Association Offences - MC & SA

Question 1

Conspiracy Section + Penalty

Answer 1

Section 310(1) CA 61

offence > 7 years = 7 years
any other case = same penalty

Question 2

Receiving Section + Penalty

Answer 2

Section 246(1)

Penalty section 247
Value over $1000 = 7y
Value over $500 up to $1000 = 1y
Value up to $500 = 3month

Question 3

Can A person can be charged with conspiracy in circumstances where they themselves are incapable of effectively carrying out the substantive offence?

Answer 3

Yes

Question 4

Can Spouses or civil union partners conspire together?

Answer 4

Yes

Question 5

Explain the liability of a person who agrees to commit an offence with another person but then withdraws from the agreement before the completion of the intended offence

Answer 5

A person withdrawing from the agreement is still guilty of conspiracy as are those people who become party to the agreement after it has been made. However a person can effectively withdraw before the actual agreement is made.

Question 6

What was held in the case of R v Mulcahy as it relates to conspiracy?

Answer 6

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 7

When is the offence of conspiracy complete?

Answer 7

The offence is complete on the agreement being made, accompanied by the required intent. It does not require any further progression toward its completion by those involved in the agreement.

Question 8

What five points should be covered when interviewing conspiracy suspects?

Answer 8

Interview the suspects concerned to establish:
• the existence of an agreement to commit an offence, or
• the existence of an agreement to omit or do something that would amount to an offence, and
• the intent of those involved in the agreement
• the identity of all people concerned
• whether anything was written, said or done to further the common purpose.

Question 9

Attempting to commit an offence\

Section + Defintion

Answer 9

Crimes Act 1961
72

(1) Every one who, having an intent to commit an offence, does or omits 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.

Question 10

Three elements of an attempt offence

Answer 10

Case law has established the following three conditions that must apply for an ‘attempt’ conviction to succeed:
• intent (mens rea) – to commit an offence
• act (actus reus) – that they did, or omitted to do, something to achieve that end
• proximity – that their act or ommission was sufficiently close

Question 11

R v Ring

Answer 11

In this case the offender’s intent was to steal property by putting his hand into the pocket of the victim. Unbeknown to the offender the pocket was empty. Despite this he was able to be convicted of 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 actions. The remaining elements were also satisfied.

Question 12

R v Harpur

Answer 12

“[The Court may]” have regard to the conduct viewed cumulatively up to the point when 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.”

In the previously cited R v Harpur, the defendant was involved in a series of text messages with a woman in which he described, in explicit detail, sexual acts that he wanted to perform on the woman’s 4-year-old niece. He arranged for the girl to be brought to him for that purpose

Question 13

Higgins v Police

Answer 13

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 14

Police v Jay

Answer 14

A man bought hedge clippings believing they were cannabis.

Question 15

R v Donnelly

Answer 15

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.

The court decided that despite Donnelly’s mens rea and actus reus, it was legally impossible for him to receive stolen property as those goods were no longer deemed to be stolen. His conviction was set aside. An attempt to receive such stolen goods is therefore possible in fact, but impossible in law.

Question 16

Can a person can be convicted of an attempt to commit an offence that was in fact physically impossible for them to commit. However it must be legally possible to commit the offence.

Answer 16

yes

Question 17

What are three groups of offences that do not allow for a prosecution in respect of an attempt?

Answer 17

• The criminality depends on recklessness or negligence; ie manslaughter.
• An attempt to commit an offence is included within the definition of that offence, eg assault.
• The crime is such that the act must be completed in order for the offence to exist at all, eg person cannot attempt to demand money with menaces.

Question 18

What elements must be proved to successfully prosecute someone for attempting to commit an offence?

Answer 18

In each case of attempt, you must prove the identity of the suspect and that they:
• intended to commit an offence, and
• did, or omitted to do, something to achieve that end.

Question 19

Once an offender has committed acts that are sufficiently proximate to the full offence, there are three situations that do not amount to a defence to the charge. What are those three situations?

Answer 19

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

Question 20

Parties

Section + defenition

Answer 20

Section 66, Crimes Act 1961

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

Question 21

R v Pene

Answer 21

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

Question 22

R v Renata

Answer 22

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 s66(1).

In Renata three offenders beat a person to death in the car park of a tavern. The prosecution was unable to establish which blow was the fatal one or which of the three offenders administered it. The Court held that in matters such as these, the prosecution should look to proving culpability through mens rea and actus reus highlighted in s66(1).

Question 23

Larkins v Police

Answer 23

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 24

Ashton v Police

Answer 24

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

Question 25

R v Russell

Answer 25

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 a secondary offender

The defendant was charged with the murder of his wife and two sons. Following an argument between he and his wife, the wife, in the presence of the defendant, allegedly jumped into a swimming pool with both children, drowning them all. The defendant failed to render assistance to his wife or their children.

Question 26

Party to a secondary offence

Section

Answer 26

Section 66(2), Crimes Act 1961

Question 27

R v Betts and Ridley

Answer 27

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 28

In what situations does a person become liable as a party to an offence under s66(1) of the Crimes Act 1961?

Answer 28

A person is liable as a party to an offence under s66(1) where they:
• Actually commit the offence.
• Do or omit an act for the purpose of aiding any person to commit an offence.
• Abet any person in committing an offence.
• Incite, counsel or procure any person to commit an offence.

Question 29

What is the distinction between ‘aiding and abetting’ and ‘inciting, counselling and procuring’?

Answer 29

In general terms, ‘aiding and abetting’ requires the aider or abettor to be present at the scene before or at the time of the offence being committed, whereas ‘inciting, counselling and procuring’ describe the actions taken before the offence is carried out.

Question 30

How might the involvement of parties be established?

Answer 30

The involvement of parties may be established by:
• A reconstruction of the offence committed, this indicating that more than one person was involved, or that the principal offender was in receipt of advice or assistance.
• The principal offender acknowledging or admitting that others were involved in the offence.
• A suspect or witness admitting to providing aid or assistance when interviewed.
• A witness providing you with evidence of another person’s involvement based on their observations.
• Receiving information indicating that others were involved in the offence.

Question 31

Can you be charged to AATF for a spouse or civil union partner

Answer 31

no

Question 32

R v Gibbs

Answer 32

Gibbs was convicted as an accessory after the fact to an escape made by a convicted murderer. Gibbs and the escapee were together at a hiding place before Gibbs left to uplift supplies, before returning with them for their joint use. The Court determined that the escapee was being helped by Gibbs due to Gibbs supplying provisions, despite an argument that they were for Gibbs’ own benefit.

Gibbs highlights the act or acts done by the accessory must have helped the other person in some way to evade justice.

Question 33

R v Levy

Answer 33

Levy was convicted of being an accessory after the fact to counterfeiting currency. Levy had removed equipment after it had been used by the offender in the counterfeiting process and after the offender’s arrest and the recovery of moulds used in the counterfeiting.
It was held that Levy had done a deliberate act in relation to the evidence against the offender for the purpose of assisting that offender to evade justice.

Question 34

What intent must be present in the mind of a person at the time of providing assistance to a party to an offence, so as to make that person liable as an accessory after the fact?

Answer 34

• enable the offender to escape after arrest, or

* enable that offender to avoid arrest or conviction.

Question 35

Briefly define the meaning of each of the following terms referred to in s71(1) of the Crimes Act 1961 as they relate to accessories after the fact:
− receives
− comforts
− assists
− tampers with
− actively suppresses

Answer 35

• receives: Common law meaning and refers to harbouring an offender or offering them shelter, eg hiding an escapee in a basement.
• comforts: Common law meaning and refers to providing shelter, accommodation, food, clothing or other supplies to an offender.
• assists: Common law meaning and refers to providing transport, acting as a look out, identifying purchaser for stolen property as a receiver, deliberately providing authorities with false information as to an offender’s whereabouts, giving advice, information, material or services to the offender.
• tampers with: Means to alter the evidence against the offender, eg modifying an offender’s telephone records to conceal communications that might implicate them.
• actively suppresses: This encompasses acts of concealing or destroying evidence against an offender, eg washing bloodied clothing repeatedly to remove evidence or destroying it.

Question 36

What is the principal difference between a party to an offence and an accessory after the fact?

Answer 36

The principal difference between a party to an offence and an accessory after the fact is that parties are involved in the offence before or during the commission of the offence, whereas accessories are involved after the principal offence has been committed.

Question 37

Under what circumstances can you charge someone as being an accessory after the fact when they have received goods dishonestly obtained?

Answer 37

where the receiving of those goods was done with a view to helping the offender and enabling them to evade justice. It is generally accepted that receivers purchase stolen property for their own financial gain, not to assist the principal offender. Where the contrary is proved then an accessory charge is appropriate.

Question 38

Examples of conspiring or attempting to mislead justice within sections 116 and 117 may include:

Answer 38

• preventing a witness from testifying
• wilfully going absent as a witness
• threatening or bribing witnesses
• concealing the fact an offence 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 39

investigative processes for misleading justice offences

Answer 39

• Conspiring to defeat the course of justice encompasses both civil and criminal proceedings.
• It is no defence to a charge of conspiring to defeat the course of justice that the aim of the offender was to secure a just result, or one they believed was right.
• In situations where you are unable to establish a conspiracy pursuant to section 116, the evidence may reveal a wilful attempt to obstruct, prevent, pervert or defeat the course of justice subject to section 117.
• You may only commence a prosecution for perjury (civil or criminal), where it is recommended by the courts or you are directed to do so by the Commissioner of Police. You may, however, begin inquiries into an allegation of perjury without reference to the court or Commissioner of Police.
• Complaints of perjury can arise in two ways:
− An individual may complain that someone has perjured themselves.
− A Judge may state or direct in a court recommendation that the police undertake inquiries into the truth of the evidence given by a witness.

Question 40

Perjury

Section

Answer 40

Section 108(1), Crimes Act 1961

Question 41

When may a prosecution for perjury begin?

Answer 41

You may only start a prosecution for perjury (civil or criminal), where it is recommended by the courts or you are directed to do so by the Commissioner of Police. You may, however, begin inquiries into an allegation of perjury without reference to the court or Commissioner of Police.

Question 42

What intent must you be able to prove in order to establish a charge of perjury?

Answer 42

The intent to be proved so as to establish a charge of perjury is the offender’s intention to mislead the tribunal holding the judicial proceeding.

Question 43

What are the two main points to be covered when interviewing a suspect in respect of perjury?

Answer 43

The two main points to be covered when interviewing a suspect in respect of perjury are:
• whether the suspect knew their assertion was false, and
• whether they intended to mislead the tribunal governing proceedings.

Question 44

Circumstantial evidence of guilty knowledge

Receiving

Answer 44

• possession of recently stolen property
• nature of the property, ie type, value, quantity
• purchase at a gross undervalue
• secrecy in receiving the property
• receipt of goods at an unusual place
• receipt of goods at an unusual time
• receipt of good in an unusual way
• concealment of property to avoid discovery
• removal of identifying marks or features
• steps taken to disguise property, ie removal / altering of serial numbers, painting
• lack of original packaging
• type of person goods received from
• mode of payment
• absence of receipt where receipt would usually be issued

Question 45

When is receiving complete?

Answer 45

− either exclusively or jointly with the thief or any other person possession or control of the property, or
− has assisted in the concealment or disposition of the property
− If there is guilty knowledge at that point, the offence is complete.

Question 46

Explain how possession of property can be established in a charge of receiving.

Answer 46

Possession can be established by showing that the property is:
• in the immediate physical custody of the receiver, or
• at a location, over which the receiver has control (such as their place of business or private residence).

Question 47

What is the doctrine of recent possession?

Answer 47

It is the presumption that the possession of property recently stolen is, in the absence of a satisfactory explanation, evidence to justify a belief and find that the possessor is either the thief or receiver, or has committed some other offence associated with the theft of the property, eg burglary or robbery.

Question 48

Money Laundering

Section + Ingredients

Answer 48

Section 243(2) Crimes Act 1961

• in respect of any 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

Question 49

three stages of the Money Laundering Cycle

Answer 49

Placement
- Cash enters the 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 50

What is the primary purpose of the Criminal Proceeds (Recovery) Act

Answer 50

establish a regime for the forfeiture of property that has been derived directly or indirectly from significant criminal activity; or that represents the value of a person’s unlawfully derived income.

Question 51

What is an instrument of crime?

Answer 51

includes vehicles and property used in the facilitation of the offence committed.

Question 52

Significant Criminal Activity Definition

Answer 52

Section 6, Criminal Proceeds (Recovery) Act 2009
Meaning of significant criminal activity
(1) In this Act, unless the context otherwise requires, significant criminal activity means an activity engaged in by a person that if proceeded against as a criminal offence would amount to offending–
(a) that consists of, or includes, 1 or more offences punishable by a maximum term of imprisonment of 5 years or more; or
(b) from which property, proceeds, or benefits of a value of $30,000 or more have, directly or indirectly, been acquired or derived.

Question 53

What is meant by the term ‘proceeds’ as it relates to s243, Money laundering?

Answer 53

Proceeds: in relation to an offence, means any property that is derived or realised, directly or indirectly, by any person from the commission of the offence.

Question 54

What is the definition of an ‘offence’ in respect of money laundering?

Answer 54

Offence: means an offence (or any offence described as a crime) that is punishable under New Zealand law, including any act, wherever committed, that would be an offence in New Zealand if committed in New Zealand.

Question 55

What is the purpose of the assessment process when preparing an application for a restraining order relating to an instrument of crime?

Answer 55

The assessment process is conducted to determine:
• the value of the asset
• equity in the asset
• any third party interest in the asset
• the cost of action in respect of the asset.

Question 56

What is the definition of ‘tainted property’ in relation to Criminal Proceeds (Recovery) Act?

Answer 56

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; and
(b) includes any property that has been acquired as a result of, or directly or indirectly derived from, more than 1 activity if at least 1 of those activities is a significant criminal activity