Case Law

Question 1

R v Koroheke -

Genitalia

Answer 1

The genitalia comprise the reproductive organs, interior and exterior… they include the vulva [and] the labia, both interior and exterior, at the opening of the vagina.

Question 2

R v Cox -

Consent

Answer 2

Consent must be “full, voluntary, free and informed… freely and voluntarily given by a person in a position to form a rational judgment”.

Question 3

R v Gutuama -

Consent

Answer 3

Under the objective test the Crown must prove that “no reasonable person in the accused’s shoes could have thought that [the complainant] was consenting”.

Question 4

R v Forrest and Forrest -

Proving Age

Answer 4

“The best evidence possible in the circumstances should be adduced by the prosecution in proof of [the victims] age”.

Question 5

R v Court -

Indecency

Answer 5

Indecency means “conduct that right-thinking people will consider an affront to the sexual modesty of [the complainant]”.

Question 6

R v Dunn -

Indecency

Answer 6

Indecency must be judged in the light of the time, place and circumstances. It must be something more than trifling, and be sufficient to “warrant the sanction of the law”.

Question 7

R v Leeson -

Indecent Assault

Answer 7

“The definition of ‘indecent assault’… is an assault accompanied with circumstances of indecency…”

Question 8

R v Norris -

Indecent Assault - Defence

Answer 8

If a person who is charged with indecent assault is able to establish that they honestly believed that the complainant was consenting, they are entitled to be acquitted even though the grounds of his belief were unreasonable.

Question 9

R v Taisalika -

Intent (Serious Assaults)

Answer 9

The nature of the blow and the gash which it produced point strongly to the presence of the necessary intent.

Question 10

R v Collister -

Intent

Answer 10

Circumstantial evidence from which an offenders intent may be inferred can include:
The offenders actions and words before, during and after the event
The surrounding circumstances
The nature of the act itself

Question 11

DPP v SMITH -

Grievous Bodily Harm

Answer 11

‘Bodily harm’ needs no explanation and ‘grievous’ means no more and no less than ‘really serious’.

Question 12

R v Waters -

Wound

Answer 12

A wound is a ‘breaking of the skin evidenced by the flow of blood’. May be internal or external.

Question 13

R v Rapana and Murray -

Disfigures

Answer 13

Disfigure covers not only permanent damage but also temporary damage.

Question 14

R v MCARTHUR -

Injures

Answer 14

‘Bodily harm’ includes any hurt or injury calculated to interfere with the health or comfort of the victim. It need not be permanent but must be more than transitory or trifling.

Question 15

Cameron v R -

Recklessness

Answer 15

Reckless is established if:
(a) the defendant realised there was a real possibility that:
(i) his or her actions would bring about the proscribed result; and/or
(ii) the the proscribed circumstances existed; and
(b) having regard to that risk those actions were unreasonable.

Question 16

R v Tipple -

Recklessness

Answer 16

Recklessness requires that the offender know of, or have a conscious appreciation of the relevant risk, and it may be said that it requires “a deliberate decision to run the risk”.

Question 17

R v Wati -

Aggravated Wounding

Answer 17

There must be proof of the commission or attempted commission of a crime either by the person committing the assault or by the person whose arrest or flight he intends to avoid or facilitate.

Question 18

R v Tihi -

Aggravated Wounding

Answer 18

In addition to one of the specific intents outlined in paragraphs (a) - (c) it must be shown that the offender meant to cause the specified harm or foresaw that the actions undertaken by him were likely to expose others to the risk of suffering it.

Question 19

R v Sturm -

Stupefy

Answer 19

To stupefy means to cause an effect on the mind or nervous system of a person which really seriously interferes with that person’s mental or physical ability to act in any way which might hinder an intended crime.

Question 20

R v Crossan -

Incapable of Resistance

Answer 20

Incapable of resistance includes a powerlessness of the will as well as a physical incapacity. Taking away and detaining a “separate and distinct offences”.

Question 21

R v Wellard -

Kidnapping (takes away)

Answer 21

The essence of the offence of kidnapping is the “deprivation of liberty coupled with a carrying away from the place where the victim wants to be”.

Question 22

R v Pryce

Kidnapping (detains)

Answer 22

Detaining is an active concept meaning to “keep in confinement or custody”. This is to be contrasted to the passive concept of “harbouring” or mere failure to hand over.

Question 23

R v Mohi -

Kidnapping/Abduction Offence Complete

Answer 23

The offence is committed at the time of taking away, so long as there is, at that moment, the necessary intent. It has never been regarded as necessary… that the Crown should show the intent was carried out.

Question 24

R v Chartrand -

Abduction (young person)

Answer 24

“ Whether the defendant may have had an innocent motive, or intended to interfere with possession for a very short period of time is beside the point”.

Question 25

R v Cox -

Possession

Answer 25

Possession involves two… elements. The first, often called the physical element, is actual or potential physical custody or control. The second, often described as 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 position… and an intention to exercise position.

Question 26

R v Misic -

Document

Answer 26

“ Essentially a document is a thing which provides evidence or information or serves as a record”.

Question 27

AP Simester and WJ Brookbanks -

Guilty Knowledge

Answer 27

Knowing means “knowing or correctly believing”. The defendant may believe something wrongly, but cannot ‘know’ something that is false.

Question 28

Hayes v R -

Uses a Document (attempts)

Answer 28

“ An unsuccessful use of a document is as much use as a successful one. An unsuccessful use must not be equated conceptually with an attempted one. The concept of attempt relates to use not to the ultimate obtaining of a pecuniary advantage, which is not a necessary ingredient of the offence. Because the use does not have to be successful it’s may be difficult to draw a clear line between use and attempted use”.

Question 29

R v Cara -

Service

Answer 29

“Service is limited to financial or economic value, and excludes privileges or benefits”.

Question 30

Hayes v R -

Pecuniary Advantage

Answer 30

A pecuniary advantage is “anything that enhances the accused’s financial position. It is that enhancement which constitutes the element of advantage”.

Question 31

Hayes v R -

Valuable Consideration

Answer 31

A valuable consideration is “anything capable of being valuable consideration, whether of a monetary kind or any other kind; in short money or money’s worth”.

Question 32

R v Lapier -

Robbery Complete

Answer 32

Robbery is complete the instant the property is taken, even if possession by the thief is only momentary.

Question 33

R v Skivington -

Claim of Right - defence to robbery

Answer 33

Defence to theft (claim of right) is a defence to robbery.

Question 34

R v Peat -

Robbery Complete

Answer 34

The immediate return of goods by the robber does not purge the offence.

Question 35

R v Maihi -

Robbery Nexus

Answer 35

“It is implicit in ‘accompany’ that there must be a nexus (connection or link) between the act of stealing… and a threat of violence. Both must be present”. However the term “does not require that the act of stealing and the threat of violence be contemporaneous…”

Question 36

Peneha v Police -

Violence - Robbery

Answer 36

It is sufficient that “the actions of the defendant forcibly interfere with personal freedom or amount to forcible powerful or violent action or motion producing a very marked or powerful affect tending to cause bodily injury or discomfort”.

Question 37

R v Broughton -

Threat of Violence - Robbery

Answer 37

A threat of violence is “the manifestation of an intention to inflict violence unless the money or property be handed over. The threat may be direct or veiled. It may be conveyed by words or conduct, or a combination of both”.

Question 38

R v Pacholko -

Threat of Violence - Robbery

Answer 38

The actual presence or absence of fear on the part of the complainant is not the yardstick. It is the conduct of the accused which has to be assessed rather than the ‘strength or nerves of the person threatened’.

Question 39

R v Wells -

To any Person - Robbery

Answer 39

There is no requirement that the harm be inflicted on the victim of the robbery, thus infliction of harm to a person seeking to prevent the escape of the offender would come within the section.

Question 40

R v Joyce -

Together With - Robbery

Answer 40

“The crown must establish that at least two persons were physically present at the time the robbery was committed or the assault occurred”.

Question 41

R v Galey -

Together With - Robbery

Answer 41

“Being together” in the context of section 235(b) involves “two or more persons having the common intention to use their combined force, either in any event or as circumstances might require, directly in the perpetration of the crime”.

Question 42

R v Bentham -

Armed With - Offensive Weapon

Answer 42

“What is possessed must under the definition be a thing. A person’s hands or fingers are not a thing”.

Question 43

R v Morley -

Intent to Deceive - Deception

Answer 43

And intention to deceive requires that the deception is practised in order to deceive the affected party. Purposeful intent is necessary and must exist at the time of the deception.

Question 44

Simester & Brookbanks -

Debt or Liability

Answer 44

The debt or liability must be legally enforceable. This means that if the contract is void or illegal there will be no offence.

Question 45

Simester & Brookbanks -

Thing capable of being used to derive a pecuniary advantage

Answer 45

The ‘thing’ must be tangible and must be capable of being used to derive a pecuniary advantage.

Question 46

Morley v R -

Cause Loss

Answer 46

“The loss alleged by the victim must have been induced by, or caused in reliance, upon the deception. But the deception need not be the only operative factor, so long as it played a material part in occasioning the loss”.

Question 47

R v Archer -

Damage to Property

Answer 47

Property may be damaged if it suffers permanent or temporary physical harm or permanent or temporary impairment of its use or value.

Question 48

R v Wilson -

Interest in Property

Answer 48

Tenancy of a property constitutes an interest in it.

Question 49

Saxton v Police -

Imports (drug dealing)

Answer 49

To import includes “to introduce or bring in from abroad or to cause to be brought in from a foreign country”.

Question 50

R v Hancox -

Imports (drug dealing)

Answer 50

“Importation” involves active conduct. It does not cease as the aircraft or vessel enters New Zealand territorial limits. The process of importation exists from the time the goods enter New Zealand until they reach the immediate destination or have ceased to be under the control of the appropriate authorities and have become available to the consignee or addressee.

Question 51

R v Strawbridge -

Guilty Knowledge

Answer 51

It is not necessary for the crown to establish knowledge on the part of the accused. In the absence of evidence to the contrary knowledge on her part will be presumed, but if there is some evidence that the accused honestly believed on reasonable grounds that her act was innocent, then she is entitled to be acquitted unless the jury is satisfied beyond reasonable doubt that this was not so.

Question 52

Police v Emerali -

Usable Quantity (drug dealing)

Answer 52

“… the serious offence of … possessing a narcotic does not extend to some minute and useless residue of the substance”.

Question 53

R v Rua -

Produce/Manufacture (drug dealing)

Answer 53

The words “produce” or “manufacture” in S6(1)(b) broadly cover the creation of controlled drugs by some form of process which changes the original substances into a particular controlled drug.

Question 54

R v Donald -

Supply (drug dealing)

Answer 54

Supply includes the distribution of jointly owned property between its co-owners.

Question 55

R v Knox -

Intent to Supply (drug dealing)

Answer 55

“A person who is in unlawful possession of a controlled drug, which has been deposited for safekeeping, has the intent to supply that drug to another if his intention is to return the drug to the person who deposited it with him”.

Question 56

R v Wildbore -

Intent to Supply (drug dealing)

Answer 56

A “passive custodian” who relinquishes custody of a drug to meet the needs of another, has the necessary intent for supply.

Question 57

R v During -

Offer to Supply (drug dealing)

Answer 57

“[An offer is] an intimation by the person charged to another that he is ready on request to supply that other, drugs of a kind prohibited by the statute”.

Question 58

R v Brown -

Offer to Supply (drug dealing)

Answer 58

Offering to supply a controlled drug can arise in a variety of ways including where the defendant:
- offers to supply a drug that he has on hand
- offers to supply a drug that will be produced at some future date
- offers to supply a drug that he mistakenly believes he can supply
- offers to supply a drug deceitfully, knowing he will not supply that drug

Question 59

R v Donovan -

Bodily harm

Answer 59

Bodily harm includes any hurt or injury calculated to interfere with the health or comfort of the victim.

Need not be permanent, but must be more than transitory or trifling.

Question 60

R v Sturm -

Prosecution

Answer 60

Under section 191(1)(a) it is not necessary for prosecution to prove the intended crime was subsequently committed.