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1

Knowing any
person
to be a party to an
offence


(Accessory After The Fact)

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.

Knowing means knowing or correctly believing. . . the belief must be a correct one, where the belief is wrong a person cannot know something
Simester and Brookbanks

Knowledge means actual knowledge or belief in the sense of having no real doubt that the person assisted was a party to an offence.
R v CROOK

Knowledge may also be inferred from wilful blindness or a deliberate abstention from making enquiries that would confirm the suspected truth
R v BRIGGS

PERSON
Gender neutral. Proven by judicial notice or circumstantially

PARTY 66(1) CA 61
Defines a person who
- commits the offence
- does or omits an act for the purpose of aiding any person to commit the offence
- abets any person in the commission of the offence
- incites, counsels or procures any person to commit the offence

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 insist on proof of the principal crime and to challenge the evidence of it even if the principal offender has pleaded guilty.

2

Receives,
Comforts or
Assists that
person
OR
Tampers with or
actively suppresses any evidence against him or her


(Accessory After The Fact)

RECEIVES/COMFORTS OR 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.

TAMPERS WITH/ACTIVELY SUPPRESSES EVIDENCE
Must do a deliberate act in relation to evidence against the offender for the purpose of assisting the person to evade justice. The act must be actually help the person.

3

In order to enable him or her to escape after arrest
OR
to avoid arrest or conviction

(Accessory After The Fact)

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

The act must have specifically assisted the offender after they had been arrested.
OR
All acts must be done by accused with the express intention that the person evades justice either by avoiding arrest or conviction

4

Conspires

(Conspiracy)

Mulcahy v R (1868) LR 3 HL 306, 317
“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 ….”

This conspiracy continues until the unlawful act is completed or abandoned by the people involved
(R v Sanders).

R v White (1945) GLR 109.
Where you can prove that a suspect conspired with other parties (one or more people) whose identities are unknown, that suspect can still be convicted even if the identity of the other parties is never established and remains unknown.

5

With any Person

(Conspiracy)

Gender Neutral. Proven by Judicial notice or circumstantial evidence.

6

To commit any offence

An offence is an act or omission that is punishable on conviction under any enactment

7

to do or omit, in any part of the world,

Act: To take action or do something, to bring about a particular result
Oxford Dictionaries

Omission: the action of excluding or leaving out someone or something, a failure to fulfil a moral or legal obligation
Oxford Dictionaries

8

Receives

(Receiving)

Cullen v R [2013] NZCA 413
There are four elements of possession for receiving:
(a) awareness that the item is where it is;
(b) awareness that the item has been stolen;
(c) actual or potential control of the item; and
(d) an intention to exercise that control over the item.

R v Cox [1990] 2 NZLR 275
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.

Actual possession arises where the thing in question is in a person's physical custody or control.

Potential possession arises when the person has the potential to have the thing in question in their control. For example, storing the thing in question at an associate’s house or through an agent.

9

Any property stolen

(Receiving)

PROPERTY
Includes real or personal property, and any estate or interest in any real or personal property, money, electricity, and any debt and anything in action, and any other right or interest
SEC 2 CA 61

R v Lucinsky [1935] NZLR 575 (CA).
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.

Section 219(4), Crimes Act 1961: Interpretation
For tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved.

10

Any Property obtained by any other imprisonable offence

(Receiving)

PROPERTY
Includes real or personal property, and any estate or interest in any real or personal property, money, electricity, and any debt and anything in action, and any other right or interest
SEC 2 CA 61

IMPRISONABLE OFFENCE SEC 5 CPA 2011
Imprisonable offence means, in the case of an individual, an offence punishable by imprisonment for life or by a term of imprisonment

11

knowing that at the time of receiving the property that it had been stolen or obtained by any other imprisonable offence, or

(Receiving)

Knowing means knowing or correctly believing. . . the belief must be a correct one, where the belief is wrong a person cannot know something
Simester and Brookbanks

R v Kennedy [2001] 1 NZLR 314; (2000) 18 CRNZ 501 (CA).
The guilty knowledge that the thing has been stolen or dishonestly obtained must exist at the time of receiving

12

being reckless as to whether or not the property had been stolen or so obtained.

(Receiving)

R v Harney [1987] 2 NZLR 576 (CA)
“Recklessness means the conscious and deliberate taking of an unjustified risk. In New Zealand it involves proof that the consequence complained of could well happen, together with an intention to continue the course of conduct regardless of risk

13

a witness making any

A witness is a person who gives evidence and is able to be cross-examined in a proceeding.

14

assertion as to any matter of fact, opinion, belief, or knowledge

Assertion
This is something declared or stated positively

Fact
A fact is a thing done

Opinion
in relation to a statement offered in evidence, means a statement of opinion that tends to prove or disprove a fact.
s4 of the Evidence Act 2006

Belief
subjective feeling

Knowing means knowing or correctly believing. . . the belief must be a correct one, where the belief is wrong a person cannot know something
Simester and Brookbanks

15

in any judicial proceeding

Giving evidence in a proceeding by way of audio-visual link from another location is to be considered as taking place at the hearing

16

forming part of that witness’s evidence on oath

To give evidence means to give evidence in a proceeding, (section 4, Evidence Act 2006) in one of three defined ways:
- personally in court or by affidavit or
- in an alternative way, CCTV, DVD, screens etc. or
- in any other way provided for under this Act

17

known by that witness to be false, and

Knowing means knowing or correctly believing. . . the belief must be a correct one, where the belief is wrong a person cannot know something
Simester and Brookbanks

18

intended to mislead the tribunal

INTENT
In a criminal law context there are two specific types of intention in an offence. Firstly there must be an intention to commit the act and secondly an intention to get a specific result.

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