelly
Where stolen property has been returned to the owner or legal title to any such property have 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.
40
Once acts are sufficiently proximate to the act, the defendant has no defence that they... (3)
- were prevented by some outside agent from doing something that was necessary to complete the offence; eg. interruption from the Police
- failed to complete the full offence due to ineptitude, inefficiency or insufficient means, eg. not enough explosives to blow up the safe
- were prevented from committing the offence because an intervening event made it physically impossible eg. removal of property before intended theft
41
What is the function of the judge and jury when proving an offence of 'attempt'?
Judge: decides that the defendants actions were more than mere preparation - the case then goes to the jury
Jury: decides that the facts are proved beyond reasonable doubt AND that the defendants acts are close enough to the full offence.
42
When are you unable to charge a person with attempt?
- where the criminality depends on recklessness or negligence, eg. manslaughter
- where an attempt to commit an offence is included within the 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 demand accompanied by the menace that constitutes the offence
43
S311 CA1961 explains 'Attempt to commit or procure commission of offence'. What does it outline?
if the maximum imprisonment is life = 10 years
any other case = not more than half the maximum punishment which he would have been liable if he had committed that offence
44
What is S66 CA1961?
S66 - Parties to offences
(1) Every one 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.
(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.
45
When must participation must have occurred? (conspiracy)
Before or during (contemporaneous with) the commission of the offence and BEFORE the completion of the offence. (if it is afterwards, it becomes accessory after the fact).
46
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.
47
What is a principal party? (parties)
Person who satisfies the acts reus and mens rea requirements of the offence. Liable under S66(1)(a).
48
What is a secondary party? (parties)
Those people whose assistance, abetment, incitement, counselling or procurement is sufficient under S66(1)(b)(c)or(d)
They do not necessarily need to be present when the offence is committed.
49
When there are multiple offenders, what are the two methods by which offenders may be considered to be principals. (parties)
Method 1: Each offender satisfies elements of offence committed
- each principal offenders may, separately, satisfy the necessary elements of the relevant offence committed.
Method 2: Each offender separately satisfies part of the acts reus
- under S66(1)(a) each offender may separately satisfy part of the acts reus and when combined with the actions of others, complete the acts reus requirement of the offence
50
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).
51
Define 'aids' (parties)
To assist in the commission of the offence, either physically or by giving advice and information.
52
Larkins v Police
While it is unnecessary that the principal should be aware that he or she is being assisted, there must be proof of actual assistance.
53
What are some examples of 'assistance'? (parties)
- keeping lookout for someone committing a burglary
- providing a screwdriver to someone interfering with a motor vehicle
- telling an associate when a neighbour is away from their house so it can be burgled
54
Define 'aiding by omission' (parties)
It arises where A, who has 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.
55
Define 'abets' (parties)
To instigate, encourage, or urge another person to commit the offence.
56
What is 'passive acquiescence' and how may it be considered as abetting? (parties)
If there is a special relationship between that person and the principal offender or where they owe a legal duty to the victim or to the general public.
57
Ashton v Police
An example of a secondary party 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 CA1961 he is deemed t be in charge of a dangerous thing.
58
R v Russell
The court held that the accused was morally bound to take active steps to save his children, but by his deliberate abstention from doing so, and by giving the encouragement and authority of his presence and approval to his wife act, he became an aider and abettor and thus a secondary offender.
59
Define 'incites' (parties)
To rouse, stir up, stimulate, animate, urge, or spur a person to commit the offence. Like a sports fan.
60
Define 'counsels' (parties)
To intentionally instigate the offence by advising a person(s) nohow 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 incitement.
There is no specific need for the person offering advice or assistance to be completely familiar with the offence intended.
61
Define 'procures' (parties)
Procurement is setting out to see that something happens and taking the appropriate steps to ensure it does. Procures requires that the secondary party deliberately causes the principal party to commit the offence. It requires a stronger connection between the secondary party and the commission of the offence than is evidenced in aiding, abetting, or enticing.
Procurement may be carried out by fraud, persuasion, words or conduct, such as an offer of payment (hit man).
62
In relation to S66(2), explain what common intention means.
Where two or more offenders form a common intention (agreement) and embark on a joint enterprise (commit an offence) together.
They can also be charges as parties to another offence if that offence was committed in order to assist the original offence. Including unusual consequences the arise from pursuing the jointly intended offence.
However where one of the offenders goes beyond what was agreed then the other(s) is not liable for the consequences of the unauthorised act.
63
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.
64
Under S66(2) what is meant by 'probable consequence"?
The offenders must actually force the likelihood that their co-offender will commit another offence when committing the original offence.
There are two qualifications to be satisfied under the general rule in relation to probable consequence. (in another question).
65
What are the two qualifications when satisfying 'probable consequence' under S66(2)?
Qualification 1:
There is no requirement that person A knowns or foresees the precise manner in which offence B is to committed by person B. Person A need only realise that an offence of that type is probable.
Qualification 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.
66
How can a person be charged as a joint enterprise to murder and manslaughter?
Murder, where they:
- intentionally helped or encouraged it, or
- foresaw murder by a confederate, as a real risk in the situation that arose
Manslaughter, 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
67
Who is an innocent agent?
Someone who is unaware of the significants of their actions. An innocent agent cannot be convicted as a secondary party. eg. waiter giving a drink of poison to victim without knowing there was poison in it.
68
How is the involvement of parties established by?
- a reconstruction of the offence committed. This would indicate the more than one person was involved, or that the principal offender had received advice or assistance
- the principal offender acknowledging or admitted that others were involved in the offence
- a suspect or witness admitting to providing aid or assistance when interviewed
- a witness providing you with evidence of another persons involvement based on their observations
- receiving information indicating that others were involved in the offence
69
How do you formulate the charge wording under S66(1)?
Before the charge wording add: was party to ...
After the charge wording add: ... in that you did:
```
aid
abet
incite
counsel
procure
```
.. in the commission of the said offence.
70
Where there is no punishment expressly provided when charged parties to an offence, S311(2) CA1961 explains. What is held in that section?
(2) 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 or she had attempted to commit that offence, unless in respect of any such case a punishment is otherwise expressly provided by this Act or by some other enactment.
71
What is the difference between:
aiding and abetting
inciting, counselling, and procuring
aiding and abetting require the presence fo someone at the scene of the offence
inciting, counselling, and procuring describe actions that occurred before the offence was carried out
72
What is S71 CA1961?
71 Accessory after the fact
(1) An accessory after the fact to an offence is one who, 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 or her, in order to enable him or her to escape after arrest or to avoid arrest or conviction.
73
What needs to be proved for accessory after the fact? (S71 CA1961) (4 things)
1. That person A, who is received,comforted, or assisted by the accessory (person B), is a party to an offence that has been committed
2. That, at the time of the receiving, comforting, or assisting person A, the accessory (person B) knows that person A was party to an offence
3. That the accessory (person B) received, comforted, or assisted person A or tampered with or actively surpassed any evidence against that person
4. That, at the time of the receiving, comforting, or assisting etc, the accessories (person B's) purpose was to enable that person (person A) to escape after arrest or to avoid arrest or conviction
74
What is the specific statutory limitation to S71(2) - accessory after the fact
You cannot be charged with being an accessory after the fact to your spouse, or your spouse and another party, or civil union.
Does not include de facto relationship or family member.
75
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.
76
R v Briggs
As with a receiving charge under S246(1), knowledge may also be inferred from wilful blindness or a deliberate abstention from making inquiries that would confirm the suspected truth.
77
What are the two circumstances where a person is considered 'wilfully blind' under accessory after the fact?
- where a person deliberately shuts their eyes and fails to inquire; this is because they knew what the answer would be, or
- 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
78
In regards to accessory after the fact, what are the three purposes of doing a deliberate act to assist another person to evade justice?
1. escape after arrest
2. avoid arrest
3. avoid conviction
79
What are the 5 intentional acts that someone must do to assist another person to escape after arrest, or avoid arrest, or avoid conviction?
- receives
- comforts
- assists
- tampers with evidence
- actively suppresses evidence
80
In relation to accessory after the fact, does the offence need to be completed?
Yes.
Re Mane, the assistance was given after the victim was shot but before they died therefore the full offence of murder had not been completed. (Instead they were charges with wilfully perverting the course of justice)
81
R v Mane
To be considered an accessory the acts done by the person must be after the completion of the offence.
82
What are some examples of 'receiving' or 'comforting'?
```
Receiving/comforting = Harbouring an offender or offering them shelter
Comforting = provides an offender with food/clothing
```
83
What are some examples of 'assisting'?
Providing transport,
acting as a look out,
identifying someone willing to purchase stolen property,
deliberately providing the authorities with false information
84
Is it possible to convicted of attempting to be an accessory after the fact?
Yes.
In R v DH, unsuccessfully attempted to dispose of a weapon used in a fatal robbery.
85
What happens when an innocent agent is used in 'accessory after the fact'?
The actions the innocent agent will be held to be the actions of the accessory.
86
S137 Criminal proceedings act outlines the Proceedings against parties to offences, accessories, and receivers. What is held in that section?
137 Proceedings against parties to offences, accessories, and receivers
(1) This section applies to every person charged—
(a) as a party to an offence (not being the person who actually committed it); or
(b) with being an accessory after the fact to any offence; or
(c) with receiving property knowing it to have been stolen or dishonestly obtained.
(2) Every person to whom subsection (1) applies may be proceeded against and convicted for the offence whether or not the principal offender or any other party to the offence or the person by whom the property was obtained has been proceeded against or convicted.
(3) Every person to whom subsection (1) applies may be proceeded against and convicted—
(a) alone as for a substantive offence; or
(b) jointly with the principal or other offender or person by whom the property was stolen or dishonestly obtained.
(4) If any property has been stolen or dishonestly obtained, any number of receivers at different times of that property, or of any part or parts of it, may be charged with substantive offences, and may be tried together.
87
Can a person still be charged with accessory after the fact if the offender is/may be acquitted?
Yes, unless the accessory conviction is inconsistent with the acquittal of the original offender.
88
What is S108 CA1961?
108 Perjury defined
- a witness making any
- assertion as to any matter of fact, knowledge, opinion, or belief
- in any judicial proceeding
- forming part of that witnesses evidence on oath
- knowing by that witness to be false and
- intended to mislead the tribunal
(1) Perjury is an assertion as to a matter of fact, opinion, belief, or knowledge made by a witness in a judicial proceeding as part of his or her 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 or her to mislead the tribunal holding the proceeding.
(2) In this section the term oath includes an affirmation, and also includes a declaration made under section 13 of the Oaths and Declarations Act 1957.
(3) Every person is a witness within the meaning of this section who actually gives evidence, whether he or she is competent to be a witness or not, and whether his or her evidence is admissible or not.
(4) Every proceeding is judicial within the meaning of this section if it is held before any of the following tribunals, namely:
(a) any court of justice:
(b) the House of Representatives or any Committee of that House:
(c) any arbitrator or umpire, or any person or body of persons authorised by law to make an inquiry and take evidence therein upon oath:
(d) any legal tribunal by which any legal right or liability can be established:
(e) any person acting as a court or tribunal having power to hold a judicial proceeding:
(f) a disciplinary officer, the Summary Appeal Court of New Zealand, or the Court Martial of New Zealand acting under the Armed Forces Discipline Act 1971.
(5) Every such proceeding is judicial within the meaning of this section whether the tribunal was duly constituted or appointed or not, and whether the proceeding was duly instituted or not, and whether the proceeding was invalid or not.
89
Under S83 Criminal Procedure Act 2011 - False statement in formal statement deemed to be perjury. What is held?
83 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 meaning of section 108 of the Crimes Act 1961 (which relates to perjury).
90
Punishment of perjury is listed under S109 CA1961. What is held in this section?
109 Punishment of perjury
(1) Except as provided in subsection (2), every one is liable to imprisonment for a term not exceeding 7 years who commits perjury.
(2) 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 imprisonment for a term not exceeding 14 years.
91
Under S110 CA1961 outlines 'false oaths'. What is it?
110 False oaths
5 years who, being required or authorised by law to make any statement on oath or affirmation, thereupon makes a statement that would amount to perjury if made in a judicial proceeding.
92
Under S111 CA1961 outlines 'false statements of declarations'. What is it?
111 False statements or declarations
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.
93
Under S112 CA1961 outlines 'evidence of perjury, false oath, or statement'. What is it?
112 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, on the evidence of 1 witness only, unless the evidence of that witness is corroborated in some material particular by evidence implicating the defendant.
94
Under S113 CA1961 outlines 'fabricating evidence'. What is it?
113 Fabricating evidence
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.
95
What are the elements of perjury?
- a witness making any
- assertion as to any matter of fact, opinion, belief, or knowledge
- in any judicial proceeding
- forming part of what witness's evidence on oath
- known by that witness to be false and
- intended to mislead the tribunal
96
Who is a witness? (perjury)
A person who gives evidence and is able to e cross-examined in a proceeding. Includes a person who is actively engaged in the process of giving evidence and/or someone who has previously given evidence.
97
What is 'assertion'? (perjury)
This is something declared or stated positively, often with no support or attempt made at furnishing evidence or proof of the assertion's accuracy.
98
What is 'matter of fact'? (perjury)
It is a term used by the courts to distinguish a particular kind of information. A fact is a thing done, actual occurrence or event, and it is presented during court proceedings in the form of witness testimony and evidence.
99
What is 'opinion'? (perjury)
Opinion in relation t a statement offered in evidence means a station of opinion that tends to prove of disprove a fact.
100
Under S24 of the Evidence Act outlines 'general admissibility of opinions'. What is it?
24 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.
101
What is 'belief'? (perjury)
Belief is a subjective feeling regarding the validity of an idea or set facts.
102
What is 'knowledge'? (perjury)
Knowing or believing a set of circumstances so as to be free from doubt.
103
What are three ways you can give evidence in court?
S4 Evidence Act 2006
a. personally in court or by affidavit
b. alternative way eg. CCTV, screens, DVD
c. any other way provided for under this act
104
What is the difference between oath, affirmation, and declaration
Oath: invokes some religious belief and says that a thing is true or right
Affirmation: Saying a thing is true or right without reference to religious belief
Declaration: A witness under 12 years old may make a declaration, which is a promise to tell the truth
105
Is there a defence if the witness later recants and informs the tribunal of the falsity of the earlier statement given?
Nahhh bitch
106
Is corroboration required when proving perjury, false oaths, and false statements?
Yes.
121 Corroboration
(1) It is not necessary in a criminal proceeding for the evidence on which the prosecution relies to be corroborated, except with respect to the offences of—
(a) perjury (section 108 of the Crimes Act 1961); and
(b) false oaths (section 110 of the Crimes Act 1961); and
(c) false statements or declarations (section 111 of the Crimes Act 1961); and
(d) treason (section 73 of the Crimes Act 1961).
(2) Subject to subsection (1) and section 122, if in a criminal proceeding there is a jury, it is not necessary for the Judge to—
(a) warn the jury that it is dangerous to act on uncorroborated evidence or to give a warning to the same or similar effect; or
(b) give a direction relating to the absence of corroboration.
107
Why do you need corroborating evidence when proving perjury, false oaths, and false statements?
To protect the 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.
108
Under S116 CA1961 outlines 'conspiring to defeat justice'. What is it?
116 Conspiring to defeat justice
7 years who conspires to obstruct, prevent, pervert, or defeat the course of justice in New Zealand or the course of justice in an overseas jurisdiction
109
What are some examples of misleading justice within S116 and S117 CA1961?
- preventing a witness from testifying
- wilfully going absent as a witness
- threatening or bribing a witness
- 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 waned person to leave the country
- arranging a false alibi
- threatening or bribing jury members
110
Under S117 CA1961 outlines
117 Corrupting juries and witnesses
7 years who—
(a) dissuades or attempts to dissuade a person, by threats, bribes, or other corrupt means, from giving evidence in any cause or matter (whether civil or criminal, and whether tried or to be tried in New Zealand or in an 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 or to be tried in New Zealand or in an overseas jurisdiction, and whether the member has been sworn as a member of a particular jury or not); or
(c) accepts any bribe or other corrupt consideration to abstain from giving evidence (whether in a cause or matter tried or to be tried in New Zealand or in an 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 or to be tried in New Zealand or in an overseas jurisdiction, and whether the member has been sworn as a member of a particular jury or not); or
(e) wilfully attempts in any other way to obstruct, prevent, pervert, or defeat the course of justice in New Zealand or the course of justice in an overseas jurisdiction.
111
When can you start a prosecution for perjury?
Where it is recommended by the courts or you are directed to do so by the commissioner of Police.
112
What is S246 CA1961?
246 Receiving
(1) Every one is guilty of receiving 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.
(2) For the purposes of this section, property that was obtained by any act committed outside New Zealand that, if it had been committed in New Zealand, would have constituted an imprisonable offence is, subject to subsection (5), to be regarded as having been obtained by an imprisonable offence.
(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 thief or any other person, possession of, or control over, the property or helps in concealing or disposing of the property.
(4) If—
(a) any property stolen or obtained by any other imprisonable offence has been returned to the owner; or
(b) legal title to any such property has been acquired by any 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.
(5) If a person is charged with an offence under this section and the property was obtained by an act committed outside New Zealand, it is to be presumed, unless the person charged puts the matter at issue, that the doing of the act by which the property was obtained was an offence under the law of the place where the act was done.
113
What is S247 CA1961?
247 Punishment of receiving
Every person who is guilty of receiving is liable as follows:
(a) if the value of the property received exceeds $1,000, to imprisonment for a term not exceeding 7 years:
(b) if the value of the property received exceeds $500 but does not exceed the sum of $1,000, to imprisonment for a term not exceeding 1 year:
(c) if the value of the property received does not exceed $500, to imprisonment for a term not exceeding 3 months.
114
What are the elements of receiving?
- act of receiving
- any property stolen, or
- obtained by any other imprisonable offence
- knowing that at the time of receiving the property that it had been stolen or obtained by any other imprisonable offence, or
- being reckless as to whether or not the property had been stolen or so obtained
115
What are the three elements that requires satisfaction when proving the charge 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
116
When is the act of receiving complete?
S246(3) CA1961
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
117
R v 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 had previously been stolen or dishonestly obtained.
118
R v Cox
Possession involves two elements. The first, the physical element, is actual or potential physical custody or control. The second, the mental element, is a combination of knowledge and intention: knowledge in the mental sense of an awareness by the accused that the substance is in his possession and an intention to exercise possession.
119
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
120
Define property
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
121
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
122
Define title
A right or claim to the ownership of property. It is the legal right to possession of that thing.
123
What are 3 ways to avoid title?
- communicating directly with the deceiver
- taking all reasonable and possible steps to bring it to the deceivers attention eg. sending an email/letter
- advising the police of the circumstances of the deception
124
If title has not been avoided prior to the 'receiver' having possession of the goods, can they be convicted of receiving?
No, as the deceiver has voidable title of that property.
125
R v Kennedy
The guilty knowledge that the thing has been stolen or dishonestly obtained must exist at the time of receiving.
126
R v Harney
Recklessness means the conscious and deliberate taking of an unjustified risk. In NZ, it involves proof that the consequence complained of could well happened, together with an intention to continue the course of conduct regardless of risk.
127
What are some circumstantial evidence to prove guilty knowledge of a receiver?
- possession of the recently stolen property
- nature of the property (type, value, quantity)
- purchase at a gross undervalue
- secrecy in receiving the property
- receiving the goods at an unusual time/place/way
- concealment of property to avoid discovery
- removal of identifying marks or features
- lack of original packaging
- mode of payment
128
Does propensity evidence hold relevance in a receiving charge?
Yes, and may where permitted, be introduced as evidence in proceeding in relation to a receiving charge.
129
Does the doctrine of recent possession apply to a receiving charge?
Yes. Only in cases where a defendant is found in possession of property recently stolen or obtained dishonestly.
130
What are some examples where Police are deemed to have restored the stolen property to the rightful owner?
- inspection and recovery of a stolen car
- once stolen property has been recovered
- police surveillance or observations of stolen property might not equate to possession however if Police have immobilised the vehicle prior to surveillance then it will
131
What is S243 CA1961?
243 Money laundering
(1) For the purposes of this section and sections 243A, 244 and 245,— act includes an omission
CONCEAL, in relation to property, means to conceal or disguise the property; and includes, without limitation,—
(a) to convert the property from one form to another:
(b) to conceal or disguise the nature, source, location, disposition, or ownership of the property or of any interest in the property
DEAL WITH, in relation to property, means to deal with the property in any manner and by any means; and includes, without limitation,—
(a) to dispose of the property, whether by way of sale, purchase, gift, or otherwise:
(b) to transfer possession of the property:
(c) to bring the property into New Zealand:
(d) to remove the property from New Zealand
INTEREST, in relation to property, means—
(a) a legal or equitable estate or interest in the property; or
(b) a right, power, or privilege in connection with the property
OFFENCE means an offence (or any offence described as a crime) that is punishable under New Zealand law, including any act, wherever committed, that would be an offence in New Zealand if committed in New Zealand
proceeds, in relation to an offence, means any property that is derived or realised, directly or indirectly, by any person from the commission of the offence
PROPERTY means real or personal property of any description, whether situated in New Zealand or elsewhere and whether tangible or intangible; and includes an interest in any such real or personal property.
(2) Subject to sections 244 and 245, every one is liable to imprisonment for a term not exceeding 7 years who, 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.
(3) Subject to sections 244 and 245, every one is liable to imprisonment for a term not exceeding 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.
(4) For the purposes of this section, a person engages in a money laundering transaction if, in concealing any property or by enabling any person to conceal any property, that person—
(a) deals with that property; or
(b) assists any other person, whether directly or indirectly, to deal with that property.
(4A) Despite anything in subsection (4), the prosecution is not required to prove that the defendant had an intent to—
(a) conceal any property; or
(b) enable any person to conceal any property.
(5) In any prosecution for an offence against subsection (2) or subsection (3),—
(a) it is not necessary for the prosecution to prove that the defendant knew or believed that the property was the proceeds of a particular offence or a particular class of offence:
(b) it is no defence that the defendant believed any property to be the proceeds of a particular offence when in fact the property was the proceeds of another offence.
(6) Nothing in this section or in sections 244 or 245 limits or restricts the operation of any other provision of this Act or any other enactment.
(7) To avoid doubt, for the purposes of the definition of offence in subsection (1), New Zealand law includes, but is not limited to, the Misuse of Drugs Act 1975.
132
S245 CA1961 outlines 'Application of section 243 to acts outside New Zealand'. What is held in that section?
245 Application of section 243 to acts outside New Zealand
(1) Section 243 applies to an act that has occurred outside New Zealand 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 New Zealand, and no additional requirement exists for the act to be an offence in the place where and when it occurred.
(2) If a person is charged with an offence under section 243 and subsection (1)(a) applies, it is to be presumed, unless that person puts the matter at issue, that the act was an offence under the law of the place where and when it occurred.
133
What are the three stages of the money laundering cycle?
1. Placement - cash enters the financial system, eg. offender makes money from selling cannabis and deposits the proceeds into an associates bank account
2. Layering - money is involved in a number of transactions, eg. the associate transfers the money into an account held by a shell comment that the offender is the director of
3. Integration - money is mixed with lawful funds or integrated back into the economy with the appearance of legitimacy, eg. the money is declared as revenue for the company, tax is paid, and the offender pays himself director fees or a salary out of the company account
134
What are 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
135
What is the purpose of the forfeiture regime under S3 of the Criminal Proceeds (Recovery) Act 2009?
3 Purpose
(1) The primary purpose of this Act is 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.
(2) The criminal proceeds and instruments forfeiture regime established under this Act proposes to—
(a) eliminate the chance for persons to profit from undertaking or being associated with significant criminal activity; and
(b) deter significant criminal activity; and
(c) reduce the ability of criminals and persons associated with crime or significant criminal activity to continue or expand criminal enterprise; and
(d) deal with matters associated with foreign restraining orders and foreign forfeiture orders that arise in New Zealand.
136
What is an assets forfeiture order (AFO)?
It is issued by the High Court on application on the balance of probabilities that specific assets which have been acquired have been tainted by significant criminal activity.
137
What is tainted property?
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 or indirectly derived from, more than 1 activity if at least 1 of those activities is a significant criminal activity
138
What is Qualifying instrument for forfeiture offence?
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
139
What are significant criminal activity? (S6 Criminal Proceeds (Recovery) Act 2009)
6 Meaning of significant criminal activity
(1) In this Act, unless the context otherwise requires, 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, 1 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.
(2) A person is undertaking an activity of the kind described in subsection (1) whether or not—
(a) the person has been charged with or convicted of an offence in connection with the activity; or
(b) the person has been acquitted of an offence in connection with the activity; or
(c) the person’s conviction for an offence in connection with the activity has been quashed or set aside.
(3) Any expenses or outgoings used in connection with an activity of the kind described in subsection (1) must be disregarded for the purposes of calculating the value of any property, proceeds, or benefits under subsection (1)(b).
140
What is an instrument of crime?
instrument of crime means—
(a) property used (wholly or in part) to commit or facilitate the commission of a qualifying instrument forfeiture offence; and
(b) in relation to a qualifying instrument forfeiture offence that is an offence against section 8(1) or (2A) of the Terrorism Suppression Act 2002, includes funds (as defined in section 4(1) of that Act) allocated for the purposes of committing that offence; and
(c) in relation to any property referred to in paragraphs (a) and (b), the proceeds of any disposition of that property or any other property into which that property is converted, after the commission of the qualifying instrument forfeiture offence, except to the extent provided otherwise by any order of a court under this Act or the Sentencing Act 2002, excluding any severable interest or granting relief
141
When doing an application to restrain an instrument of crime, what does the assessment process determine?
- the value of the asset
- the equity in the asset
- any third party interests in the asset
- the cost of action in respect of the asset
142
What is required to go in the affidavit for an application for restraining order relating to instrument of crime?
The OC will need to complete an affidavit outlining:
- OC details
- Offenders details, charges, c criminal convictions
- SW - nature of the offending discovered at or involving the property (asset) concerned
- Admissions made during interviews
- Property. Described property sought to be restrained and its value. Show the offender owns or has custody or control
143
What happens when there is a restraining order and no convictions found?
Any restraining order will lapse and there will be no instrument of forfeiture.
144
Who can apply for restraining orders?
The Commissioner of Police has delegated these functions solely to the Asset Recovery Unit (ARU).
145
For a restraining order relating to the respondents property, what must the court be satisfied of?
S25(1) Criminal Proceeds (Recovery) Act 2009
Reasonable grounds to believe that the respondent has unlawfully benefited from 'significant criminal activity' and that the respondent has an interest in the property to be restrained.
146
For a restraining order relating to an instrument of crime, what must the court be satisfied of?
S26(1) Criminal Proceeds (Recovery) Act 2009
Two criteria must be met:
- the court must be satisfied that the respondent will be so charged within 48 hours AND
- RGTB that the property which will be subject of the order was used to commit, or to facilitate the commission of, the 'qualifying instrument forfeiture offence'
147
How long is a restraining order valid for?
One year from the date on which the order is made. The court may also issue an extension before the expiry of the original order which is also valid for one year.
148
When interviewing a suspect about money laundering or where proceeds recovery action is to be considered, list some points to cover
- suspects legitimate income
- suspects illegitimate income
- expenditure
- assets
- liabilities
- acquisition of financial records, from banks, financial companies, loan sharks, family trust documents
- clarification of documentary evidence located as per above
149
What was held in R v Gibbs? (accessory after the fact)
Gibbs highlights the acts done by the accessory must have helped the other person in some way to evade justice
150
What was held in R v Levy? (accessory gayer the fact)
Levy had done a deliberate act in relation to the evidence against the offender for the purpose of assisting that offender to evade justice.
Not necessary to prove that what the accused destroyed would, in fact, have been evidence had it not been destroyed.
