Flashcards in CIB006 - Association Deck (42)
What reasons are there for not charging with both conspiracy and the substantive offence? (P17)
Laying both a substantive charge and a related conspiracy charge is often undesirable because:
- 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, ie the jury may assume the defendant’s guilty knowledge or intent regarding the other charge and not look at the evidence, basing its assumption on the conspiracy 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 charging document may be heard at separate trials.
What are the ingredients of S113 Crimes Act - Fabricates Evidence? (P67)
Everyone is liable to imprisonment 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.
What knowledge of belief must a person hold to be guilty of money laundering? (P97)
Anyone is liable who in respect of any property that is the proceeds of a serious offence engages in a money laundering transaction:
knowing or believing that all or part of the property is the proceeds of any serious offence, OR
being reckless as to whether or not the property is the proceeds of a serious offence.
What is Larkins v Police? (P40)
While it is unnecessary that the principal should be aware that he or she is being assisted, there must be proof of actual assistance.
The mere commission of an act intended to have that effect is insufficient.
Absence of knowledge by the principal that he is being assisted removes a common foundation for a finding of actual assistance, namely that the principal was able to proceed with his enterprise with the additional confidence gained because his accomplice was on the lookout for unwanted intervention.
What are the three essential elements in the act of receiving? (P79)
The act of receiving requires the satisfaction of three elements:
1) There must be property which has been stolen or has been obtained by an imprisonable offence.
2) The accused must have “received” that property, which requires that the receiving must be from another (you cannot receive from yourself).
3) The accused must receive that property in the knowledge that it has been stolen or illegally obtained, or being reckless as to that possibility.
Define R v Sanders (P10)
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.
What three conditions must apply for an attempt conviction to succeed?
Intent to commit an offence – Mens rea
Act, did or omitted to do something to achieve that end – Actus reus
Proximity – The act or omission was sufficiently close.
A witness asks if his evidence will be admissible as he believes that opinion evidence is inadmissible. You explain to him about opinion evidence. What Section of which Act covers this and what does it state? (P69)
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.
What is the definition of a Serious Offence? (P97)
Means an offence punishable by imprisonment for a term of 5 years or more; and includes any act, wherever committed, that, if committed in New Zealand would constitute an offence punishable by imprisonment for a term of 5 years or more.
What knowledge must an accessory possess to be liable as an accessory after the fact? (P56)
Knowledge that an offence has been committed.
Knowledge that the person they are assisting was a party (principal or secondary) to that offence.
When is an act physically or factually impossible?
An act is physically or factually impossible if the act in question amounts to an offence, but the suspect is unable to commit it due to interruption, ineptitude, or any other circumstances beyond their control.
R v RING; Police v JAY; HIGGINS v Police
What is an innocent agent?
An innocent agent carries no liability because they are unaware of the significance of their actions and as such is not capable of conviction as a secondary party.
What is the mens rea for conspiracy?
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
Define “Acts must be sufficiently proximate to an offence”?
Generally, to prove an attempt the accused must have done or omitted to do some act(s) that is/are sufficiently proximate (close) to the full offence. Effectively, the accused must have started to commit the full offence and have gone beyond the phase of mere preparation – this is the “all but” rule.
What are the ingredients of accessory after the fact?
• That the person (person A), who is received, comforted or assisted by the accessory (person B) is a party (principal or secondary party) to an offence that has been committed.
• That, at the time of receiving, comforting or assisting that person (person A), the accessory (person B) knows that person (person A) was a party to the offence.
• That the accessory (person B) received, comforted or assisted that person (person A) or tampered with or actively suppressed any evidence against that person (person A).
• That, at the time of the receiving, comforting or assisting etc, the accessory’s (person B) purpose was to enable that person (person A) to escape after arrest or to avoid arrest or conviction.
Provide examples of guilty knowledge required for receiving?
• 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
• false statements as to the source of the goods
• false statements as to the date of acquisition
• nature of explanation given, eg false or inconsistent or no reasonable explanation
• false denial of knowledge, existence etc
Define R V RENATA?
Three offenders beat a male to death. It was unable to be established which one dealt the fatal blow. Where the principal offender cannot be identified it is sufficient to prove that each offender must have been either the principal or party in a manner contemplated by S66(1).
Conspiracy Interviews – What to cover?
Interview and obtain statements from witnesses covering:
• the identity of the people present at the time of the agreement.
• with whom the agreement was made.
• what offence was planned.
• any acts carried out to further the common purpose.
Interview the people concerned (suspects), and obtain statements, to establish:
• the existence of an agreement to commit an offence, OR
• the existence of an agreement to omit to do something that would amount to an offence
• the intent of those involved in the agreement
• the identity of all people concerned where possible
• whether anything was written, said or done to further the common purpose.
Define Tainted Property
Means any property that has, wholly or in part, been –
i) acquired as a result of significant criminal activity
ii) directly or indirectly derived from significant criminal activity
iii) and includes property that has been acquired as a result of or directly or indirectly derived from more than 1 criminal activity if at least one of those activities is a significant criminal activity.
Define Unlawful Benefit?
Unlawfully Criminal Recovery Act
A person has unlawfully benefited from significant criminal activity if they have knowingly, directly or indirectly benefited from a significant criminal activity (whether or not that person undertook or was involved in the significant criminal activity).
What intent is required for Perjury?
The person must give false evidence. That false evidence must be accompanied by an intention to mislead the tribunal. Without that intention there is no offence.
Definition of incite?
To rouse, stimulate, stir up, stimulate, urge a person to commit an offence.
What must you prove for a charge of parties?
Identity of the defendant
An offence has been successfully committed
Ingredients of 66(1) - Everyone is party to and guilty of an offence who:
a) actually commits the offence
b) does or omits an act with the purpose of aiding any person to commit the offence
c) abets any person in the commission of an offence
d) incites, counsels or procures any person to commit an offence
Define Ashton v Police
Legal Duty – 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.
What is the test for proximity?
These questions can be used to determine 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 an actual attempt?
Has the offender actually commenced execution; that is to say, has he taken a step in the actual offence itself?
Define Wilful Blindness
A person is considered wilfully blind in only two situations, these being:
Where the person deliberately shuts their eyes and fails to inquire; this is because they knew what the answer would be OR
In situations where the means of knowledge are easily at hand and the person realises the likely truth of the matter but refrains from inquiring in order not to know
What is Parties S66(2)?
When two people form a common intention to commit an offence, each is then a party to every offence committed by either if that offence was known to be a probable consequence of the prosecution of their common purpose.
What is the doctrine of recent possession?
It is the presumption that, where the defendant acquired possession willingly, the proof of possession by the defendant of property recently stolen is, in the absence of a 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, eg burglary or robbery
What was held in R v DONNELLY?
Where stolen property has been physically recovered by the Police, it is legally impossible to commit the crimes of receiving or attempted receiving in respect of it, although there may be evidence of conspiring to receive property dishonestly obtained.