Association Offences Flashcards
(177 cards)
1
Q
Conspiracy - definition
A
A conspiracy is an agreement between two or more people to commit an offence.
A conspiracy occurs before the intended offence is committed.
A conspiracy comes after intent and before the attempt to commit the offence.
2
Q
Conspiracy - When the charge of conspiracy if appropriate
A
When the intended offence had not actually been committed and there is insufficient evidence to prove an attempt.
3
Q
Conspiracy - Legislation
A
Section 310 C.A.1961
1. Subject to provisions of subsection (2) of this section, everyone who conspires with any person to commit any offence, or to do or omit, in any party of the world, anything of which the doing or omission in NZ would be an offence, is liable to imprisonment for a team not exceeding 7 years if the maximum punishment for that offence is 7 years imprisonment, and in any other case is liable to the same punishment as if he 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 anyone if charged with conspiring to do or omit anything anywhere outside NZ, it is a defense to prove that the doing or omission of the act to which the conspiracy relates was not an offence under the law if the place where it was, or was to be, done or omitted.
4
Q
Conspiracy - Elements
A
- Conspires
- With any person
- To commit any offence or
- To do or omit, in any party of the world
- Anything of which the doing or omission in NZ would be an offence
5
Q
Conspiracy - Mulcahy v R (not only intention but also agreement)
A
MULCAHY v R
A conspiracy consists not merely in the intention of two or more, but in the agreement of to or more to do an unlawful act, or lawful act by unlawful means. So long as such a design rests on 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.
Where there is only the intention to commit an offence without agreement, then no offence is committed.
6
Q
Conspiracy - Omission
A
The agreement between the parties to commit an offence may also involve an omission (failure to act) as oppose to action - the commission of an offence.
I.e. security deliberately fails to lock a door to allow the associates to gain entry and commit burglary.
7
Q
Conspiracy - Withdrawing from the conspiracy agreement (who is guilty/not guilty)
A
A person is guilty of conspiracy who:
• Withdraws from the agreement;
• Becomes a party to the agreement after it has been made.
A person is not guilty of conduct who:
• Withdraws before the agreement has been made.
8
Q
Conspiracy - Completion of conspiracy (when offence is complete)
A
The offence is complete as soon as the agreement is made with required intent.
9
Q
Conspiracy - R v Sanders (When conspiracy ends)
A
R v Sanders
Conspiracy does not end with the making of the agreement. The conspirational 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.
10
Q
Conspiracy - Agreement - actus reus
A
- Actus Reus of conspiracy is the actual agreement between two or more persons to commit an offence.
- Actus Reus can involve physical act/words/gesture used by the conspirators to make an agreement.
- The offence does not have to be committed.
- If the offence is carried out - the appropriate charge is attempt or actual commission of the offence.
11
Q
Conspiracy - Simple verbal agreement will suffice.
A
There is no need for the conspirators to decide how they will actually commit the offence.
Mere presence or knowledge or an intention to commit an offence does not amount to conspiracy. There must be an agreement to commit the offence.
12
Q
Conspiracy - Agreement - mens rea
A
Mens Rea:
• Intention to agree (by those who involved)
• Intention to pursue relevant course of conduct (by those who involved)
The offender must intent to commit the full offence.
If there is no intent - there is no offence.
13
Q
Conspiracy - Intent
A
In a criminal law context there are two specific types of intention in an offence.
Firstly, there must be an intention to effect the act.
Secondly, there must be an intention to get a specific result.
Intent means that the act or omission must be done deliberately.
The act or omission must be more than involuntary or accidental.
14
Q
Conspiracy - Proving intent
A
The onus is on the persecution to prove the offender’s intent beyond reasonable doubt.
A good practice to support any admissions/confessions with circumstantial evidence such as:
• Action/Words before, during, after the offence
• Surrounding circumstances
• Nature of the act
15
Q
Conspiracy - Two or more people
+
R v White (unknown identity)
A
Proven circumstantially - a person cannot conspire alone, there must be another conspirator.
R v White (unknown identity)
Where you can prove that a suspect conspired with other parties (one or more people) whose identity are unknown, that suspect can still be convicted even if the identity of the other parties is never established and remains unknown.
16
Q
Conspiring with spouse or partner - Legislation
A
Section 67 C.A.1961
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 or any other person.
17
Q
Act and omission - definition
A
Act:
To take action or to do something, to bring about a particular result.
Omission:
The action of excluding or leaving out someone or something, a failure to fulfill a moral or legal obligation.
The purpose of the act/omission must be so that the offense can be facilitated.
18
Q
Conspiracy - Jurisdiction
A
- A person charged with conspiracy need not have been in NZ at the time of the act/omission/event.
- Acts/omissions forming part of the offense need not be done in NZ.
- To conspire to commit an offence in NZ is an offence.
- To conspire to do/omit anything in any party of the world, the doing/omitting of which would be an offence if done/omitted in NZ it also an offence.
19
Q
Conspiracy - Conspiracy entered overseas
A
NZ courts have no jurisdiction over a conspirator who enters into conspiracy overseas and who never comes to NZ.
NZ courts have jurisdiction only if the offender later is physically present in NZ and act in continuance of the conspiracy.
20
Q
Conspiracy - Conspiracy to commit an offence overseas
A
Under section 310(1) it is an offence to conspire to commit an offence or to do or omit anything, in any party of the world, that would be an offence in NZ.
Under section 310(3) it is a defence to prove that the doing or omission of the act to which conspiracy relates was not an offence under the law of that place where it was or was to be done or omitted.
21
Q
Conspiracy - Conspiracy between parties in NZ and other country
A
The court will take view that the conspiracy was formed in both countries simultaneously, and given that NZ is one of those countries, it would lie within jurisdiction of NZ courts.
22
Q
Conspiracy - Admissibility of evidence
A
There must be:
• Common aim to commit an offence and
• Intention to effect the aim
Anything a conspirator does/says to further the common aim is admissible against the co-offender.
This is an exemption to hearsay rule and as such conspirators should be jointly charged.
However, it does not include explanations after the offence had been committed.
Then, the explanation is evidence only against the person making it.
There must be independent evidence of the conspiracy for an offender’s evidence to be admitted as evidence against his co-offender.
23
Q
Conspiracy - conspirator is incapable
A
A person can be charged with conspiracy in the circumstances where that person himself is incapable to carry out the substantive offence.
24
Q
Conspiracy - specific offences
A
C.A. 1961 and MODA1975 have some specific provisions for conspiracy to commit certain offences (murder, piracy, making false accusations, etc), in those cases action is to be taken under the relevant provisions. In all other cases section 310 applies.
25
Conspiracy - investigation - witness
Interview witness covering the following:
1. ID of people present at the time of the agreement
2. With whom the agreement was made
3. What offence was planned
4. Any acts taken to further common purpose
26
Conspiracy - Investigation - Suspect
Interview suspect to establish the following:
1. Existence of agreement to commit an offence, OR
2. Existence of agreement to do/omit something that would amount to an offence
3. ID of people involved in an agreement
4. Intent of people involved in an agreement
5. Whether was anything said/written/done to further common purpose
27
Conspiracy - investigation - search warrant
Consider SW, interception of e-mails/phone calls/social media to locate evidence to support the charge.
28
Conspiracy - Prosecution - Charging
- If the commission of the offence can be proved, a person should not be charged with conspiracy.
- Although a person can be charged with conspiracy if a charge of substantive offence does not represent the total criminality.
(i. e. A and B burn a house and then conspire to murder witness. Arson - substantive charge, conspiracy to murder - conspiracy charge)
Charging with both, substantive charge and related conspiracy charge is not appropriate because:
1. Evidence admissible on conspiracy charge may have prejudicial effect in relation to other charges
2. Judge may disallow the evidence as they may be too prejudicial
3. Addition of conspiracy charge may complicate and prolong trial
4. Where the charger of conspiracy is not founded on evidence, it may be quashed
5. Each charging document may be heard in separate trial (severance)
29
Conspiracy - NCO approval
Supervisor is to evaluate evidence and is to approve conspiracy charge.
30
Attempt - Legislation
Section 72 C.A.1961 - Definition of attempt
1. Everyone who, having an intent to commit an offence, does or omitts 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.
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.
31
There conditions of attempt and what must be proved
All three conditions must apply:
1. Intent (mens rea) - to commit an offence
2. Act (actus reus) - done/omitted something to achieve the aim
3. Proximity - act/omission was sufficiently close
In addition to that:
• It must be legally possible to commit an offence
• A person can be convinced if it was physically impossible to commit an offence
In each case the following must be proved:
1. Suspect's ID
2. Suspect intended to commit an offence
3. Suspect did/omitted something to achieve his object
32
Attempt - intent must be established
It must be shown that the accused intended to commit a substantial offence.
There must be intent. Recklessness or negligence is not sufficient.
33
Attempt - proving intent
The intent may be inferred from:
• The act itself (what they did)
• Admission/confession (what they said)
34
R v Ring (offender's intent)
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 be able to be convicted of an 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.
35
Attempt - intention - question of fact
Whether the intent exist or not is a question of fact.
| The jury is to decide.
36
Attempt - Actus Reus
Does or omitts an act for the purpose of accomplishing his object.
Referred to physical action/conduct which constitutes an element of an offence.
37
Attempt - Act must be sufficiently proximate to the full offence
The accused must have started to commit the full offence and have gone beyond the phase of mere preparation.
38
Attempt - Acts that may constitute an attempt
Attempt - Acts that may constitute an attempt
1. Lying in wait, searching for or following a contemplated victim
2. Inciting the victim to go to the scene of contemplated crime
3. Recce of the scene of the contemplated crime
4. Unlawfully entering a structure or vehicle in which it is contemplated that the crime will be committed
5. Possessing/collecting material to be employed in the commission of the crime
6. Soliciting an innocent agent to engage in conduct constituting an element of the crime
39
Attempt - Several facts together may constitute an attempt
The actions need not be considered in isolation and may be viewed collectively.
40
R v Harpur
R v Harpur
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.
41
Attempt - proximity test
The determination of proximity comes down to circumstances which exist for each individual offence under investigation.
The accused's action must be immediately or sufficiently proximate to the intended offence.
Attempt - test for proximity
• Has the offender done anything more than getting himself into a position from which he could embark on an actual attempt? OR
• Has the offender actually commenced execution? Has the offender taken a step t in the actual crime itself?
"yes" - attempt
"no" - preparation / not an offence
42
Attempt - proximity is a question of law
The judge is to decide on proximity based on the assumption that the facts of the case are proved.
43
Attempt - elements to help to determine proximity
Take into consideration:
1. Fact
2. Degree
3. Common sense
4. Seriousness of the offence
44
Attempt - impossibility
"whether in the circumstances it was possible to commit an offence or not" referred to physical or factual impossibility, not to a legal impossibility.
Person can be convicted of an offence which was physically impossible to commit, but cannot be convicted of an offence which was legally impossible to commit.
45
Attempt - Act physically/factually impossible
Act in question amounts to the offence, but the offender is unable to commit it due to interruption or any other circumstances beyond his control.
46
Higgins v Police (cannabis was not cannabis)
Police v Jay
Higgins v Police
Where plants are being cultivated as cannabis are not in fact cannabis it is physically, not legally, impossible to cultivate such prohibited plant. Accordingly, it is possible to commit the offense of attempting to cultivate cannabis.
Police v Jay
A man bought hedge clipping believing they were cannabis.
47
Attempt - Act legally impossible
+
R v Donnelly
Where the completed act would not be an offence, even if the offender had criminal intent.
(i.e. an attempt to sell a hallucinatory plant, which is not illegal to sell)
R v Donnelly
Where stolen property has been returned to the owner or legal title to any such property has been acquired by any other 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.
48
Attempt - when attempt is complete
An attempt is complete after completion of the act which is sufficiently proximate to the intended offence
(Even if the defendant changes his mind or makes voluntarily withdrawal after completion of that act)
Once the act is sufficiently proximate, there is no defense that the defendant:
1. Was interrupted by someone from doing what was necessary to complete the offence
○ Interrupted by police
2. Failed to complete the full offence for to insufficient means
○ Insufficient amount of explosive to be a safe
3. Was prevented from committing the offence because it was physically impossible
○ Property intended to be stolen was removed
49
Attempt - attempt to commit an attempt
There is no such a thing as attempt to commit an attempt.
| There is an offence under Summary Offences Act 1981 to prepare to commit an offence.
50
Attempt - function of judge and jury
Judge:
Is to decide whether the defendant had left the preparation stage and was trying to effect the completion of the full offence.
If the Judge decides that the accused's action was more than mere preparation, the case goes to jury.
Jury:
If to decide whether the facts were proved beyond reasonable doubt and when the accused's action was close enough to the full offence.
The jury must also be satisfied that the accused intended to commit the offence.
51
Attempt - unable to charge with attempt
Attempt - unable to charge with attempt
1. Criminality depends on recklessness or negligence (manslaughter)
2. Attempt to commit an offence included in definition (assault)
3. The act has to be completed in order for the offense to exist (demand with menaces)
52
Attempt - filling the charges
* Offender charged with full offence but found guilty of an attempt only - can be convicted of an attempt (s.149 Criminal Procedure Act 2011)
* Offender charged with attempt but but full offence is proved - can only be convicted of an attempt (s.150 Criminal Procedure Act 2011)
53
Attempt - Penalty - Legislation
Attempt - Penalty - Legislation
Where no punishment expressly provided, section 311 C.A.1961 applies
Section 311 C.A.1961 - Attempt to commit or procure commission of offence
1. Everyone who attempts to commit any offence in respect of which no punishment for the attempt is expressly prescribed by this Act or by some other enactment is liable to imprisonment for a term not exceeding 10 years if the maximum punishment for that offence is imprisonment for life, and in any other case is liable to not more than half the maximum punishment to which he would have been liable if he had committed that offence.
54
Parties - Legislation
Section 66 C.A.1961 - Parties to offence
1. Everyone is a party to and guilty of an offence who -
a. Actually commits the offence, or
b. Does or omitts 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 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 of the commission of that offence was known to be a probable consequence of the prosecution of the common purpose.
55
Parties - Section 70 C.A.1961 - Offence committed other than offence intended
Section 70 C.A.1961 - Offence committed other than offence intended
1. Everyone who incites, counsels or procures another to be a party to an offence of which that other is afterwards guilty is a party to that offence, although it may be committed in a way different from that which was incited, counseled or suggested.
2. Everyone who incites, counsels or procures another to be a party to an offence is a party to every offence which that other commits in consequence of such inciting, counseling or procuring, and which the first mentioned person knew to be likely to be committed in consequence of thereof.
56
Parties - What must be proved
• Suspect ID
• An offence has been successfully committed
• The elements of the offence s.66(1) have been satisfied
Where there is more than one offence, the elements must apply to each offence separately
57
Parties - When participation must occur
The participation must occur before or during the commission of the offense and before the completion of the offence.
Participation/Assistance after the commission of the offence is an offence of Accessory After the Fact s.71 C.A.1961
58
Parties - Intention to help or encourage must exist (R v Pene)
R v Pene
A party must intentionally help or encourage - it's is insufficient if they were reckless as to whether the principal was assisted or encouraged.
59
Parties - Principal party
Principal party is a person who actually commits an offence.
The person satisfies actus reus and mens rea of the offence.
There may be more than one principal offender (two assault third person)
60
Parties - Secondary party / Secondary offender
People who assisted, abet, incited, counseled or procured the principal offender.
Secondary party do not themselves commit the offence.
The acts of the secondary offender must be before or contemporaneous with the acts of principal offender.
Where the act was a part of the original planning (providing means of escape, etc), then the person would deemed to be a principal party.
Where the act was done after the commission of the offense, then the person becomes accessory after the fact (not a party).
Second party does not have to be present during the commission of the offense (ie person who unlocked the door for burglar)
61
Parties - Methods to consider multiple offenders to be principal
Method 1: Each offender satisfies elements of the offence committed
Method 2: Each offender separately satisfies part of each actus reus with necessary mens rea.
When combined with actus reus of another party, this makes complete actus reus oof the offence.
(i.e. one person prepared a poison, another delivers the poison)
62
R v Renata (principal offender is not identified)
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 section 66(1)
63
Parties - To aid
To aid means to assist in the commission of the offence (physically / advice / information)
The person aiding the principal does not have to be present at the scene.
The secondary party must assist the principal in some way.
That assistance must be proved.
The principal must be aware that they are being assisted by the secondary party (ideally but not necessary)
64
Parties - Actual proof of assistance is required (Larkin v Police)
Larkin 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.
65
Parties - Examples of assistance:
* Keeping lookout for someone committing burglary
* Providing a screwdriver for someone interfering with a vehicle
* Telling someone that their neighbours are away, so that burglary can be committed
66
Parties - Aiding by omission
Person A has a legal duty and control over person B.
Person A fails to perform that duty to prevent person B from committing an offence.
Person A is liable by omission.
67
Parties - To abet
To abet means to instigate / encourage / urge another to commit an offense.
Person must be present at the scene.
Mere presence at the scene is no sufficient - thete must be some kind of support and encouragement.
(i.e. person A encourage person B to kill person C during the fight between B and C)
68
Parties - Abetting by omission (passive acquiescence)
Person must be present at the scene.
Mere at the scene and observing the commission of the office without doing anything is insufficient, unless then person has a legal duty to the victim or public or there is a special relationship between that person and principal party.
69
Parties - Legal duty
(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 NZ, under a legal duty to take reasonable precautions, because under section 156 of the C.A.1961 he is deemed to be in charge if a dangerous thing.
70
Parties - Special relationship
Where there is a special relationship and no intervention on the part of secondary party, then it might amount to approval and encouragement.
71
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 so doing, and by giving the encouragement and authority of his presence and approval to his wife's act he became an aider and abettor and thus secondary offender.
72
Parties - Incites / Counsels / Procures
(When occurs?)
(Needs to be present?)
Inciting / counseling / procuring must take place before the commission of the offense.
The person inciting / counseling / procuring does not have to be physically present at the scene.
73
Parties - To incite
To incite means to rouse, stir up, stimulate, animate, urge a person to commit an offence.
(i.e. sport fan urge another fan to assault a protester)
74
Parties - To counsel
(Meaning)
(Knowing details)
To counsel means to advise a person on how the best to commit an offence.
The counselor must know what kind of offence is to be committed, but need not be completely familiar with the details
(i.e. counselor knows a robbery is to be committed, but need not know the target).
Example:
Providing instructions on how to now a safe.
75
Parties - To procure
(Meaning)
(How can be fine,?)
To procure means to set out to see that something happens and to ensure that it happens.
The secondary party must deliberately cause the principal offender to commit an offence.
Procurement can be carry or by fraud, words, conduct such as an offer of payment.
(i.e. obtaining service of a 'hit man')
76
Parties - Common intention
(Who can be charged?)
(Going beyond what was agreed)
Where two or more form a common intention (agreement) to commit an offence, all who entered that agreement can be charged as a party to that offence.
However, if one offender goes beyond what was agreed, then the other offender (s) is not liable for that.
77
R v Betts and Ridley (no violence contemplated, but occurred)
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.
78
Parties - A question of fact (knowledge of common aim resulting in another offence)
(What the jury is to decide)
The jury can decide whether the offender knew that furthering the common aim would probably result in another offence, other than the one agreed by parties.
79
Parties - Probable consequence
(Meaning of probable consequence)
(Real risk vs remotely possible risk)
(Two qualifications to be satisfied)
Means the offender actually foresees the likelihood that the co-offender will commit another offence in the commission of the original offence.
It is sufficient if the offender knew that there was a real risk that it could happen.
However, if the offender thought the risk was only remotely possible, then mens rea element is lacking.
Two qualifications to be satisfied:
1:
Person A needs only realise that an offence of that type is probable.
There is no requirements that person A foresees the precise manner in which person B will commit the offence.
2:
There is no requirement that person A's foresight of B's offence include any appreciation of consequences of Actus Reus of the offence committed, but for which no Mens Rea is required.
80
Parties - Joint Enterprise - murder or manslaughter
A person charged as a party to murder will be guilty of murder if they:
• Intentionally helped or encouraged it, or
• Foresaw murder as a real risk in the situation arose
A person charged as a party to manslaughter will be guilty of manslaughter if they:
• Knew 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
81
```
Parties - Innocent agent
(Meaning)
(Purpose)
(Can/not be charged)
(Who is the principal offender)
```
Innocent agent is a person who is unaware of the significance of their action.
Innocent agent is just a mechanism used by the offender to commit a crime.
Innocent agent cannot be charged as a secondary party.
Offender who used an innocent agent is a principal offender.
82
Parties - Establishing involvement
| 5 points
The involvement may be established by:
1. Reconstruction of the offense committed.
2. Admission of principal that others were involved
3. Admission of secondary that they provided assistance
4. A witness info based on their observation.
5. Receiving information that others were involved in the offense.
83
Parties - Time limit
For the secondary party is the same as for the principal offender
84
Parties - Prosecution - 10 General points
1. Secondary party can be charged even if the principal offender isn't located/charged
2. Secondary party can still be convicted even if the principal cannot due to death/insanity
3. Secondary party can be convicted on uncorroborated evidence of another party
4. Secondary party cannot be convicted If the principal offender is acquitted
5. Secondary party can still be convicted even if they were incapable of committing an offence themselves (due to sex, age, etc) (i.e. counseling, inciting, etc)
6. Any party to a completed offence is considered to be a party to any attempt carried out
7. Secondary party can be convicted together, before or after the principal
8. Secondary party can be convicted of lesser offence than the principal (murder vs manslaughter)
9. Secondary party may escape liability by timely withdrawal before commission/attempt
10. There is no secondary party in aggravated robbery s.235(b) for to an element of 'being together'
85
Accessory after the fact - Legislation
Section 71 C.A.1961 - 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 tempers with or actively suppresses any evidence against him, in order to enable him to escape after arrest or to shoot arrest or conviction.
2. No married person whose spouse or civil union partner has been a party to an offence shall become an accessory after the fact to that offence by doing any act to which this section applies in order to enable the spouse or civil union partner or the spouse or civil union partner and any other person who has been a party to the offence, to escape after arrest or to avoid arrest or conviction.
86
Accessory after the fact - Penalty
Section 312 C.A.1961 - Penalty
Everyone who is an accessory after the fact to any imprisonable offence, being an offence in respect of which no express provision is made by this Act or by some other enactment for the punishment of an accessory after the fact, is liable to imprisonment for a term not exceeding 7 years if the maximum punishment for that offence is imprisonment for life, and not exceeding 5 years is such maximum punishment is imprisonment for 10 or more years, and in any other case is liable to not more than half the maximum punishment to which he would have been liable if he had committed that offence
Life = 7 years
10+ years = 5 years
Any other = 1/2 maximum penalty
87
Accessory after the fact - Elements
* Person A is a party to an offence that has been committed
* Person B knows that person A was a party to the offence at the time of receiving/comforting/assisting etc.
* Person B receives/comforts/assists person A or tempers with/actively suppresses evidence against person A
* Person B receives/comforts/assists, etc with intent to enable person A to escape after arrest or to avoid arrest/conviction
88
Accessory after the fact - Spouse/Partner limitation
```
Section 71(2)
Person cannot be charged if they are:
• Spouse/civil union partner to the offender
• Spouse/civil union partner and another party (if they work in concept) to the offender
Person can be charged if they are:
• De facto relationship with the offender
• Other family member to the offender
• Help another party but do not help some point spouse/civil union partner
```
89
Accessory after the fact - Offence must be complete
| R v Mane
Involvement after the completion of the offence - accessory after the fact
Involvement before/during commission - party to the offence or conspiracy
R v Mane
To be considered an accessory, the acts done by the person must be after the completion of the offense
90
Accessory after the fact - Knowledge
| R v Crooks
Knowing means knowing it correctly believing.
The belief must be a correct one, where the belief is wrong, a person cannot know something
At the time of the assistance, the person must know:
• An offense has been committed and
• The person they assisted was a party (principal or secondary) to that offence
If the knowledge comes after the assistance, the person is not liable.
R v Crooks
Knowledge means actual knowledge or belief in the sense of having no real doubt the the person assisted was a party to the relevant offence. Mere suspicion of their involvement in the offence is insufficient.
91
Accessory after the fact - Willful blindness
A person is considered willfully blind:
• Where the person deliberately shuts their eyes and fails to enquire (as they knew what the answer would be), or
• Where knowledge is easily at hand and the person realises the likely truth but refrain from making enquires in order not to know
R v Briggs
As with a receiving charge under section 246(1), knowledge may also be inferred from willful blindness or a deliberate abstention from making enquires that would confirm the suspected truth.
92
Accessory after the fact - Actus Reus
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Knowingly, deliberately and intentionally, for the purpose of assisting the person to evade Justice (escape after arrest / avoid arrest / avoid conviction) does any one or more of the following:
• Receives or
• Comforts or
• Assists or
• Tempers with evidence or
• Actively suppresses evidence
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93
Accessory after the fact - Mens Rea
```
To enable the offender:
• To escape after arrest or
• To avoid arrest or
• To avoid conviction
There must be an intent. Mere knowledge that the acts are likely to assist if not sufficient.
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94
Accessory after the fact - Receives / Comforts
Receiving - Harboring or providing shelter to the offender (i.e. hiding person escapee)
Comforting - Providing the offender with things like food/clothing
95
Accessory after the fact - Assisting
Covers range of acts including providing transport/look out/providing authorities with false info on the offender's whereabouts, etc. Giving advice, information, material, service, etc
96
Accessory after the fact - To evade Justice
The acts done by the accessory must have helped the offender in some way to evade the Justice.
97
Accessory after the fact - Receiving stolen goods
Receiving stolen goods is not an accessory, unless it is accompanied by an intent to assist the offender to evade Justice.
98
Accessory after the fact - Silence / Non-disclosure
Silence/non-disclosure such as failing to report an offense will not attract liability.
99
Accessory after the fact - Tempers with evidence / Actively suppresses evidence
Tempers - to alter the evidence against the offender (i.e. modifying offender's phone record)
Suppresses - to conceal or destroy the evidence against the offender (i.e. washing off blood)
100
Accessory after the fact - Attempting to be an accessory
A person can be convicted of attempting to be an accessory after the fact
101
Accessory after the fact - Indirect assistance
There is no requirements that the accessory assisted the offender directly.
Person A commits an offence.
Person B directly assists person A.
Person C directly assists person B but not person A (offender)
102
Accessory after the fact - Innocent agent
The acts of an innocent agent (employed by an accessory) to be considered the acts of an accessory.
103
Accessory after the fact - Charging an accessory (section 137 C.A.1961)
An accessory can be charged:
- whether or not any party to the principal offence is charged
- alone or jointly with any party to the principal offence.
104
Accessory after the fact - Proof of the principal offence
An accessory may insist on proof of the principal offence (despite offender's guilty plea) and to challenge that proof.
105
Accessory after the fact - Acquittal of the offender
An accessory can still be convicted if the principal offender is acquitted.
An accessory cannot be convicted if the accessory is innocent with the acquittal of the offender.
106
Misleading Justice - Perjury - Legislation
Section 108 C.A.1961 - Perjury defined
1. Perjury is an assertion as to matter of fact, opinion, belief, or knowledge made by a witness in a judicial proceeding as party of his evidence on oath, whether the evidence is given in open Court or by affidavit or otherwise, that assertion being known to the witness to be false and being intended by him to mislead the tribunal holding the proceeding.
107
Misleading Justice - Punishment for perjury
perjury = 7 years
| procurement of conviction of a person (3+ years imprisonment offence) = 14 years
108
Misleading Justice - Perjury - Elements
1. A witness making any
2. Assertion as to any matter of fact, opinion, belief, or knowledge
3. In any judicial proceeding
4. Forming part of that witness's evidence on oath
5. Known by that witness's to be false, and
6. Intended to mislead the tribunal
109
Misleading Justice - Witness
A person who gives evidence and is able to be cross-examined in a proceeding.
Includes a person who gave / giving / will give evidence.
110
Misleading Justice - assertion / opinion / matter of fact / belief
Assertion:
Something declared or stated positively
Opinion:
A statement of opinion that tends to prove or disprove a fact (not admissible unless 24 and 25 (expert) EA2006)
Matter of fact:
A particular kind of information (presented during court in the form of witness testimony and evidence)
Belief:
A feeling regarding the validity of a fact (More than suspicion and less then knowledge)
111
Misleading Justice - Opinion evidence by Lay Witness
| what opinion evidence permitted
Section 24 E.A.2006
A witness permitted to give evidence concerning apparent:
- age,
- ID,
- speed,
- physical and emotional state of people,
- condition of clothing, etc.
Section 25 E.A.2006 relates to admissibility of expert opinion evidence.
112
Misleading Justice - Judicial proceeding - AVL
Giving evidence via AVL is the same as giving evidence in court.
Giving false evidence via AVL from another country amounts perjury.
113
Misleading Justice - Ways of giving evidence
1. Personally in court or by affidavit
2. Alternative way (AVL, CCTV, DVD, screens, etc)
3. In any other way provided by this Act (E.A.2006) of any other enactment
114
Misleading Justice - Oath / Affirmation / Declaration
Oath - Declaration involving some religious belief that the thing is true and right.
Affirmation - Declaration NOT involving religious belief that the thing is true and right.
Declaration - Promise by witness under 12 to tell truth.
115
Misleading Justice - When perjury is complete
| (when / not available defence / intention)
The moment the false evidence is given with intent to mislead the tribunal.
It is not a defence to advise the tribunal of the falsity of the evidence one they given.
Intention to mislead must exist: no intention - no offence.
116
Misleading Justice - Evidence of perjury / false Oath or statement
There must be corroborating evidence of perjury.
statement (not on oath) contradicts statement (on oath) - insufficient evidence (unless supported by confession)
117
Misleading Justice - Corroboration - Legislation
Section 121 E.A.2006 - Corroboration
1. It is not necessary in the criminal proceeding for the evidence on which the prosecution relies to be corroborated, except with respect to the offence of
a. Perjury and
b. False Oath and
c. False statement of declaration and
d. Treason
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
118
Misleading Justice - Justification for Corroboration
| too easy / result
If it is too easy for prosecution to prosecute someone of perjury, it will discourage people from giving evidence.
Where the is no corroborating evidence of perjury, the judge close the case and direct acquittal.
119
Misleading Justice - Conspiring to defeat Justice - Legislation
Section 116 C.A.1961 - Conspiring to defeat Justice
Everyone is liable to imprisonment for a term not exceeding 7 years who conspires to obstruct, prevent, pervert, or defeat the course of justice.
120
Misleading Justice - Examples
* Preventing witness from giving evidence
* Wilfully going to absent as a witness
* Bribing / threatening a witness or jury
* Providing the police with false information to obstruct enquiries
* Assisting wanted person to leave the country
* Arranging a false alibi
121
Misleading Justice - Investigative Procedure
(commencement of prosecution)
(how complaints may occur)
Prosecution commences:
- upon recommendation from the court or
- upon direction from Commissioner of Police.
However the enquiries can be made without such recommendation or direction.
Complaints of perjury may occur in two ways:
1. A person complained that someone has perjured themselves
2. A judge may direct police to conduct enquiries into the truth of witness evidence
122
Misleading Justice - Points to cover during interview (perjury)
1. Whether the witness knew their assertion was false (knowledge)
2. Where they intended to mislead the tribunal governing proceeding (intention)
123
Receiving - Categories of a receiver
1. Opportunistic taking advantage of bargain
| 2. Professional receiver (criminal business)
124
Receiving - Legislation
Section 246 C.A.1961 - Recieving
1. Everyone is guilty of receiving who receives any property stolen or obtained by any other imprisonable offence, knowing that the property to have been stolen or so obtained, or being reckless as to whether or not the property to have been stolen or so obtained.
2. For the purpose of this section, property that was obtained by any act committed outside NZ that, if it had been committed in NZ, 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 of any other person, possession of or control over the property of helps in concealing or disposing of the property.
4. If:
a. Any property stolen or obtained by any other imprisonable offence had been returned to the owner or
b. Legal title to any such property has been acquired by any other person
A subsequent receiving of it is not an offence, even though the receiver may know the 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 NZ, 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.
125
Receiving - Punishment
$1,000 = 7 years
$500 - 1,000 = 1 year
Under $500 = 3 months
126
Receiving - Elements of the offence
* Act of receiving
* Any property stolen or
* Obtained by any other imprisonable offence
* Knowing at the time of the 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
127
Receiving - Elements of the ACT of receiving
| what must be proved
* STOLEN - The property must be stolen or obtained by any other imprisonable offence
* ANOTHER - The defendant must have received the property from another
* KNEW - The defendant knew the property had been stolen or so obtained or was reckless as to the possibility
128
Receiving - When the offence is complete
At the time of the receiving with the guilty knowledge.
The defendant does not have to take personal physical custody of the property.
The possession of the stolen property can be solo or joint.
129
Receiving - Possession
| 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 both knowledge and intention, knowledge in the sense of awareness by the accused that the substance is in his possession and intention to exercise possession.
Possession can be established by showing:
• Property is in custody of the receiver or
• Property is at the location of which the receiver has control
130
Receiving - Four elements of possession for receiving
| Cullen v R
The are four elements of possession for receiving:
a. Awareness these the item is where it is
b. Awareness these the item has been stolen
c. Actual or potential control of the item
d. An intention to exercise the control over the item
Where the person is unaware of the existence of the property, they cannot possess it.
131
Receiving - Control over the property (located at the premises)
Where the property is located at the premises of which the defendant has control, the prosecution is to prove the the defendant arranged for the property to be delivered there or that the defendant intentionally had control over that property.
The intent to possess the property must be proved.
132
Receiving - Assisting in disposal or concealment of stolen property
(What must be proved)
There must be proved both:
- actual assistance and
- guilty knowledge.
133
Receiving - Must be legally possible
| R v Donnelly
Where stolen property has been returned to the owner or legal title to any such property has been acquired by any other 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.
134
Receiving - Proving dishonestly (defence)
People who received the stolen property with the solo intention of returning it to the owner or the Police, commit no offence.
135
Receiving - Property
Property include any real or 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.
136
Receiving - Property received must be property stolen
| R v Lucinsky
R v Lucinsky
The property received must be the property stolen or illegally obtained (or part of thereof) and not some other items for which the illegally obtained property had been exchanged or which are in the proceeds.
Example:
A gives B stolen$20 note - receiving.
A goes to a bank and exchanges stolen $20 note, then gives B the money - no receiving.
Drug dealing money/property - money/property obtained by imprisonable offence.
137
Receiving - Conviction of thief is conclusive proof of guilt
Where the thief has been convicted, the prosecution can rely on the conviction in relation to receiving charge, but Mens Rea and Actus Reus of the receiver must be proved.
138
Receiving - Concept of title
| Definition / deception vs theft
Title is a right to claim the ownership of the property.
In case of theft, the offender gets possession but never gets a title.
In case of deception, the offender obtains possession and voidable title.
139
Receiving - Voidable title
Voidable title is still a title.
Voidable title can be avoided by the seller.
Until the title is avoided, the property can be conferred into legal title if sold to innocent buyer.
140
Receiving - Avoiding Title
One of the following must be done:
• Communicating directly with the receiver
• Taking all reasonable steps to bring it to the deceiver notice
• Report the matter to the Police
141
Receiving - Receiving goods obtained by deception (s.246(4))
| When can and can't be convicted
Receiver cannot be convicted for receiving goods obtained by deception if the title has not been avoided.
Receiver can be convicted for receiving goods obtained by deception if the title has been avoided.
Example:
1. Valueless check / innocent buyer / title voided / buyer keeps car and not liable
2. Valueless check / title voided / innocent buyer / buyer does not keep car and not liable
3. Valueless check / receiver / title voided / receiver losses car and not liable
4. Valueless check / title voided / receiver / receiver losses car and liable for receiving
142
Receiving - Knowing the property to have been stolen or so obtained
R v Kennedy (guilty knowledge)
Knowledge or recklessness can be inferred from surrounding circumstances.
Also knowledge can be inferred from wilful blindness or deliberate abstention from making enquiries these would confirm the suspected truth.
R v Kennedy
The guilty knowledge that the thing has been stolen or dishonestly obtained must exist at the time of receiving
143
Receiving - Recklessness
R v Harney (recklessness)
Acting recklessly means consciously and deliberately taking an unjustified risk.
It must be proved not only that the defendant was aware of the risk and proceeded regardless but also that it was unreasonable for him to do so.
R v Harney
Recklessness means the conscious and deliberate taking of an unjustified risk.
In NZ it involves proof that the consequences complained of could well happen, together with an intention to continue the course of conduct regardless of the risk.
144
Receiving - 10 Circumstantial evidence of guilty knowledge
1. Possession of recently stolen property
2. Nature of the property (type, value, quantity)
3. Purchase at gross undervalue
4. Secrecy in receiving property
5. Receiving of property at unusual place / unusual time / in unusual way
6. Concealment of property to avoid discovery
7. Removal of marks and features / distinguishing the property
8. Lack of original package
9. Type of person the property received from
10. Mode of payment
145
Receiving - Direct evidence of guilty knowledge (evidence of a thief)
Original thief may give evidence against the receiver only if the thief has been charged separately.
146
Receiving - Propensity evidence (can be introduced)
Propensity evidence may be relevant and be introduced against the receiver.
147
Receiving - Doctrine of recent possession
| The Doctrine / when applies / when does not apply / depends on...
Where a person found in possession of recently stolen property, in the absence of satisfactory explanation, the person deemed to be a thief or receiver (burgler or robber)
The Doctrine applies only if the person found in possession of recently stolen property.
The Doctrine does not apply to concealment or disposal.
Whether possession is recent depends on:
• Nature of the property
• Surrounding circumstances
148
Receiving - Police acting as an agent (legal impossibility)
Recovering of the stolen property by the police amounts to its restoration.
If the property recovered by police, it is legally impossible to steal it.
Surveillance observation of the stolen property doesn't amount recovery.
149
Receiving - Conviction of accessories / parties / receivers Vs principal offender
Accessories, parties and receivers may be convicted if the principal offender hasn't been proceeded / convicted.
150
Receiving - Property stolen to order
Where the property stolen to order, the receiver is liable as a party rather than the receiving.
151
Receiving - Property obtained outside NZ
The receiver is liable only if the receiving takes place in NZ.
152
Receiving - party to receiving
Thief is a party to the receiving.
153
Money Laundering - Conceal
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.
154
Money Laundering - Deal with
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 sale, purchase, gift or otherwise
b. To transfer possession of the property
c. To bring the property into New Zealand
d. To remove property from New Zealand
155
Money Laundering - interest
means:
a. A legal or equitable estate or interest in the property or
b. A right, power, or privilege in connection with the property
156
Money Laundering - charges of money laundering where there is no conviction of the other offence
person can still be charged with money laundering if the person who committed an offence hasn't been charged/convicted.
157
Money Laundering - defense to money laundering (overseas)
If an act occurred outside NZ and it is not an offence under the law of that place.
158
Money Laundering - Definition
Process of dealing with the proceeds of criminal activity in such way as to make it appear to have been legitimately acquired.
159
Money Laundering - Phases
| placement / layering / integration
Placement
Cash enters the financial system.
(Offender sells drug / gets money / deposit that proceeds into associate's bank account)
Layering
Money is involved in number of transaction.
(Associate transfers money into an account of 'shell' company which the offender is a director of)
Integration
Money mixed with lawful funds or integrated into economy.
(The money is declared / tax payed / offender pays himself a salary from that company account)
160
Money Laundering - Elements
* In respect of any property that is the proceeds of any offence
* Engages in a money laundering transaction
* Knowing or believing that all or part of the property is the proceeds of an offence
* Or bring reckless as to whether or not the property is the proceeds of an offence
161
Money Laundering - Element - In respect of any property that is the proceeds of any offence
(property / offence)
Property include:
- tangible and intangible property and
- interest in any real or personal property
- whether within or outside NZ.
Offence includes:
- an act/omission committed overseas that would be an offence if done in NZ.
162
Money Laundering - Element - Engages in a money laundering transaction
(must do...)
One must:
- conceal the property (or enable another to conceal it) and then
- deal with the property (or assists with such dealing)
Includes disposition/transferring property or bringing/removing property from NZ
163
Money Laundering - Element - Knowing or believing that all or part of the property is the proceeds of an offence
(how can be conferred)
Knowledge conferred from:
- direct evidence (admission) and/or
- circumstantial evidence.
Knowledge must exist at the time of dealing with.
164
Money Laundering - Element - Being reckless as to whether or not the property is the proceeds of an offence
Recklessness means deliberate and conscious taking of an unjustified risk.
165
Criminal Proceeds Recovery Act 2009 - Purpose
Section 3 C.P.A.2009
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. The represents the value of the person's unlawfully derived income.
166
Criminal Proceeds - Assets Forfeiture Order (AFO)
AFO is an application of the High Court based on balance of probabilities that the asset was obtained as a result of criminal activity
167
Criminal Proceeds - Profit Forfeiture Order
The high court takes PFO if satisfied on balance probability that a responder benefited from significant criminal activity and has interest in the property
168
Criminal Proceeds - Tainted property
Means property that has been acquired as a result of significant criminal activity
169
Criminal Proceeds - Qualifying instrument forfeiture offence
5+ years offence
Includes conspiracy, party, accessory if the punishment is 5 or more years imprisonment.
170
Criminal Proceeds - Significant criminal activity
* One or more offence punishable by 5 or more years imprisonment or
* Offence from which the proceeds of a value of $30,000 have been (directly or indirectly) acquired or derived
171
Criminal Proceeds - Instrument of crime
property used to commit of facilitate the commission of a qualifying instrument forfeiture offence.
172
Criminal Proceeds - Obligation to notify court of relevant property
(who is to notify / what info / what can be done)
The prosecution is to notify the court of any property that is instrument of crime
(i.e. house used to manufacture meth / vehicle used to deliver meth)
The persecutor is to provide:
• Details of the property
• Details of any person who has interest in the property
Property that is instrument of crime may need to be restraint for the duration of criminal proceedings in order to prevent disposal of the asset.
173
Criminal Proceeds - Assessment process
| what is to be determined
Prior to making an application, an assessment is to be conducted to determine:
• Value of the asset
• Equity in the asset
• Any third party interest in the asset
• Cost of action in respect of asset (via Financial Crime Group consultation)
174
Criminal Proceeds - Application affidavit info
| 5 points
* O/C details
* Offender details (id, charges, convictions)
* S/W (offence discovered, property involved)
* Admissions made
* Property (description, value, ownership)
175
Criminal Proceeds - No conviction
Where there is no conviction is entered, any restraints order will lapse.
176
Criminal Proceeds - Who can apply for restraining order
| who can apply / order is valid for...
Asset Recovery Unit (on behalf of the Commissioner)
Restraint order is valid for a year.
Can be extended (extention is also valid for 1 year)
(Restraining order, asset forfeiture order, profit order)
177
Criminal Proceeds - Investigation - Suspect Interview
| 7 points
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Consider the following:
• Suspect's legitimate income
• Suspect's illegitimate income
• Expenditure
• Assets
• Liabilities
• Acquisition of financial records
• Clarification of documentary
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