Case Law

Question 1

Case Law: Intent

Answer 1

R v Collister

Intent can be inferred by actions and words, said and made, before, during or after the event, the surrounding circumstances, and the nature of the act itself.

R v Taisalika

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

Question 2

Case law: Indirect Assault

Answer 2

R v Hunt

the defendant, while breaking into another man’s stables, was caught by the property owner and his servant. Hunt attempted to stab the property owner with a knife, but in the ensuing struggle he unintentionally
inflicted a superficial cut to the servant’s wrist.

He was found guilty of wounding the servant, as although the cut was “slight and not in a vital part” his intent had nevertheless been to cause serious harm
(albeit to the property owner and not to the servant).

Question 3

Case Law: Grevious Bodily Harm

Answer 3

DPP v Smith

“Bodily harm” needs no explanation and “grievous” means no more and no less
than “really serious”.

Question 4

Case Law: Psychiatric Injury

Answer 4

Owen v Residential Health Management Unit

the Court highlighted that “bodily harm” may include psychiatric injury but does not include mere emotions such as fear, distress, panic, or a hysterical or nervous condition.

Question 5

Case Law: Psychiatric Injury (2)

Answer 5

R v Donaldson

It may be that a charge under s188 can be justified where there has been relevant psychiatric injury but the victim is unaware of the assault.

An example is R v Donaldson where the defendant performed indecent acts on the victim while he was unconscious. The victim had no recollection of the
events but, once he learned of them, they had a profound psychological impact on him.

Question 6

Case Law: Non-immediate Harm

Answer 6

R v Mwai

In R v Mwai the defendant faced multiple counts in relation to two women who he infected with HIV, and several others whom he put at risk, through unprotected sex.

In affirming his conviction for “causing grievous bodily harm with reckless disregard for the safety of others”, the Court of Appeal held that section 188 is not limited to the immediate harmful consequences of the offender’s actions, such as external assault or injury from a blow of some kind.

Expert medical evidence adduced at the time, that HIV follows “a steady relentless progression” leading to AIDS and then inevitably to death, was sufficient to establish that the defendant had caused grievous bodily harm.

Question 7

Case Law: Wounding

Answer 7

R v Waters

It was held that a wound involves the breaking of the skin and the flowing of blood, either externally or internally.

Question 8

Case Law: Disfigures

Answer 8

R v Rapana and Murray

The word disfigures covers not only permanent damage but also temporary damage

Question 9

Case Law: Bodily Harm

Answer 9

R v Donovan

Bodily harm includes any hurt or injury calculated to interfere with the health or comfort of the Victim, it need not be permanent but it must be more than trifling.

Question 10

Case Law: Recklessness

Answer 10

Cameron v R

Recklessness is established if:

(a) the defendant recognised that there was a real possibility
that:

(i) his or her actions would bring about the proscribed result; and/or

(ii) that the proscribed circumstances existed; and

(b) having regard to that risk those actions were unreasonable

Question 11

Case Law: Recklessness Part 2

Answer 11

R v Tipple

The general rule of ‘recklessness’ is to be given the subjective meaning which requires that the accused had conscious appreciation of the relevant risk.

Question 12

Case Law: Aggravated Wounding

Answer 12

R v Tihi

In addition to the specific intents outlined in paragraph (a), (b) and (c), it must be shown that the offender either meant to cause the specific harm, or foresaw that the actions undertaken by him were likely to expose others to the risk of suffering it.

Question 13

Case Law: Facilitate Flight

Answer 13

R v Wati

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 14

Case Law: Stupefies

Answer 14

R v Sturm

In R v Sturm the defendant was convicted for after administering alcohol, Ecstasy and other drugs to a number of male victims, in order to dull their senses sufficiently, to enable him to sexually violate them.

The Court in this matter held that 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 15

Case Law: Rendered incapable of resistance

Answer 15

R v Crossan

The Defendant, intending to rape a Victim, presented a loaded revolver at her and threatened to shoot her unless she submitted to sexual intercourse.

It was held that a mere threat may not in itself be sufficient to constitute “violent means”, but when the person making the threat is brandishing a loaded revolver in circumstances that cause the victim to submit to his will in the belief that he will carry out his threat unless she does so, it can be said that she was rendered incapable of resistance by violent means just as effectually as if she were physically incapable.

Question 16

Case Law: Reckless discharge of a firearm

Answer 16

R v Pekepo

A reckless discharge of a firearm in the general direction of a passer-by who happens to be hit is not sufficient proof. An intention to shoot that person must be established.

Question 17

Case Law: Use in any manner whatever

Answer 17

R v Swain

To deliberately or purposely remove a sawn-off shotgun from a bag after being confronted by or called upon by a Police Constable amounts to a use of that firearm.

Police v Parker

In this matter the Court suggested to ‘use in any manner whatever’ is to contemplate a situation short of actually firing the weapon and would include presenting it.

Question 18

Case Law: Resist lawful arrest

Answer 18

Fisher v R

It is necessary in order to establish a charge under section 198A(2) for the Crown to prove that the accused knew someone was attempting to arrest or detain him because otherwise the element of mens rea of intending to resist lawful arrest or detention cannot be established.

Question 19

Case Law: Possession

Answer 19

R v Cox

It is suggested that following R v Cox where both a physical and mental
component must be proved to satisfy this element.

The physical element requires the physical custody or control over the item in question.

The mental element is a combination of both knowledge that the person possesses the item in question, and an intention to possess the item

Question 20

Case Law: Prima Facie

Answer 20

Tuli v Police

Prima facie circumstances are those which are sufficient to show or establish an intent in the absence of evidence to the contrary

Question 21

Case Law: Claim of right

Answer 21

R v Skivington

Theft is an element of robbery, and if the honest belief that a man has a claim of right is a defence to theft, then it negatives one of the elements of robbery, without proof of which the full offence is not made out.

Question 22

Case Law: Takes

Answer 22

R v Lapier

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

Question 23

Case Law: Accompanied By (Robbery element)

Answer 23

R v Maihi

It is implicit in ‘accompany’ that there must be a 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 24

Case Law: Threats of Violence

Answer 24

R v Mitchell

There may be occasions where property is handed over to a thief as a result of threats previously made but still operating on the mind of the victim at the time.

The question will be one of fact and degree in each case.

R v Broughton

The threat may be direct or veiled. It may be conveyed by words or conduct, or a combination of both.

R v Pacholko

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 of the nerves of the person threatened’

Question 25

Case Law: Violence

Answer 25

Peneha v Police

It is sufficient that the actions of the defendant forcibly interfere with personal freedom causing a powerful effect tending to cause bodily injury or discomfort.

Question 26

Case Law: Used to extort the property stolen

Answer 26

R v Newell

The defendant was confronted by a security guard in a
parking lot after stealing meat from a supermarket. He swung a knife at the guard and ran away leaving the meat behind. The Court of Appeal quashed his conviction for robbery on the basis that the violence had been used not to overcome resistance to the theft, but to facilitate his escape afterwards.

In Newell, it was held that the theft was complete when the appellant exited the store. The violence cannot be said to be to overcome resistance to the theft.

Question 27

Case Law: Extort

Answer 27

R v Macro

It was held that if the victim knows that the police are ready to step in and prevent the actual infliction of harm and is therefore unaffected by threats made by the accused, there will be no robbery.

Question 28

Case Law: Together with

Answer 28

R v Joyce

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

R v Galey

“Being together” in the context of s235(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 29

Case Law: Anything appearing to be a weapon

Answer 29

R v Bentham

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

If they were regarded as property the court could, theoretically, make an order depriving the offender of his rights to them and they could be taken into the possession of the Police.”

Question 30

Case Law: Taking Away (Abduction)

Answer 30

R v Wellard

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 31

Case Law: Taking away vs Detaining

Answer 31

R v Crossan

Taking away and detaining are separate and distinct offences. The first consists of taking the victim away; the second of detaining her. The first offence was complete when the prisoner took the woman away against her will. Then, having taken her away, he detained her against her will, and his conduct in detaining her constituted a new and different offence.

Question 32

Case Law: Detaining

Answer 32

R v Pryce

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 33

Case Law: Consent

Answer 33

R v Cox

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

Question 34

Case Law: Consent obtained by fraud or duress

Answer 34

R v Cort

A man stopped his car at several bus stops where women were waiting on their own. He falsely told them that the bus had broken down and offered to give them a lift. On two occasions women voluntarily got into his car on the basis of his deceit, and he was convicted of kidnapping.

The women in this case were unharmed and Cort denied any sinister motive, claiming that the handcuffs, Durex, string, Stanley knife and tape located in his car were there for innocent purposes.

R v Wellard

The offender gained the victim’s consent fraudulently by representing himself as a police officer, which he was not.

Question 35

Case Law: Intent in abduction

Answer 35

R v Mohi

The offence is complete once there has been a period of detention or a taking accompanied by the necessary intent, regardless of whether that intent was carried out.

R v Waaka

Intent may be formed at any time during the taking away. If a taking away commences without the intent to have intercourse, but that intent is formed during the taking away, then that is sufficient for the purposes of the section.

Question 36

Case Law: Proving kidnapping

Answer 36

R v M

The crown must prove that the accused intended to take away or detain the complainant and that he or she knew that the complainant was not consenting

Question 37

Case Law: Deprived of lawful care or charge

Answer 37

R v Chartrand

43yo man enticed a 8yo boy away to take photographs.

He argued that his intent was not to deprive the parents of possession of the child but just to take photos.

Court said that whether the defendant may have had an innocent motive, or intended to interfere with possession for a short time is beside the point.

Question 38

Case Law: Proof of age

Answer 38

R v Forrest and Forrest

The best evidence possible should be adduced by the prosecution in proof of the victims age.