Flashcards in Violence 010 Deck (82)
Outline the penalties for the offences under each section:
188(1) = 14yrs
188(2) = 7
189(1) = 10
189(2) = 5
191(1) = 14
191(2) = 7
List three examples of circumstantial evidence from which an offender's intent can be inferred.
- offender's actions and words before, during and after the event
- the surrounding circumstances
- the nature of the act itself
List five examples of circumstantial evidence specific to serious assault cases that may assist in proving an offender's intent.
- prior threats
- evidence of premeditation
- use of a weapon
- when any weapon used was opportunistic or purposely bought
- number of blows
- degree of force used
- body parts targeted by the offender (eg. head)
- degree of resistance or helplessness of the victim (eg. unconscious)
In regards to the two outcomes of maiming and disfiguring, what are the requirements regarding permanence for each?
Maiming: there needs to be some degree of permanence.
Disfigurement: does not need to be permanent.
Explain the doctrine of transferred malice.
It's not necessary that the person suffering harm is the intended victim. Where the defendant mistakes the identity of the person injured or harm intended for one person is accidentally inflicted on another he is still criminally responsible.
What is the two-fold test for intent in R v Tihi?
1. The defendant intended to facilitate the commission of an imprisonable offence (or one of the other intents specified in paras (a), (b) or (c) AND
2. He or she intended to cause the specified harm, or was reckless as to that risk.
Assault means the act of
Applying or attempting to apply force to the person of another, directly or indirectly, or
Threatening by any act or gesture to apply such force to the person of another, if the person making the threat has, or causes the other to believe on reasonable grounds that he or she has, present ability to effect his or her purpose
Everyone is liable to imprisonment for a term not exceeding 3 years who assaults any other person with intent
(a) to commit or facilitate the commission of any imprisonable offence
(b) to avoid detection of himself or of any other person in the commission of any imprisonable offence, or
(c) to avoid the arrest or facilitate the flight of himself or of any other person upon the commission or attempted commission of any imprisonable offence.
What are the ingredients you need to prove for an Assault?
- intention to apply or attempt to apply force
- application or attempted application of force, whether directly or indirectly, or
- threat to apply force in circumstances where the victim believes the offender will be able to carry out the threat
What is the intent that must be proved for a charge under s192(2)?
You are further required to prove the offender intended, at the time of the assault, to obstruct the constable, person coming to their aid, or anyone executing a lawful process.
What are the three "acts" that can be done to fit an offence under s198?
- discharging a firearm at a person
- delivering explosives
- setting fire to property
Unlike other serious violent offences, what do you NOT have to prove under s198?
That the victim suffered actual bodily harm.
R v Swain
To deliberately or purposely remove a sawn-off shotgun from a bag after being confronted or called upon by a police constable amounts to a use of that firearm within the meaning of s198A, Crimes Act 1961.
Fisher v R in the context of firearms offences.
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.
R v Manapouri
More than one person might have the same weapon "with him" at the one time if each had the physical link and the necessary control.
True or false? A Molotov cocktail is a restricted weapon.
s217, CA 1961
In relation to any act or omission, means done or omitted without a belief that there was express or implied consent to, or authority for, the act or omission from a person entitled to give such consent or authority.
Define 'claim of right'.
Claim of right
s2, CA 1961
In relation to any act, means a belief at the time of the act in a proprietary or possessory right in property in relation to which the offence is alleged to have been committed, although that belief may be based on ignorance or mistake of fact or of any matter of law other than the enactment against which the offence is alleged to have been committed.
List the three aggravating features in Aggravated Robbery.
(a) robs any person and, at the time of, or immediately before or immediately after, the robbery, causes grievous bodily harm to any person, or
(b) being together with any other person or persons, robs any person, or
(c) being armed with any offensive weapon or instrument, or any thing appearing to be such a weapon or instrument, robs any other person
R v Wells in relation to Aggravated Robbery.
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.
True or false? A person who uses his fingers to simulate the possession of a firearm commits aggravated robbery. Refer to case law.
False. A thing does not include a part of a person's body. (R v Bentham).
Under what sections are the offences of Blackmail and Demanding with intent to steal etc. found?
Blackmail, s237, Ca 1961
Demanding with Intent to Steal etc., s239, CA 1961
What must be proved for a charge of Blackmail?
ID of suspect
and that they threatened, expressly or by implication, to:
- make any accusation against any person (whether living or dead), or
- disclose something about any person (whether living or dead), or
- cause serious damage to property, or
- endanger the safety of any person with intent to
cause the person to whom the threat is made to act in accordance with the will of the person making the threat, and obtain any benefit or to cause loss to any other person.
Explain the statutory defence to the charge of Blackmail in s237(2).
The making of the threat is, in the circumstances, a reasonable and proper means for effecting his or her purpose.
When is the offence of Demanding with Intent to Steal etc. complete?
When a threat is made with the necessary intent.
What are the three possible intents for Abduction?
(a) with intent to marry him or her, or
(b) with intent to have sexual connection with him or her, or
(c) with intent to cause him or her to be married to or to have sexual connection with some other person.
What must be proved for a conviction under s208?
- The defendant took away or detained a person
- The taking or detention was intentional or deliberate
- The taking or detention was unlawful
- The taking or detention was without that person's consent or with consent induced by fraud or duress
- The defendant knew that there was not consent to the taking or detention, and
- The defendant intended to:
(a) marry the person taken or detained or
(b) have sexual connection with the person taken or detained or
(c) cause the person taken or detained to marry another person or to have sexual connection with another person.
When is the offence of Abduction complete?
As soon as the offender detains the victim with one of the specified intents.
R v Waaka relating to an intent formed during the taking away (Abduction).
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.