Practice Test 4

Question 1

Withdrawing from an agreement- Conspiracy ?

Answer 1

A person withdrawing from the agreement is still guilty of conspiracy as are those who become party to the agreement after it has been made.

However a person can effectively withdraw before the actual agreement is made.

Question 2

What was held in R v Sanders?

Answer 2

R v Sanders
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 3

Admissibility of evidence - Conspiracy?

Answer 3

The intention of the parties involved to actually carry out the offence is an essential element to a conspiracy charge. There must be a common aim to commit some offence and an intention that the aim is to be effected.

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 explanations made after the common purpose is carried out. Then, the explanation is evidence only against the person making it.

Question 4

Why is laying a substantive and conspiracy charge undesirable?

Answer 4

• The evidence admissible only on the conspiracy charge may have a prejudicial effect in relation to other charges.
• The judge may disallow the evidence as it will be too prejudicial to the principal charge.
• The addition of a conspiracy charge may unnecessarily complicate and prolong a trial.
• Where the charge of conspiracy is not founded on evidence or is an abuse of process, it may be quashed
• Severance may be ordered, this means that each indictment or information may be heard at separate trials.

Question 5

What must be proved for an attempt?

Answer 5

You must prove:

• The identity of the suspects.
• That they intended to commit an offence, and
• They did, or omitted to do, something to achieve that end.

Question 6

Test for proximity for attempts?

Answer 6

The following questions should be asked in determining the point at which an act of mere preparation may become an attempt:

• Has the offender done anything more than getting himself into a position from which he could embark on n actual attempt? or
• Has the offender actually actually commenced execution, that is to say, has he taken a step in the actual crime itself.

Question 7

Acts completed sufficiently proximate to intended offence is no defence?

Answer 7

Once the acts are sufficiently proximate the accused has no defence that they:

• Were prevented by some outside agent from doing something that was necessary to complete the offence, eg interruption by Police.
• Failed to complete the full offence due to ineptitude, inefficiency or insufficient means, eg insufficient explosives etc.
• Were prevented from committing the crime because an intervening event made it physically impossible, eg removal of property before intended theft.

Question 8

When are you unable to charge for an attempt?

Answer 8

• Criminality depends on recklessness or negligence eg manslaughter.
• An attempt to commit an offence is included within the definition.
• The offence is such that the act has to have been completed in order for an offence to exist at all, eg Demands with menace.

Question 9

Define s66(1), CA61?

Answer 9

S66 Parties to Offences, CA61

(1) Everyone 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
(c) Abets any person in commission of the offence, or
(d) Incites, counsels, or procures any person to commit the offence.

Question 10

Define 66(2) CA61?

Answer 10

Secondary Offenders
Those whose assist in the principal offender either before or during the commission of an offence are considered secondary offender and thus their liability generally lies within the scope of s66(1)a,b,c or d.

To be a party to an offence, the acts of the secondary offender must be before or contemporaneous with the act of the principal offender.

Where the act was part of the original planning, eg providing means of escape, then the person who committed this act would be deemed a principal party.

However a person cannot be convicted as a party for an offence that is already complete, in such a case they would be liable as an accessory.

Question 11

Give examples of assistance for parties?

Answer 11

• Keeping a lookout for someone committing a burglary.
• Providing a screwdriver for someone interfering with a car.
• Telling an associate when a neighbor is away from their home so as to commit burglary.
• Providing instructions to commit a robbery.

Question 12

What was held in the R v Crooks?

Answer 12

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.

Question 13

Knowledge must be exist at the time assistance given?

Answer 13

At the time of the assistance being given, an accessory must process the knowledge that:

• An offence has been committed,
• The person they are assisting was a party (principal or secondary) to the offence.

Where this knowledge comes about following the rendering of the assistance they are not liable as an accessory.

Question 14

What is required for Evidence of perjury, fales oath or misleading justice?

Answer 14

Section 112- no one shall be convicted of perjury, or of any offence against s110 or s111 of this Act, on the evidence of one witness only, unless the evidence of that witness is corroborated in some material particular by evidence implicating the accused.

Question 15

Elements of Fabricating evidence?

Answer 15

Everyone is liable for a term not exceeding 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.

Question 16

Ingredients of perjury?

Answer 16

The ingredients of perjury are:

• A witness making
• Assertions as to any matter of fact, opinion, belief or knowledge.
• In any judicial proceeding
• Forming part of that witness’s evidence on oath.
• Known by that witness to be false, and
• Intended to mislead the tribunal.

Question 17

Opinion evidence by Lay Witness

Answer 17

S24, Evidence Act 2006- 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.

Question 18

When is the offence of perjury complete?

Answer 18

The offence of perjury is complete at the time the false evidence is given accompanied by an intention to mislead the tribunal.

There is no defence where the witness later recants and informs the tribunal of the falsity of the earlier evidence give.

Question 19

Give examples of misleading justice, s116 and s117?

Answer 19

• Preventing a witness from tesitfying
• Willfully going absent as a witness.
• Threatening or bribing witnesses.
• Concealing the fact a crime has been committed.
• Intentionally giving Police false information to obstruct their inquiries.
• Supplying false information to probation officers.
• Assisting a wanted person to leave the country.
• Arranging a false alibi.
• Threatening or bribing jury members.

Question 20

The “art of receiving” requires what elements?

Answer 20

• There mus be property which has been stolen or has been obtained by crime.
• The accused must have received that property, which requires that the receiving must be from another.
• The accused must receive that property in the knowledge knowledge that it has been stolen or illegally obtained or being reckless as to that possibility.

Question 21

When is the act of receiving complete?

Answer 21

The act of receiving is complete as soon as the offender has, either exclusively or jointly with the thief or any other person, possession of, or control over, the property or helps in concealing or disposing of the property.

Question 22

Define the doctrine of recent possession?

Answer 22

It is the presumption that, where the defendant acquired possession willingly, the proof of possession by the defendant of property recently stolen, in the absence of satisfactory explanation, evidence to justify a belief and finding that the possessor is either the thief or receiver, or has committed some other offence associated with the theft of the property.

Question 23

Define Interest?

Answer 23

Interest
A legal or equitable estate or interest in the property, or
A right, power, or privilege in connection with the property.

Question 24

What is required to be proved for money laundering?

Answer 24

When considering the principal charge of money laundering under s243(2) proof of the following four elements is required:

• Dealing with property or assisting with such dealing.
• The source of the property being the proceeds of an offence punishable by 5 years imprisonment or more committed by another person.
• Knowledge or belief that the property was the proceeds of such an offence, or recklessness as to whether it was the proceeds of such an offence.
• An intention to conceal property.

Question 25

Define tainted property?

Answer 25

Tainted property, s5, Criminal Proceeds Recovery Act 2009:
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 derived from, more than 1 activity if at least 1 of those activities is a significant criminal activity

Question 26

Define Unlawfully benefited from criminal activity?

Answer 26

In this act unless the context otherwise requires a person has unlawfully benefited from significant criminal activity of the person has knowingly, directly or indirectly, derived a benefit from significant criminal activity. (Does not have to be involved).

Question 27

Define forfeiture order?

Answer 27

Profit forfeiture order, s55 CPA 09

1) The high court must make a profit forfeiture order if is is satisfied on the balance of probabilities that-
a) The respondent has unlawfully benefited from significant criminal activity within the relevant period of criminal activity.
b) The respondent has interests in property.

Question 28

Define what was held in Pulman v Police in regards to unlawfully benefiting from criminal activity?

Answer 28

Pulman v Commissioner of Police
The Court held that the purpose if the forfeiture regime was not only to prevent the ability of a person to actually profit from undertaking significant criminal activity but also the “chance” that they may be able to do so and also to deter significant criminal activity.

Question 29

Who may apply for restraining orders etc?

Answer 29

Only members of the Asset Recovery Units may apply for restraining orders, assets forfeiture orders and profit orders.

Question 30

What to cover in a suspect interview for money laundering?

Answer 30

When interviewing a suspect about money laundering or where proceeds recovery action is to be considered, consider the following points.

• Suspects illegitimate income.
• Suspects legitimate income.
• Expenditure.
• Assets.
• Liabilities
• Acquisition of financial records, from banks, financial companies, loan sharks, family trust documents.
• Clarification of documentary evidence locates as per above.