Module 10: Violence

Question 1

What is Doctrine of transferred malice?

Answer 1

If the defendant has a mens rea of a particular crime, causes the actus reus of the same crime, they are guilty even though the result may be unintended, i.e. if the victim differs from the one intended. For example the accused assaulted another man with his belt but in addition to striking the intended victim, the belt struck a woman standing nearby. Although there was no intention to hit the woman, the doctrine of transferred malice applied and accused was also convicted of assaulting the woman.

Question 2

Where is your power of arrest from?

Answer 2

Good cause to suspect that the offence has been committed and arrest is authorised under section 315 of the Crimes Act 1961 or section 39(1) of the Summary Offences Act 1981.

Question 3

What is defence of consent in relation to an assault?

Answer 3

As a general rule a person can consent to the infliction of force that does not cause bodily harm.

Question 4

What is implied consent in relation to assault?

Answer 4

People commit technical assaults every day when they touch, shake hands, kiss or hug. When they do these things, they assume the other person will consent. This is called implied consent.

Question 5

Can a person consent to harm?

Answer 5

No, In R v Lee which related to manslaughter charges resulting from an exorcism it was held that no one may consent to the infliction of death upon themselves.

A person cannot consent to being assaulted by someone who intends harm. For example, a person inflicting harm for the sake of the victim’s sexual gratification may commit an assault, even if the victim consents.

Question 6

What is the key difference between Migrant Smuggling and People Trafficking?

Answer 6

Migrant smuggling involves a person who has freely consented to be brought into New Zealand as an illegal immigrant and is not subjected to coercion or deception.

People trafficking involves a person who is brought into New Zealand by means of coercion and/or deception.

Question 7

The investigative approach options for this crime-type broadly fall into three categories
What are they?

Answer 7

Reactive investigation; Proactive investigation and Disruption investigation.

Question 8

What is the penalty for Trafficking people by means of coercion or deception?

Answer 8

20 years imprisonment or a fine not exceeding $500.000 or both.

Question 9

Do you need approval from the Attorney General to prosecute for offences under 98C and 98D Crimes Act 1961.

Answer 9

Yes but you do not need approval to arrest and appose bail.

Question 10

What is the statutory defence to a charge of blackmail under section 237(2), Crimes Act 1961)?

Answer 10

A belief by the person making the threat that they are entitled to the benefit or to cause the loss is not in itself a defence to a charge under Section 237(1) unless the threat is, in the circumstances, a reasonable and proper means for effecting his/her purpose.

Question 11

Under Section 210A Crimes Act 1961, state the statutory defence for Kidnapping
(s. 209) and Abduction (s 210)?

Answer 11

A person who claims in good faith a right to the possession of a young person under the age of 16 years cannot be convicted of an offence against this section because he or she gets possession of the young person. - Crimes Act 1961 s210A

Question 12

What was held in R v Crossan in relation to Section 191 Crimes Act 1961?

Answer 12

Incapable of resistance includes a powerlessness of the will as well as a physical incapacity.

Question 13

For a charge of Discharging a Firearm with intent to do Grievous bodily harm, the ‘firearm’ can include airgun. Explain your answer?

Answer 13

Discharging firearm or doing dangerous act with intent

(1) Every one is liable to imprisonment for a term not exceeding 14 years who, with intent to do grievous bodily harm,—
(a) Discharges any firearm, airgun, or other similar weapon at any person; or
(b) Sends or delivers to any person, or puts in any place, any explosive or injurious substance or device; or
(c) Sets fire to any property

Question 14

What was held in R v Skivington?

Answer 14

Larceny or theft is an ingredient of robbery, and if the honest belief that a man has a claim of right defence to larceny, then it negatives one of the ingredients in the offence of robbery, without proof of which the full offence cannot be made out.

Question 15

What factors elevate the offence of Robbery Section 234 Crimes Act 1961 to Aggravated Section 235 Crimes Act 1961?

Answer 15

• GBH
• Togther with
• Armed with offensive weapon

Question 16

John waits down the road as a look out. Bill runs in and uses violence to steal smokes! Although they have acted jointly in the offending why is it not an aggravated robbery by being together with?

Answer 16

Not physically present together during the robbery or assault. R v Joyce.

Question 17

Can a finger up a jersey pretending to be a gun be defined as an instrument or an item appearing to be a offensive weapon. Explain your answer referring to case law?

Answer 17

No, what is possessed must be under the definition of a thing, a person hand or fingers are not a thing. R v Bentham

Question 18

What was held in R v Crossan with regard to “taking away and detaining”?

Answer 18

Taking away and detaining are two separate and distinct offences, the first is taking the victim away and the second is detaining them.

Question 19

Define Consent as set out in R v Cox?

Answer 19

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

Question 20

List the three intents defined under Kidnapping Section, 209 (a),(b)and (c) of the Crimes Act 1961?

Answer 20

(a) With intent to hold for him or her for ransom or to service or
(b) With intent to cause him or her to be confined or imprisoned or
(c) With intent to cause him or her to be sent or taken out of New Zealand

Question 21

For a conviction under s210 (1) of the Crimes Act 1961 the Crown must prove what?

Answer 21

The defendant took, enticed or detained a person under the age of 16 years;

(a) The taking, enticement or detention was deliberate or intentional;
(b) The taking, enticement or detention was from a person who had lawful care of the young person;
(c) The defendant knew the other person had lawful care of the young person;
(d) The taking, enticement or detention was “unlawful”; and
(e) It was done with intent to deprive a parent, guardian” or other person having lawful care or charge of the young person” of possession of that young person.

Question 22

Can a young person consent to being taken away for the purpose of Section 209 -210 Crimes Act 1961?

Answer 22

They cannot consent to being taken away. Section 210(3) Crimes Act 1961

For a the purposes of subsection (1) and (2) it is immaterial whether the offender believes the young person consents, or is taken or goes or is received at his or her own suggestion.

Question 23

What is R v Joyce?

Answer 23

Crown must establish that at least two persons were physically present at the time the robbery was committed or assault occurred.

Question 24

What is R v Crossan? (In relation to by any violent means renders capable of resistance)

Answer 24

‘Incapable of resistance’ includes a powerlessness of the will as well as a physical incapacity.

Question 25

What is an accusation?

Answer 25

The word “accusation” will normally refer to an allegation that the defendant person is guilty of criminal conduct.

Question 26

Abduction - Father takes daughter 15 yrs (who consents) but mum has court ordered custody. Still criminal?

Answer 26

Yes

Question 27

Two fold test for intent. What is R v Tihi?

Answer 27

In addition to one of the specific intents outlined in paragraphs (a), (b) or (c), “it must be shown that the offender either 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 28

What is R v Harney?

Answer 28

“[Recklessness involves] foresight of dangerous consequences that could well happen, together with an intention to continue the course of conduct regardless of the risk.”

Question 29

What is R v Sturm?

Answer 29

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

Question 30

What is the doctrine of transferred malice - R v Hunt?

Answer 30

Malice against the person cut is not essential; general malice is sufficient.

Question 31

Define injurious substance and provide an example?

Answer 31

The term injurious substance or device covers a range of things capable of causing harm to a person; for example a letter containing Anthrax powder that is mailed to a political target.

Question 32

What does R v Waters say a wound is?

Answer 32

A wound is the breaking in the continuity of the skin with the flow of blood and can be internal or external.

Question 33

What circumstantial evidence do you need for proof of intent for a serious assault? 3 things

Answer 33

1 - The offenders actions and words before, during and after the event.
2 - The surrounding circumstances.
3 - The nature of the act itself.

Question 34

What does R v Kelt say about having a firearm with him?

Answer 34

Having a firearm with him requires a very close physical link and a degree of immediate control over the weapon.

Question 35

Can a charge under Section 198A Crimes Act 1961 stand up if a Police officer was trespassing at the time?

Answer 35

Not acting in the course of his lawful duty therefore negating one of the ingredients.

Question 36

Jim threatens to give John the bash unless he puts $1000 in his letterbox. What is the offence? Explain your answer.

Answer 36

Robbery - threat to extort the property stolen. Money = property.

Question 37

A child in the custody of her mother has an argument with her and rings her dad telling him to come and pick her up, he does. What offence has he committed?

Answer 37

Abduction of a young person under 16 years.

Question 38

Explain recklessness and R v Harvey?

Answer 38

Acting recklessly involves consciously and deliberately taking an unjustifiable risk.

Recklessness involves foresight of dangerous consequences that could well happen together with an intention to continue the course of conduct regardless of the risk.

Question 39

What are the intents of blackmail Section 237(1) CA 1961?

Answer 39

With intent to obtain any benefit or cause loss to any person.

Question 40

What are the 3 main investigative approaches for people trafficking and migrant smuggling?

Answer 40

Reactive Investigation - victim lead, initiaed from victim approaching police.
Proactive Investigation - Police led, locate & prosecute trafficers.
Disruptive Investigation - Appropriate where risk to victim demands an immediate response.

Question 41

GBH not limited to immediate harm including R v Mwai?

Answer 41

GBH is not limited to immediate harmful consequences of the offenders action. HIV follows a steady relentless progression to AIDS then death which is GBH.

Question 42

Explain R v Taisalika in relation to intoxication and intent?

Answer 42

“The nature of the blow and the gash which it produced on the complainant’s head would point strongly to the presence of the necessary intent.”

The loss of memory “intoxication” of past events is not the same as lack of intent at the time.

Question 43

Proving intent in serious assault cases? 8 points

Answer 43

Prior Threats
Evidence of Premeditation
The use of a weapon
Whether any weapon used was opportunistic or purposely brought
The number of blows
The degree of force used
The body parts targeted by the offender
The degree of resistance or helplessness of the victim

Question 44

What is the difference between section 188(1) and 188(2)?

Answer 44

1 = intend to cause GBH and outcome GBH
2 = intend to injure and outcome GBH

Question 45

What is R v Crossan in relation to taking away and detaining?

Answer 45

Taking away and detaining are two separate and distinct offences, the first is taking the victim away and the second is detaining them.

Question 46

What is Secondary intent?

Answer 46

R v Wentworth - Intention is normally taken to embrace both ultimate (desire) consequences and the incidental (undesired but foreseen) consequences.
eg blow up plane for insurance but kills everyone on plane.

Question 47

Define GBH, wound, maims, disfigures?

Answer 47

GBH - Grevious bodily harm means harm that is really serious.
DPP v Smith - Bodily harm need no explanation and grevious means no more or no less.

wound - R v Waters - A wound is a breaking in the continuity of the skin with the flow of blood and can be internal or external.

Maims - Will involve mutilating, crippling or disabling part of the body so the victim is deprived of the use of a limb or one of the senses.

Disfigures - To deform, deface, to mar or alter the figure or appearance of a person.

R v Rapana & Murray - Disfigurement does not necessarily involve permanent injury or damage.

Question 48

What was held in R v Lapier?

Answer 48

Robbery is complete the instant the property is taken, even if the thief has possession only momentarily.

Question 49

What are the 3 intents of kidnapping?

Answer 49

With intent to:
Hold him/her for ransom or service.
Cause him/her to be confined or imprisoned.
Cause him/her to be sent or taken out of NZ.

Question 50

What must the prosecution prove against someone who abducts a young person under Section 210(2)? 4 points

Answer 50

The defendant received a person under 16.
The receiving was deliberate or intentional.
Defendant knew the young person had been unlawfully taken, enticed away or detained by another from a person who had lawful custody.
The defendant intended by reason of the receiving to deprive the person with lawful care of the young person.

Question 51

What was held in R v Joyce?

Answer 51

Two persons were physically present together at the time of the robbery was committed or assault occurred.

Question 52

What are the ingredient of Section 188 of the Crimes Act 1961?

Answer 52

(1) - With intent to cause GBH to anyone, wounds, maims, disfigures or causes GBH to any person. (14 years)
(2) - With intent to injure anyone, or with reckless disregard for the safety of others, wounds, maims, disfigures, or causes GBH to any person. (7 years)

Question 53

What are the ingredients of Section 189 of the Crimes Act 1961?

Answer 53

(1) - With intent to cause GBH to anyone, injures any person. (10 years)
(2) - With intent to injure anyone, or with reckless disregard for the safety of others, injures any person.

Question 54

What are the ingredients of Section 191(1) of the Crimes Act 1961?

Answer 54

(1) Liable to 14 years -
a) to commit or facilitate the commission of any imprisonable offence. or
b) To avoid the detection of himself or of any other person in the commission of any imprisonable offence.
c) To avoid arrest or facilitate flight of himself or any other person upon the commission or attempted commission of any imprisonable offence.
wounds, maims, disfigures, causes GBH, stupefies, renders unconscious or by any other violent means renders incapable of resistance.

Question 55

What is Section 192 of the Crimes Act 1961?

Answer 55

Aggravated assault, same as 191 but just assault (not as serious outcome).

Question 56

What is Section 198 of the Crimes Act 1961?

Answer 56

(1) - Everyone is liable to 14 years who:
a) Discharges any firearm, air gun, or other similar weapon at any person or;
b) Sends or delivers to any person, or puts in any place, any explosive or injurious substance or device.
c) Sets fire to any property.

Question 57

What is Section 198A of the Crimes Act 1961?

Answer 57

(1) Liable for 14 years if:
uses any firearm in any manner whatever against any constable, or any traffic officer or any prison officer, acting in the course of his or her duty knowing that, or being reckless whether or not that person is a member of the Police or traffic officer or a prison officer.

(2) Liable for 10 years if:
uses any firearm in any manner whatever with intent to resist lawful arrest or detention of himself or herself or of any other person.

Question 58

What is Section 198B of the Crimes Act 1961?

Answer 58

(1) Everyone is liable to 10 years imprisonment who:
a) in committing any imprisonable offence, uses any firearm or;
b) While committing any imprisonable offence, has any firearm with him or her in circumstances that prima facie show an intention to use it in connection with the imprisonable offence.

Question 59

What are the ingredients of Blackmail Section 237(1) of the Crimes Act 1961?

Answer 59

1. Any person
2. Threatens (expressly or by implication)
3. To make an accusation against any person (living or dead) or
   to disclose something about any person or
   to cause serious damage to property or endanger the safety of another person
4. With intent to cause the person whom the threat is made to act in accordance with the will of the person making the threat
5. and to obtain any benefit or
   cause loss to any other person.

Question 60

What are the ingredients to Demanding with intent to steal Section 239 of the Crimes Act 1961?

Answer 60

(1) - liable to 14 years if:
Without claim of right, by force or with any threat, compels any person to execute, make, accept, endorse, alter, or destroy any document capable of conferring a pecuniary advantage with intent to obtain any benefit.

Question 61

What is R v Donavan?

Answer 61

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, no doubt, be more than merely transitory and trifling.

Question 62

What is R v Wait?

Answer 62

Proof of the commission of the crime by the person whose arrest or flight he intends to avoid or facilitate.

Question 63

What is R v Pekapo?

Answer 63

A reckless discharge of a firearm in the general direction of a passer by is not sufficient proof, there must be an intention to shoot.