Flashcards in Violence offences 010 - updated July 2017 Deck (85)
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?
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 intentionally 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)?
That 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 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 Cugullere
The words "has with him..." must mean "knowingly has with him..."
R v Kelt
Having a firearm "with him" requires a very close physical link and a degree of immediate control over the weapon by the man alleged to have the firearm with him.
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.
R v Cook relating to Abduction.
To be effective, consent must be real, genuine or true consent, and may be conveyed by words or conduct or both.
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.
List the three possible intents for Kidnapping.
(a) with intent to hold 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.
What needs to be proved for a charge of Kidnapping?
- Defendant took away or detained a person
- Taking or detention was intentional or deliberate
- Taking or detention was unlawful
- Taking was done without that person's consent (or with consent induced by fraud or duress)
- Defendant knew that there was no consent to the taking or detention, and
- Defendant intended to:
(a) hold the person for ransom or to service, or
(b) cause the person to be confined or imprisoned, or
(c) cause the person to be sent or taken out of NZ
Under what section is the offence of Abduction of Young Person Under 16?
s210, CA 1961
What needs to be proved for a charge under s210(1)?
- The defendant took, enticed or detained a person under the age of 16 yrs
- The taking, enticement or detention was deliberate or intentional
- The taking, enticement or detention was from a person who had lawful care of the young person
- The defendant knew the other person had lawful care of the young person
- The taking, enticement or detention was "unlawful" and
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
What needs to be proved for a charge under s210(2)?
- The defendant "received" a person under the age of 16 yrs
- The receiving was deliberate or intentional
- The defendant knew that the young person had been unlawfully taken, enticed away or detained by another from a person who had lawful possession of the young person, and
- The defendant intended by reason of the receiving to deprive the person with lawful care of the possession of that young person
R v Forrest and Forrest
The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victim's age.
For the purposes of subsections (1) and (2) [Abduction of a Young Person Under 16], it is immaterial whether the young person consents, or is taken or goes or is received at his or her own suggestion.
For the purposes of subsections (1) and (2) [Abduction of a Young Person Under 16], is is immaterial whether the offender believes the young person to be of or over the age of 16.
s127, Crimes Act 1961
There is no presumption of law that a person is incapable of sexual connection because of his or her age.
Explain the statutory defence in s210A, CA 1961
A person who claims in good faith a right to the possession of a young person under the age of 16 yrs cannot be convicted of an offence against s209 [Kidnapping] or s210 [Abduction of a Young Person Under 16] because he or she gets possession of the young person.
Explain the main difference between migrant smuggling and people trafficking.
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.
Explain the investigative approach options for the crime-type of people trafficking.
Reactive investigation - Victim led and often initiated by an approach to Police by the victim or another person acting on behalf of the victim.
Proactive investigation - Police led. A combination of standard investigative techniques supplemented by intelligence resources to identify and locate the traffickers, gather evidence and instigate procedures against them.
Disruptive investigation - Appropriate in circumstances where the level of risk to the victim demands and immediate response, and proactive or reactive approaches are not practicable options.
What is the penalty for trafficking people by means of coercion or deception?
Imprisonment max 20 yrs or max fine of $500K or both.
Police v Parker
'Use in any manner whatever' is to contemplate a situation short of actually firing the weapon and to present a rifle too, I think, is equivalent to or means the same thing.
Simester and Brookbanks re knowledge
The defendant may believe something wrongly but cannot "know" something that is false.
R v Harney
Recklessness means the conscious and deliberate taking of an unjustified risk. In New Zealand it involves proof that the consequences complained of could well happen, together with an intention to continue the course of conduct regardless of the risk.
How is constable defined in the Police Act? Include Act and Section.
s4, Police Act 2008
Constable means a Police employee who
(a) holds the office of constable (whether appointed as a constable under the Police Act 1958 or this Act) and
(b) includes a constable who holds any level of position within the New Zealand Police
R v Rapana and Murray
The word 'disfigure' covers not only permanent damage but also temporary damage.
Define sexual connection.
s2, Crimes Act 1961
Sexual connection means
(a) connection effected by the introduction into the genitalia or anus of one person, otherwise than for genuine medical purposes, of
(i) a part of the body of another person or
(ii) an object held or manipulated by another person or
(b) connection between the mouth or tongue of one person and a part of another person's genitalia or anus or
(c) the continuation of connection of a kind described in paragraph (a) or paragraph (b)
R v Tihi
In addition to one of the specific intents outlined in paragraphs (a), (b), (c), it must be shown the offender either meant to cause the specified harm or foresaw that the actions undertaken by him were likely to expose others to risk of suffering it.
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.
Define stupefy using R v Sturm
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.
Define the phrase 'incapable of resistance' using R v Crossan.
'Incapable of resistance' includes a powerlessness of the will as well as a physical incapacity.
Define explosive. Include Act and Section.
s2, Arms Act 1983
Any substance or mixture or combination of substances which in its normal state is capable either of decomposition at such rapid rate as to result in an explosion or of producing a pyrotechnic effect.
Includes: gun powder, gelignite, detonators
Does not include: firearms, fireworks
Define airgun. Include Act and Section.
s2, Arms Act 1983
(a) Any air rifle and
(b) Any air pistol and
(c) Any weapon from which, by the use of gas or compressed air (and not by force of explosive), any shot, bullet, missile or other projectile can be discharged.
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.
Peneha v Police
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 effect tending to cause bodily injury or discomfort.
Define a 'threat of violence' using case law from the liability for Robbery.
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.
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 must, no doubt, be more than merely transitory or trifling.
Define injure from the Crimes Act.
s2, Crimes Act 1961
Means to cause actual bodily harm.
R v Galey
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.
R v Joyce
Being together require two or more people acting (physically present together) in the commission of an offence.
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.
R v Mohi
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.
R v Maihi
It is implicit in 'accompany' that there must be a nexus 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.
Define offensive weapon.
s202A(1), CA 1961
Any article made or altered for use for causing bodily injury or intended by the person having it with him for such use.
Demanding with intent to steal, etc. (Section 1)
Demanding with intent to steal, etc.
s239, Crimes Act 1961
(1) Everyone is liable to imprisonment for a term not exceeding 14 years who, 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.
Commission of an imprisonable offence with a firearm
(1) Everyone is liable to imprisonment for a term not exceeding 10 years 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 that imprisonable offence.
What three things must the prosecution prove to establish the element of 'accompanied by' in the offence of Robbery?
- a connection between the violence or threats of violence and the stealing of the property
- the defendant had an intent to steal at the time the violence or threats were used
- the violence or threats were used for the purpose of extorting the property or preventing or overcoming resistance to it being stolen
R v Lapier
Robbery is complete the instant the property is taken, even if possession by the thief is only momentary.
In the context of Robbery, who do the violence and threats need to be directed at?
Violence or threats can be directed at any person, not just the victim and any property or interest.
R v Taisalika
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.
DPP v Smith
Bodily harm needs no explanation and grievous means no more and no less than really serious.
R v Waters
A breaking of the skin would be commonly regarded as a characteristic of a wound. The breaking of the skin will be normally evidenced by a flow of blood and, in its occurrence at the site of a blow or impact, the wound will more often than not be external. But there are those cases where the bleeding which evidences the separation of tissues may be internal.
s2, Arms Act 1983
(a) Means anything from which any shot, bullet, missile or other projectile can be discharged by force of explosive, and
(i) anything that has been adapted so that it can be used to discharge a shot, bullet, missile or other projectile by force of explosive, and
(ii) anything which is not for the time being capable of discharging any shot, bullet, missile or other projectile but which, by its completion or the replacement of any component part or parts or the correction or repair of any defect or defects, would be a firearm within the meaning of paragraph (a) of this definition or subparagraph (i) of this paragraph, and
(iii) Anything (being a firearm within the meaning of paragraph (a) of this definition or subparagraph (i) of this paragraph) which is for the time being dismantled or partially dismantled, and
(iv) Any specially dangerous airgun.
R v Skivington
Larceny or theft is an ingredient of robbery, and if the honest belief that a man has a claim of right is a defence to larceny, then it negatives one of the elements in the offence of robbery, without proof of which the full offence is not made out.
R v Cox re possession.
Possession involves two elements. The first, the physical element, is actual or potential physical custody or control. The second, 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 possession; and an intention to exercise possession.
s2, CA 1961
Property includes real and personal property, and any estate or interest in any real or personal property, money, electricity, and any debt, and any thing in action, and any other right or interest.
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.
R v Cox re consent.
Consent must be full, voluntary, free and informed. Freely and voluntarily given by a person in a position to form a rational judgement.
s232, Crimes Act 1961
(1) Everyone is liable to imprisonment for a term not exceeding 14 years who
(a) while committing a burglary, has a weapon with him or her or uses anything as a weapon, or
(b) having committed burglary, has a weapon with him or her, or uses anything as a weapon, while still in the building or ship.
What was held in R v Taisalika in relation to intoxication as a defence?
Taisalika argued unsuccessfully that he was so intoxicated he could not remember the incident therefore could not have had the necessary intent. Court held that loss of memory of past events is not the same as lack of intent at the time.