Definitions Flashcards by Nic Cavendish

Actual Possession (Receiving s246 CA61)

Actual Possession

Actual possession arises where the thing in question is in a person’s physical custody; it is on or about their person, or immediately at hand.

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Abets

Means to instigate the crime, or to encourage the offender.

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Aids

Means to help person commit the crime, gives advice or information. Person proved circumstantially. Gender neutral.

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An imprisonable offence

An imprisonable offence

Normal meaning – any offence punishable by a term of imprisonment

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Assist after arrest (AAF 71(1) CA61)

Assist after arrest

The act must have specifically assisted the offender after they had been arrested.

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Conceal

Conceal - Section 243(1), Crimes Act 1961

In relation to property means to conceal or disguise.

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Conspires (Conspiracy s310(1) CA61)

Conspires

The conspiratorial agreement requires the operation of both the physical and mental faculties.
The actus reus (physical element) of conspiracy is the agreement between two or more people to put their common design into effect.
The mens rea (mental intent) necessary for a conspiracy is: • an intention of those involved to agree, and • an intention that the relevant course of conduct should be pursued by those party to the agreement.

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Constructive Possession (Receiving s246 CA61)

Constructive Possession

Constructive possession arises when something is not in a person’s physical custody, but they have ready access to it or can exercise control over it.

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Counsels

To intentionally instigate crime, to give advice or plan offence.

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Does or Omits Act

Does/Omits physical act (Actus reus) to facilitate the commission of a crime.

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Engages in a Money Laundering transaction

Section 243(4), Crimes Act 1961

Offender deals with the property for the purpose of concealing it. Can be for self or another.

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Escape/Arrest/Conviction (AAF 71(1) CA61)

Escape/Arrest/Conviction

All have the normal meanings. Actions taken must be intended to assist the person to evade justice.

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Guilty knowledge (money laundering)

**Guilty knowledge **

Guilty knowledge must exist at the time of laundering the property

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Incites

To rouse, stimulate, urge on, animate or stir up offender.

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Intent

A person does something intentionally if they mean to do it, they desire a specific result and act with the aim or purpose of achieving it.

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Knowing (AAF 71(1) CA61)

Knowing

The accused must have knowledge that the person that they are being an accessory to was party to an offence at the time of assisting them.

Offence (Conspiracy s310(1) CA61)

Offence

Any act or omission that is punishable on conviction under any enactment, and are demarcated into four categories.

Offence (Conspiracy s310(1) CA61)

Offence

Any act or omission that is punishable on conviction under any enactment, and are demarcated into four categories. A person charged with being an accessory after the fact is entitled to assist on proof of the principal crime and to challenge the evidence of it even if the principal offender has pleaded guilty.

Offence physically possibly or not

Completion of full offence may be physically impossible, but person can be charged with attempt

Party (AAF 71(1) CA61)

Party – Section 66(1) Crimes Act 1961

(1) Everyone is 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.

Person (Conspiracy s310(1) CA61) & (AAF 71(1) CA61)

Person

Gender neutral, proven by judicial note or circumstantial evidence.

Between 2 or more persons - person cannot conspire alone, there must be another conspiritor for an offence to be committed.

Possession (Receiving s246 CA61)

Possession

Possession may be actual or constructive.

Property (Receiving s246 CA61)

Property - Section 2, Crimes Act 1961

Includes any real or personal property. Any estate or interest in any real or personal property. Anything in action. Any other right of interest.

(Money laundering only):

Property not restricted to cash and can be all or part of a serious crime. A serious offence is punishable by 5 years or more imprisonment.

Obtain

Obtain - Section 217 Crimes Act 1961

In relation to any person means obtain or retain for him/her self or for any other person.

Receives/Comforts/Assists (AAF 71(1) CA61)

**Receives/Comforts/Assists** The accused does a deliberate act for the purpose of assisting the person to evade justice. The act done must actually help the person in some way.

Receiving (Receiving s246 CA61)

**Receiving - Section 246(3), Crimes Act 1961** The act of receiving any property stolen or obtained by another crime 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 the concealing or disposing of the property.

Recklessness (Receiving s246 CA61)

**Recklessness** Consciously and deliberately taking an unjustifiable risk.

Serious Offence

**Serious Offence - Section 243(1) , Crimes Act 1961** Offence punishable by 5 years or more imprisonment.

Stolen

**Stolen - Sec.219(1), Crime Act 1961** Dishonestly and without claim of right, taking any property with intent to deprive any owner permanently of that property or of any interest in that property.

Sufficiently proximate

Must be close to full offence. Beyond mere preparation. Issue of proximity a question of law.

Tampers with or actively suppresses any evidence (AAF 71(1) CA61)

**Tampers with or actively suppresses any evidence** Must do a deliberate act in relation to evidence against offender for purpose of assisting person evade justice. The act must actually help the person.

Value of the property (Receiving s246 CA61)

**Value of the property** The property value is essential to the sentence as per section 247, CA 1961.

In order to (AAF 71(1) CA61)

In order to There must be the required intention or purpose to assist the party, mere knowledge that the actions may assist them is insufficient.