Association Offences

Question 1

Conspiracy (act, section, category, penalty and elements)

Answer 1

CA 1961 s310

Category:
Same as principal offence

Penalty:
equal to principal offence to a max of 7 years

Elements:
- 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 omitting in New Zealand would be an offence

Question 2

Parties (act, section, category, penalty and elements)

Answer 2

CA 1961 s66

Category:
Same as principal offence

Penalty:
Same as for principal offence

Elements:
- commits
- does or omits for purpose of aiding
- abets
- incites, counsels, procures

where 2 or more form a common intention, each is party to every offence committed by any of them in carrying out the common intention, if that offence was known to be a probable consequence

Question 3

Accessory (act, section, category, penalty and elements)

Answer 3

CA 1961 s 71

Category:
Same as principal offence

Penalty:
Principal = life then accessory = 7
Principal = >10 then accessory = 5
All others, accessory = half of Principal

Elements:
- knowing a person to be a party to an offence
- receives, comforts or assists that person OR
- tampers with or suppresses evidence against that person
- with intent to enable that person to avoid arrest or conviction, or escape after arrest

Question 4

Attempts (act, section, category, penalty and and elements)

Answer 4

CA 1961 s 72

Category:
Same as for principal offence

Penalty:
Principal = life then attempt =10
All other cases, attempt = half of Principal

Elements:
- intent
- act
- proximity

Question 5

MULCAHY V R

Answer 5

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 to carry it (the intended offence) into effect, the very plot is an act in itself…

Question 6

R V SANDERS

Answer 6

A conspiracy does not end with the making of the agreement. The conspiratorial agreement continues in operation and therefore in existence until it is ended by completion of its performance or abandonment or in any other manner by which agreements are discharged

Question 7

R V WHITE

Answer 7

Where you can prove thay 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

Question 8

Intent

Answer 8

A deliberate act (or omission) to bring about a specific result

Question 9

Deliberate

Answer 9

More than accidental or involuntary

Question 10

Act

Answer 10

To take action or do something, to bring about a particular result

Question 11

Omission

Answer 11

The action of excluding or leaving out something or someone, a failure to fulfill a moral or legal obligation

Question 12

Result

Answer 12

Aim, object or purpose

Question 13

R V RING

Answer 13

Offender convicted of attempted theft even though the item he attempted to steal was not inside the pocket he put his hand into. Had necessary intent and completed the required action

Question 14

R V HARPUR

Answer 14

The court may have regard 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 done … is always relevant, though not determinative

Question 15

HIGGINS V POLICE

Answer 15

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

Question 16

POLICE V JAY

Answer 16

A man bought hedge clippings believing they were cannabis

Question 17

R V DONNELLY

Answer 17

Where stolen property has been returned to the owner or legal title to any such property has been acquired by any person, it is not an offence to subsequently receive it, even though the receiver may know that the property had previously been stolen or dishonestly obtained

Question 18

American Model Penal Code examples of attempts

Answer 18

• Lying in wait, searching for or following the contemplated victim
• enticing the contemplated victim to the scene
• reconnoitoring the scene of the contemplated crime
• unlawfully entering a vehicle, place, structure or enclosure in which contemplated crime is to occur
• possessing, fabricating or collecting materials to be employed in the commission of the contemplated crime
• soliciting an innocent agent to engage in conduct constituting an element of the crime

Question 19

No defence to attempts

Answer 19

• defendant was prevented by some outside agent from doing something that was necessary to complete the full offence
• failed to complete the full offence due to ineptitude, inefficiency or insufficient means
• prevented from committing the full offence because of some intervening event that made it physically impossibe

Question 20

R V PENE

Answer 20

A party must intentionally help or encourage - it is insufficient if they were reckless as to whether the principal was assisted or encouraged

Question 21

R V RENATA

Answer 21

Held that where the principal offender cannot be identified, it is sufficient to prove that each individual accused must have either been the principal or a party in one of the ways contemplated by s66

Question 22

LARKINS V POLICE

Answer 22

While it is unnecessary that the principal should be aware that he or she is being assisted, there must be proof of actual assistance

Question 23

ASHTON V POLICE

Answer 23

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 CA 1961 he is deemed to be in charge of a dangerous thing.

Question 24

R V RUSSELL

Answer 24

Held that the accused was morally bound to take active steps to save his children, but by his deliberate abstention from so doing, and by giving the encouragement and authority of his presence and approval to his wife’s act he became a aider and abettor and thus a secondary offender

Question 25

R V BETTS AND RIDLEY

Answer 25

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

Question 26

Principal party

Answer 26

Person who actually commits the offence, has both men's rea and actus reus. Can be more that one for an offence.

Question 27

Secondary party

Answer 27

A person who satisfies one of the criteria under s66 (aids, abets, incites, counsels or procures)

Question 28

Aids

Answer 28

Assist either physically or by giving advice and information

Question 29

Abets

Answer 29

Instigate or encourage. Passive acquiescence may be considered abetting in some situations - similar to aiding by omission - where there is a 'special relationship' (legal or moral duty) and a failure to act this could be considered abetting.

Question 30

Incite

Answer 30

Rouse, stir up, stimulate, animate, urge, spur on

Question 31

Counsels

Answer 31

Intentionally instigate by advising a person on how best to commit an offence, or planning the commission of an offence for another person

Question 32

Procures

Answer 32

Setting out to see that something happens and taking appropriate steps to ensure that it does To cause an offence or ensure it's commission by knowingly and intentionally obtaining another person to carry it out

Question 33

Common intention

Answer 33

2 or more offenders agree to and embark on a joint enterprise together (an offence)

Question 34

Innocent agent

Answer 34

Someone who is unaware of the significance of their actions. Not liable as a secondary party.

Question 35

R V CROOKS

Answer 35

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

Question 36

R V BRIGGS

Answer 36

As with a receiving charge under s246(1), knowledge may also be inferred from wilfully blindness or a deliberate abstention from making inquiries that would confirm the suspected truth.

Question 37

R V MANE

Answer 37

To be considered an accessory the acts done by the person must be after the completion of the offence

Question 38

R V GIBBS

Answer 38

Highlighted that the acts done by an accessory must be to assist another person in some way to evade justice

Question 39

R V LEVY

Answer 39

Defendant convicted as accessory for removing counterfeiting equipment after principal offender arrested, with intent to assist principal offender to evade justice. Held that he had done a deliberate act in relation to the evidence against the offender for the purpose of assisting that offender to evade justice

Question 40

Wilful blindness

Answer 40

Intentional ignorance, deliberately not making an enquiry to confirm a belief

Question 41

Recieves

Answer 41

Harboring or sheltering an offender

Question 42

Comforts

Answer 42

Providing an offender with things (eg food, clothing)

Question 43

Assists

Answer 43

Wide variety of things eg transport, lookout, finding buyers of stolen property, misleading authorities etc

Question 44

Tampers

Answer 44

Alter (evidence)

Question 45

Suppresses

Answer 45

Concealing or destroying (evidence)

Question 46

Perjury (act, section, category, penalty and elements)

Answer 46

CA 1961 s108 Category: 3 Penalty: Principal = <3, perjury = 7 Principal = >3, perjury = 14 Elements: - a witness making any - assertion as to any matter of fact, opinion, belief or knowledge - in any judicial proceeding - forming part of that witnesses evidence on oath - whether in open court, or by affidavit or otherwise - known by that witness to be false and - intended to mislead the tribunal

Question 47

Conspiring to defeat justice (act, section, category, penalty and elements)

Answer 47

CA 1961 section 116 Category: 3 Penalty: 7 yrs Elements: - conspires to obstruct OR prevent OR pervert OR defeat -the course of justice

Question 48

Witness

Answer 48

Person who gives evidence and is able to be cross-examined in a proceeding

Question 49

Assertion

Answer 49

Something declared or stated positively, often with no support or attempt made at furnishing evidence or proof of the assertions accuracy

Question 50

Fact

Answer 50

A thing done, an actual occurrence or event, and it is presented during court proceedings in the form of witness testimony and evidence

Question 51

Opinion

Answer 51

A statement that tends to prove or disprove a fact. Only admissible under s24 and 25 of the Evidence Act 2006 (admissibility of lay person and expert opinion evidence)

Question 52

Belief

Answer 52

Subjective feeling regarding the validity of an idea or set of facts. More than suspicion but less than knowledge. Formed as a result of considering available evidence

Question 53

Oath

Answer 53

Declaration before a person who has authority to administer an oath, which invokes some religious belief and says that a thing is true or right

Question 54

Affirmation

Answer 54

Verbal or written declaration before a person who has authority to administered an oath, saying that a thing is true or right without reference to religious belief

Question 55

Declaration

Answer 55

Promise to tell the truth

Question 56

Judicial proceeding

Answer 56

- Court of Justice - house of representative - any person authorised by law to make an enquiry and take evidence therein on oath - legal tribunal by which any legal right or liability can be established - any person having the power to hold a judicial proceeding - disciplinary officer - appeal court - Court martial

Question 57

Receiving (act, section, category, penalty and elements)

Answer 57

CA 1961 s246 Category: Depends on value Penalty: Value >$1000 = 7yrs Value $500-1000 = 1 yr Value <$500 = 3 months Elements: - act of receiving - any property stolen OR obtained by any other imprisonment 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

Question 58

R V LUCINSKY

Answer 58

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

Question 59

CAMERON V R

Answer 59

Recklessness is established if: A) the defendant recognized that there was a real possibility that: - his or her actions would bring about the proscribed result; &/or - that the proscribed circumstances existed; & B) having regard to that risk those actions were unreasonable

Question 60

R V COX

Answer 60

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 sense of an awareness by the accused that the substance is in his possession and an intention to exercise possession

Question 61

CULLEN V R

Answer 61

There are four elements of possession for receiving: 1) awareness that item is where it is 2) awareness that the item has been stolen 3) actual or potential control of the item 4) an intention to exercise that control over the item

Question 62

R V KENNEDY

Answer 62

The guilty knowledge that the thing has been stolen or dishonesty obtained must exist at the time of receiving

Question 63

Property (general)

Answer 63

Real and personal property, any estate or interest in any real and personal property, money, electricity, and any debt, and anything in action, and any other right or interest

Question 64

Theft

Answer 64

- dishonesty - without claim of right - takes OR deals with - any property - with intent to permanently deprive the owner of the property or any interest in the property

Question 65

Title

Answer 65

A right or claim to the ownership of property

Question 66

Reckless

Answer 66

Conscious and deliberate taking of unjustified risk

Question 67

Real possibility

Answer 67

Could well happen

Question 68

Doctrine of recent possession

Answer 68

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.

Question 69

Conceal

Answer 69

In relation to property: - comceal or disguise the property - convert from one form to another - conceal or disguise the nature, source, location, disposition or ownership of the property or of any interest in the property

Question 70

Interest

Answer 70

A legal or equitable estate or interest in the property; or a right, power or privilege in connection with the property

Question 71

Deal with

Answer 71

In any manner or by any means, including to dispose of the property (by gift, sale or otherwise), transfer possession, bring into NZ, remove from NZ

Question 72

Offence

Answer 72

An offence punishable under NZ law including any act, wherever committed that would be an offence in NZ if committed in NZ

Question 73

Proceeds

Answer 73

In relation to any offence, means any property that is derived or realised, directly or indirectly, by any person from the commission of the offence

Question 74

Money laundering cycle

Answer 74

PLACEMENT - cash enters financial system LAYERING - money is involved in a number of transactions INTEGRATION - money is mixed with lawful funds or integrated back into the economy with the appearance of legitimacy

Question 75

Tainted property

Answer 75

Wholly or partly been acquired or derived (directly or indirectly) from significant criminal activity Includes any property from more than 1 activity if at least 1 of the activities is a significant criminal activity

Question 76

Significant criminal activity

Answer 76

Offences punishable by 5 years or more imprisonment OR from which proceeds are $30,000 or more

Question 77

Unlawfully benefitted from criminal activity

Answer 77

Knowingly derived a benefit from significant criminal activity (whether or not that person undertook or was involved in that activity)

Question 78

Instrument of crime

Answer 78

Property used to commit or facilitate the commission of a qualifying instrument forfeiture offence; funds used to commit terrorism; proceeds of any disposition of that property or any other property into which that property is converted, after the commission of the qualifying offence

Question 79

Qualifying instrument forfeiture offence

Answer 79

Offence punishable by 5 years or more imprisonment AND includes any attempt, conspiracy, accessory after the fact

Question 80

Money Laundering (act, section, category, penalty and elements)

Answer 80

CA 1961 s243 Category: 3 Penalty: 7 yrs Elements: - in respect of 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 A person engages in a money laundering transaction if, in concealing any property or by enabling any other person to conceal any property, deals with that property or assists any other person, directly or indirectly, to deal with that property

Question 81

Money laundering transaction

Answer 81

In concealing any property, or enabling any person to conceal any property, deals with the property or assists any other person to deal with the property (directly or indirectly)

Question 82

Conspiracy (key case law and definitions)

Answer 82

Case Law: Mulcahy v R (definition) R v Sanders (ending) R v White (identity) Definitions: Intent (incl. Deliberate, act, omission, result)

Question 83

Attempts (key case law and definitions)

Answer 83

Case Law: R v Ring (physically impossible) R v Donnelly (legally impossible) R v Harpur (entire conduct) Police v Jay (example) Higgins v Police (example) Definitions: Intent (incl. Deliberate, act, omission, result)

Question 84

Parties (key case law and definitions)

Answer 84

Case Law: R v Betts and Ridley (liability) R v Pene (intent) R v Renata (identity) Larkins v Police (awareness) Ashton v Police (example) R v Russell (moral duty) Definitions: Principal party Secondary party Intent (incl. Deliberate, act, omission, result) Aids Abets Incite Counsel Procure Common intention Innocent agent Probable consequence

Question 85

Accessory (key case law and definitions)

Answer 85

Case Law: R v Crooks (knowledge) R v Briggs (knowledge) R v Mane (party v accessory) R v Gibbs (intent) R v Levy (example) Definitions: Wilful blindness Receives Comforts Assists Tampers Suppresses Intent (incl. Deliberate, act, omission, result) Knowledge

Question 86

Receiving (key case law and defintions)

Answer 86

Case Law: R v Lucinsky (property) Cameron v R (reckless) R v Donnelly (legally impossible) R v Cox (possession) Cullen v R (possession) R v Kennedy (knowing at time) Definitions: Property Theft Title Reckless Deliberate Real possibility Knowledge Doctrine of recent possession

Question 87

Property (money laundering)

Answer 87

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

Question 88

Perjury (key case law and definitions)

Answer 88

Case Law: Nil Definitions: Witness Assertion Fact Opinion Belief Knowledge Oath Affirmation Declaration Judicial proceeding

Question 89

Money laundering (key case law and definitions)

Answer 89

Case Law: Nil Definitions: Property Reckless (incl deliberate and unjustified) Conceal Deal with Interest Offence Proceeds Money laundering transaction Money laundering cycle Knowledge

Question 90

Criminal proceeds (key case law and definitions)

Answer 90

Case Law: Nil Definitions: Tainted property Significant criminal activity (SCA) Unlawfully benefitted from SCA Instrument of crime Qualifying Instrument of Crime Offence