Violence offences Flashcards
(216 cards)
1
Q
What do Section 188 subsections (1) and (2) both relate to?
A
They both relate to actions that result in wounding, maiming, disfiguring or grievous bodily harm to the victim.
The outcome is the same; the distinction between the two subsections is the offenders intent.
2
Q
What are the differences in subsections 188(1) and (2)?
A
The offenders intent
In subsection (1) the offender intends to cause GBH
In subsection (2) the offender only intends to injure
Subsection (2) also allows for an alternative mens rea element involving “reckless disregard for the safety of others”
3
Q
Definition of “Any one” or “any person”
A
The terms are interchangeable and are equivalent terms.
The assaults discussed in his module are gender neutral.
4
Q
How is the fact that a victim is a “person” accepted in court?
A
It is generally accepted by judicial notice or proved by circumstantial evidence.
5
Q
Does age need to be proved?
A
If age is not an element of the offence then the age of the victim is not relevant.
Note: offences such as “assault on a child” or “male assaults female” Require proof of age and gender respectfully.
6
Q
Is it necessary that the person suffering the harm is the intended victim in respect of Wounding with Intent (S188)
A
No it is not necessary that the person suffering the harm is the intended victim.
7
Q
Intent definition
A
Criminal law context: There must be an intention to commit the act and an intention to get a specific result.
8
Q
Result definition (Intent)
A
Aim, object or purpose
9
Q
Who has to prove intent?
A
The onus is generally on the prosecution to prove the offenders intent beyond reasonable doubt
10
Q
Can circumstantial evidence be used to prove intent?
A
Yes, as in R v Collister.
While an offenders admissions to their intent is good evidence, it is good practice to support these with circumstantial evidence. Such as:
- The offenders actions and words before, during and after the event
- The surrounding circumstances
- The nature of the act itself
11
Q
In serious assault cases, what additional circumstantial evidence can assist in proving the offenders intent?
A
- 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 (EG the head)
- the degree of resistance or helplessness of the victim (EG helplessness)
12
Q
For a charge under S188(1), does the “wounding, maiming or disfigurement” of a person need to be grievous?
A
Wounding, maiming or disfiguration need not be grievous, if in causing that harm the defendant had the intent to cause really serious harm
13
Q
Causes grievous bodily harm
A
A person causes GBH if their actions make them criminally responsible for it
14
Q
Under S188, does the harm have to be caused by a physical assault?
A
While most offences under s188 will involve a physical assault, the section does not specify the manner in which the harm may be caused; there is no reference to the use of violence, and it is therefore not necessary to prove an assault in all cases
15
Q
Grievous bodily harm definition
A
Grievous refers to the degree of the harm, rather than to the nature or how it was caused.
As long as the harm is serious, it need not involve life threatening or permanent injury.
16
Q
Is psychiatric injury included as bodily harm?
A
Bodily harm can include psychiatric injury but it does not include mere emotions such as fear, distress, panic, or a hysterical or nervous condition.
It may be necessary that the “injury” should amount to an identifiable clinical condition. And should therefore be diagnosed by appropriate specialist evidence.
A charge under S188 can be justified where there has been a psychiatric injury but the victim is unaware of the assault.
17
Q
Is S188 limited to immediate harm?
A
It is not necessary that the harm inflicted be instantaneous as all that is required is the offenders intent to cause the harm. The link between cause and effect is a physical one, not of time so if the consequence s of the offenders actions are delayed, they are still consequences.
Usually however, the effect is instant (a blow causing a wound etc)
18
Q
Wound definition
A
As per R v Waters - a wound involves the breaking of the skin and the flowing of blood, either internally or externally.
Any rupture of tissues of the body, internal or external, can amount to a wound, and whether or not it does is a matter of fact for determination in each case.
19
Q
Wounds, maims & disfigures vs GBH
A
The terms “wounds” “Maims” and “disfigures” refer to the type of injury caused, whereas the term “grievous” refers to the degree or seriousness of the injury.
E.G stabbing a person with a knife will cause a wound which may or may not be “GBH” depending on the seriousness of the wound.
20
Q
Maiming definition
A
Common law “Depriving another of the use of such of his members as may render him the less able in fighting, either to defend himself or his adversary”
In practical terms, mutilating, crippling or disabling a part of the body so as to deprive the victim of the use of a limb or one of their senses.
21
Q
Does a maiming need to be permanent?
A
To constitute a maiming, there needs to be some degree of permanence.
22
Q
Maiming or GBH
A
maiming is an archaic term as the loss of a limb or one of the senses would generally constitute Grievous Bodily Harm.
23
Q
Disfigure definition
A
Means to “deform or defence; to mar or alter the figure or appearance of a person”
results from the infliction of an external injury that detracts from the personal appearance of the victim
24
Q
Does a disfigurement need to be permanent?
A
No it need not be permanent
25
The doctrine of transferred malice definition
It is not necessary that the person suffering the harm be the intended victim. Where the defendant mistakes the identity of the person injured, or where harm intended for one person is accidentally inflicted on another, he is still criminally responsible, under the doctrine of Transferred Malice.
26
Injury vs grievous bodily harm (Determination of charge)
Whether the actual bodily harm suffered by the victim is an injury or one of the more serious outcomes provided for in s188(1) is a matter of fact for determination in each case.
Where it is at the lower end of the scale of seriousness, it may amount to an injury.
Where it is on the higher end of the scale it may amount to wounding, maiming depending on the nature or to grievous bodily harm depending on its seriousness.
27
Injure definition
The definition for injury is defined in S2 of the Crimes Act 1961
To injure means to cause actual bodily injury
28
Actual bodily harm definition
Actual bodily harm may be internal or external, and it need not be permanent or dangerous.
29
Can actual bodily harm include psychiatric injury?
Yes, if medical evidence confirms an identifiable clinical condition.
Does not include mere emotions, such as fear, distress or panic.
30
Is recklessness an element in S188(2)
Yes, it includes the offence of wounding, maiming etc "with reckless disregard for the safety of others"
31
Recklessness definition
Acting recklessly involves consciously and deliberately taking an unjustifiable risk.
32
What are two examples of recklessness? (Social utility)
An example of "no social utility" - a game of Russian roulette.
An example of "high social utility" - a surgeon undertaking a risky but potentially life saving injury
33
What are the injury requirements for S189(1) and (2)
If there is an intent to cause grievous bodily harm, it is immaterial whether grievous bodily harm was done, so long as an injury, actual bodily harm in some fashion was inflicted.
34
How do offences under S189(1)&(2) differ from S188(1)&(2)?
The offences under S189 only differ in the level of injury that is actually inflicted. The mens rea required by the two sections is identical.
S188 requires the outcome to be wounding maiming etc where S189 requires the outcome to be an injury.
35
Aggravate definition (S191)
Means to make it worse or more serious.
In the context of S191 the offending is aggravated by the fact that the offender caused the harm to the victim in the process of committing some imprisonable offence.
36
What specific intents do subsections 191(1) and (2) both require?
- Intent to commit or facilitate the commission of any imprisonable offence
- Intent to avoid the detection of himself or of any other person in the commission of any imprisonable offence
- Intent 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.
37
What is the distinction between subsections 191(1) and (2)?
The distinction is the outcome.
S191(1) the outcome is wounding, maiming or one of the other specified forms of harm.
S191(2) the outcome is an injury.
38
What would be the appropriate charge if the offender had a specified intent but the victim suffered no actual physical harm?
Instead of S191 you would charge under S192 Aggravated assault.
39
What is the "Two fold test" for intent in relation to S191 (Aggravated wounding)?
Under R v Tihi.
Must satisfy:
1. The defendant intended to facilitate the commission of an imprisonable offence (or one of the other intents)
2. He or she intended to cause the specified harm, or was reckless as to that risk
40
Does S191 (aggravated wounding) have to be intentional?
It can either be intentional or recklessness.
41
"Facilitate the commission of any offence" - Facilitate definition
means to make possible, or to make easy or easier.
42
Under S191(1)(a) where a defendant intentionally or recklessly causes the specified harm to commit an offence - do you need to commit the offence?
Provided he has the necessary intent at the time he causes the harm, it is immaterial whether he actually commits the intended offence or not.
43
Imprisonable offence definition
Any offence which is punishable by imprisonment.
44
"Avoid detection" under S191(1)(b) - Detection definition
offences under S191(1)(b) arise during the commission of an imprisonable offence, where the offender causes the specified harm to prevent himself or another person from being caught in the act.
45
Provide an example of S191(1)(b) (Avoiding detection)
A "look out" knocks a security guard unconscious to prevent him from walking in on a burglary in progress.
46
"Facilitate flight" Under S191(1)(c) definition
Offences under S191(1)(c) arise after an imprisonable offence has been committed or attempted. The specified harm is caused to enable the offender or offenders to more easily make their escape or to prevent their capture.
47
What must the prosecution prove in relation to S191(1)(c) in "facilitating the flight"
They must prove that an imprisonable offence was actually committed or attempted, before a person can be convicted of aggravated wounding while escaping after it.
48
Stupify definition
Means 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.
49
What else can "Stupefy" include?
It not only describes a situation where they are rendered senseless or unconscious but can also include circumstances where the administration of drugs has led to dis-inhibition and stimulated uncharacteristic behaviour.
50
Renders unconscious definition
To render means to "Cause to be" or "cause to become"
The render someone unconscious, the offenders actions must cause the victim to lose consciousness.
51
How can rendering unconscious be achieved?
This section does not limit how this may be achieved. It can include knocking a person unconscious with a blow to the head, strangling them or administering a noxious substance.
52
"Violent means" definition
includes the application of force that physically incapacitates a person, such as tying the victims hands and feet or inflicting debilitating injuries.
53
Is ":Violent means" limited?
It is not limited tho physical violence and may include threats of violence, depending on the circumstances.
54
Rendered incapable of resistance definition
A mere threat may not in itself be sufficient to constitute "violent means" that renders a person incapable of resistance. However, if he is brandishing a firearm, for instance, then it may be enough to cause the victim to submit to his will in the belief the threat will be carried out.
This can be considered as being rendered incapable of resistance by violent means just as effectually as if she were physically incapable.
55
What do you have to prove for Aggravated injury?
You have to prove one of the specified intents under S191(2) and prove that the offender intended to injure or had reckless disregard for the safety of others.
Injures takes on the definition from injuring with intent.
56
For an offence under S192(1) (Aggravated Assault) what must the offender have done?
The offender must assault the victim with intent
57
What must you prove for a conviction of Aggravated Assault (S192(1)) ?
You must prove all the elements of assault. Which are the:
- Intention to apply or attempt to apply force to another
- Application or attempted application of force, whether directly or indirectly or
- Threaten to apply force in circumstances where the victim believes the offender will be able to carry out the threat
58
S192(1) Crimes Act - Aggravated Assault - What further element of intent do you have to prove?
You are required to prove that the offender intended, at the time of the assault, to commit an imprisonable offence or help commit an imprisonable offence, or avoid detection or arrest or facilitate their flight or another flight after committing an imprisonable offence.
59
What must you prove for a charge against S192(2) Crimes Act (Aggravated Assault)?
- You will need to prove the elements of assault
- 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 purpose
60
What are the three optional forms of mens rea in regards to Section 198 Crimes Act - Discharging firearm with intent?
- Intent to do GBH
- Intent to injure
- reckless disregard for the safety of others
61
What are the three acts reps acts in regards to S198 Crimes Act - Discharging firearm/doing dangerous act with intent?
- Discharging a firearm at a person
- Delivering explosives
- Setting fire to property
62
What does S198 Crimes Act - Discharging firearm / doing dangerous act with intent - create criminal liability based on?
It is based on the intentions and actions of the offender, rather than on the outcome or consequences of those actions.
Therefore, it is not necessary to prove the victim suffered actual bodily harm. What is relevant is that the offender did one of the specified acts, with one of the specified intents.
63
Where bodily harm results from a specified offence under S198 Crimes Act (Discharging firearm / doing reckless act with intent) what is the most appropriate offence?
The appropriate charge would be one of wounding or injuring with intent under Section 188 or 189 of the Crimes Act 1961 or murder or manslaughter, depending on the outcome
64
What are the similarities and differences between S198(1) and S198(2) Crimes Act 1961 (Discharging firearm / doing dangerous act with intent)?
Similarities : The actus reus - discharging a firearm at a per son, delivering explosives and setting fire to property.
Differences : The offenders intent. In S198(1) the offenders intent is to cause GBH where in S198(2) the offenders intent is to cause injury or acts with reckless disregard for their safety.
65
Under S198(1)(a) is it sufficient that a person discharge a weapon in the general direction of a person who happened to be hit?
It is not sufficient for the prosecution to show a reckless discharge of a weapon in the general direction of the person who happened to be hit. There must be an intention on the part of the defendant to shoot THAT person
66
Discharge (Firearm) definition
To "Discharge" means "to fire or shoot"
67
Firearm definition
Firearm means anything from which any shot, bullet, missile or other projectile can be discharged by force of explosives and includes
Anything that can be adapted so as to do the above
Anything that can be fixed (by completion or replacement of components) so as to do the above
Anything that is a firearm as per this definition but has been temporarily dismantled or partially dismantled and
Any specially dangerous airgun
68
"Sends" or "delivers" definition
They take their ordinary meanings and may include situations where the victim receives a dangerous thing by mail or courier, such as in the case of a 'letter bomb'
69
Explosive definition
As defined by S2 of the Arms Act 1983
(a) Means any substance or mixture or combination of substances which in its normal state is capable either of decomposition at such a rapid rate as to result in an explosion or of producing a pyrotechnic effect and
(b) without limiting paragraph (a) includes gun powder, nitroglycerine, dynamite, guncotton, blasting powder, fulminate of mercury or of other metals, coloured flares, fog signals, fuses, rockets, percussion caps, detonators, cartridges and ammunition of all descriptions; and
(c) without limiting paragraph (a) or (b) includes any device, contrivance, or article, which uses any substance or mixture or combination of substances to which paragraph (a) or paragraph (b) applies as an integral part of it for the purposes of producing an explosion or ballistic or pyrotechnic effect; but does not include a firearm; and
(d) does not include any firework.
70
Injurious substance definition?
Injurious substance or device covers a range of things capable of causing harm to a person; for example, a letter containing Anthrax powder.
Boiling water has been held to be a 'destructive' substance in previous court decisions.
71
When is an offence under S198(1) Crimes Act 1961 (Discharging firearm or doing dangerous act with intent) complete?
Offences under S198(1)(a) require the actual discharge of a firearm at a person.
Under S198(2) it is not necessary for an explosion to occur; the offence is complete when an explosive or an injurious substance or device is sent, delivered, or put in place. However it must have the CAPACITY to explode or cause injury.
72
What does fire damage include?
Fire damage will often involve burning or charring, it is not necessary that the property be set alight. Melting, blistering of paint or significant smoke damage may be sufficient to prove the offence.
73
Property definition
Property is defined in S2 Crimes Act 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.
74
Does "setting fire to property" include intangible items?
No, this offence will only apply to tangible items although the statutory definition is very broad and covers intangible things.
75
"Uses in any manner whatever" in relation to S198A Crimes Act 1961 (Discharging firearm against law enforcement officer) Definition
The primary meaning of 'use' in relation to a firearm, is to fire it. However, the words 'in any manner whatever' widen the definition to include a range of acts that stop short of actually shooting at an officer.
It is sufficient if the defendant has handled or manipulated the firearm so as to convey an implied threat of its further use against the police officer. It is not necessary that the firearm was presented at the officer or that it was discharged.
Could include using it like a club
76
Constable definition
Policing Act 2008 S4 interpretation
Constable means a Police employee who -
(a) holds the office of Constable (whether appointed as a Constable under the policing act 1958 or this act) and
(b) includes a constable who holds any level of position within the New Zealand Police
77
"acting in the course of his / her duty" under S198A Crimes Act 1961
Police duties arise under both statute and common law and in general terms they include protecting life and property, preventing and detecting crime, apprehending offenders and keeping the peace.
This term includes every lawful act a constable does while on duty and may include acts done where the circumstances create professional obligation for a constable to exercise policing duties.
78
If an officer acts unlawfully are they covered under "acting in the course of his / her duty" if they were on duty at the time?
If an officer is acting unlawfully, for example using excessive force during an arrest, interfering with a persons liberty without justification, or trespassing on private property without authority, cannot be said to be "acting in the course of his or her duty"
79
Knowing definition relation to S198A Crimes Act 1961 being using firearm against a law enforcement officer
The defendant must KNOW the victim is a police officer and KNOW that the officer is acting in the course of his / her duty or be reckless as to those facts.
80
Can they still be charged under S198A Crimes Act 1961 if the prosecution cannot prove they knew the victim was an officer acting in the course of his / her duty or was reckless to this fact?
No, if it cannot be proved that they had knowledge or were reckless to the fact that they were an officer so acting then a charge should be considered under one of the other related provisions.
81
In respect of S198A(2) Crimes Act 1961 (Using a firearm against a law enforcement officer) what else must be proved?
It must be proved that the defendant knew an attempt was being made to arrest o r detain him or her, or the person he or she was assisting.
82
"Uses any firearm" differences in Section 198B Crimes act 1961 differences from Section 198A Crimes Act 1961?
Unlike Section 198A, the words 'uses any firearm' are not accompanied by the phrase 'in any manner whatever' and may therefore have a narrower meaning.
83
"uses any firearm" - what does this include?
firing or presenting a firearm, or displaying it in a menacing manner, but may not extend to the use of a firearm as a club.
84
Section 198B Crimes Act 1961 - "Has with him" definition
The offender must knowingly have the firearm with them - mere possession is insufficient.
85
Section 198B Crimes Act 1961 - what must there be evidence of regarding possession?
There must be evidence that the defendant not only had possession, in the sense that he / she knowingly had custody or control of the firearm, but also that it was at the time available, and at hand for him or her to use while committing the imprisonable offence.
86
Is mere possession sufficient under S198B Crimes Act 1961?
No, there must be accompanying circumstances showing prima facie intention to use the firearm in the commission of the imprisonable offence.
87
Prima Facie definition
"At first appearance"
88
Pistol definition
Section 2 Arms Act 1983
Any firearm that is designed or adapted to be held and fired with one hand; and includes any firearm that is less than 762mm in length.
89
What features must a military style semi automatic firearm have under section(2)(a) Arms Act 1983?
(a)
1 or more of the following:
- a folding / telescopic butt
- A magazine designed to hold 0.22 inch rimfire cartridges that is capable of holding more than 15 cartridges OR is detachable and by its appearance indicates that it is capable of holding more than 15 cartridges.
- a magazine (other than one designed to hold 0.222 inch rimfire cartridges) that is capable of holding more than 7 cartridges OR is detachable and by its appearance indicates it is capable of holding more than 10 cartridges.
- bayonet lugs
- a flash supressor
- a component of a kind defined or described under s74A as a pistol grip for the purposes of this definition
90
What other provisions under S2 Arms Act 1983 determine if a firearm is a military style semi automatic firearm?
(b) a semi auto of a make and model declared to be a military style semi auto
(c) a semi auto firearm of a description declared by an order under s 74A to be a MSSA
(d) A Semi-Automatic firearm that has a feature of a kind defined or described in an order under S74A as a feature of a MSSA for the purpose of this act.
91
Restricted weapon definition
Any weapon, whether a firearm or not, declared by the Governor General, by order in council made under section 4 of this act, to be a restricted weapon.
92
What is included in the restricted weapon schedule?
- Anti tank projectors and ammunition
- grenade discharges, launders and grenades containing explosives.
- incendiary grenades incl. Molotov cocktails and consisting of a container/s with a flammable liquid and a means of ignition of the inflammable substance or mixture, whether a wick, an explosive, other device, a fuse or a chemical
- machine carbines or guns, submachine carbines or guns and machine pistols of any kind, incl. those operated by gas or compressed air and incl all other firearm capable of full automatic fire.
- Mines of an explosive nature
- Mortars of military kinds
- Rocket launchers and ammunition
- Every weapon and device designed for the purpose of discharging any lachrymatory, deleterious, or toxic gas, smoke or other stupefying or overpowering thing capable of rendering any person wholly or partially incapable of resistance.
- Any gas, substance, material or thing specifically intended or adapted for use in conjunction with any firearm, weapon or device.
93
Specially dangerous airgun definition
Any air gun declared by the Governor-General, by order in council made under section 4 of this act, is a specifically dangerous airgun.
94
Specified precharged pneumatic air rifles definition
Means pre-charged pneumatic air rifles that are not for use in airlift or paintball sports.
95
Occupier or driver deemed to be in possession (firearm)
For the purposes of S66 Arms Act 1983, every person in occupation of any land or building or the driver of any vehicle on which any firearm, airgun, pistol, imitation firearm, restricted weapon, or explosive is found shall, though not to the exclusion of the liability of any other person, be deemed to be in possession of that firearm, airgun, pistol, imitation firearm, restricted weapon, or explosive, unless he proves that it was not his property and that it was in the possession of some other person.
96
Dishonestly definition
In relation to an 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 a consent or authority.
97
Dishonestly - what is the belief required on the part of the accused as a defence to theft?
- that the act or omission was, expressly or impliedly, consented to by a person entitled to give consent or
- that the act or omission was authorised by a person entitled to authorise it.
98
Is it relevant whether the belief is actually held? (Dishonesty - theft - belief in consent)
The question is whether the belief is actually held, not whether it is reasonable. However, reasonableness may be relevant as evidence on the issue of whether the belief was actually held.
99
Claim of Right defined?
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.
100
Claim of right as a defence to robbery
If the court is satisfied that the defendant acted with claim of right, he is entitled to an acquittal on a charge of theft. Therefore, as theft is an essential element of robbery, claim of right is also a defence to robbery
101
If claim of right negates theft, what other offences is the offender liable for?
The offender may still be criminally liable for the violence or threats used in obtaining the property.
102
Taking definition
Taking is covered by S219 Crimes Act 1961
The theft is complete the moment the item is moved with intent to steal it
103
Will the immediate return of the property purge the offence?
No, theft is complete and the immediate return of the property will not purge the offence.
104
For offences under S219(1)(b) what must be proved?
It must be proved that the defendant obtained "in whatever manner" possession of, control over, property in which some other person has an ownership interest at that there has been a "using or dealing with" the property with the necessary intent.
105
"Using or dealing with" property requires that the defendant...
acted contrary to any authority or consent given by the owner or that their conduct in relation to the property was inconsistent with the rights of the owner.
106
"Possession" may be considered...
actual or potential possession..
107
To control something..
means to exercise authoritative or dominating influence over it.
108
When can a person have something in their control?
A person can control an item that is not in their physical custody and conversely can have something in their physical custody that they have no control over.
109
Any property definition
Defined by Section 2 of the Crimes Act 1961
Includes any real and personal property, any estate or interest in any real or personal property and any debt, and any thing in action, and any other right or interest.
110
Deprive owner permanently definition
The thief must desire or foresee as virtually certain, that the owner will never regain the property, but it is not necessary that he intends to keep it himself; an intent to destroy the property or to give it to someone else who will retain it will suffice.
111
What if the thief replaces the item?
Intent to replace the property taken with other similar items will not negate an intention to deprive the owner permanently of the original items stolen, although it may negate dishonesty.
112
Ownership defined
for the purposes of theft, ownership is defined by S218 of the Crimes act 1961
A person is to be regarded as the owner of any property that is stolen if, at the time of the theft, that person has -
- possession or control of the property; or
- any interest in the property; or
- the right to take possession or control of the property.
113
What connection must be proved for a charge of Robbery?
the prosecution must prove a connection between the violence or the threats and the stealing of the property - it must be shown that the defendant not only had an INTENT to steal at the time the violence or threats were used, but that the violence or threats for used for the purpose of extorting the property, or preventing or overcoming resistance
114
What would not be a sufficient connection between theft and violence (Robbery)
It would not be sufficient if the defendant punched a person for an unrelated reason then took the victims wallet as an after thought.
115
When will the violence or threats occur in robbery?
Usually it will occur at, or immediately before, the time of the theft, however there may be situations where that is not the case.
116
A threat made with the necessary intent...
may have a continuing effect that is still operating on the victims mind some time later when the goods are eventually handed over.
117
Can a threat of violence be made and some time later the goods be handed over?
If the threats are of such a calibre that they are playing on the minds of the victim and cause them to hand over the property at a later date.
118
What have the courts agreed on the definition of violence (Robbery)
The courts have accepted that there is a 'recognised graduation of violence from one end of a spectrum to the other"
119
Violence (Robbery) Definition
Violence must involve more than a minimal degree of force and more than a technical assault, but need not involve the infliction of bodily injury.
120
What is a fact for determination in each case ? (Robbery)
Whether or not the violence used is sufficient to amount to robbery
121
If property has been demanded but the threat of violence is less immediate, what charge would be more appropriate?
A charge under S239 may be more appropriate.
122
Threats of violence definition (Robbery)
The manifestation of an intention to inflict violence unless the money or property is handed over. The threat may be direct or veiled. It may be conveyed by words or conduct, or a combination of both
123
It is the conduct... (Robbery)
of the defendant that is relevant, rather than the presence or absence of fear in the victim. However the effect on the victim may be relevant to determining whether or not the defendants conduct was threatening
124
Is the effect on the victim relevant (Robbery)
The effect on the victim may be relevant in determining whether or not the defendants conduct was threatening.
125
A sufficient implied threat may be inferred from... (Robbery)
"inherently violent" circumstances where the victim is in a vulnerable position
126
If the prosecution is to rely on inherently violent circumstances (robbery) it should establish...
That the defendant foresaw his or her conduct would be perceived as constituting a threat.
127
Any person definition (Robbery)
Robbery and GBH need not be committed on same person. Violence may be directed at anyone, not just the victim of theft. It is therefore not necessary that the robbery and the GBH are committed on the same person.
128
Used to extort the property stolen (Robbery) What must the prosecution prove?
that the purpose of the violence or threats was to EXTORT the property stolen, or to PREVENT OR OVERCOME RESISTANCE to its being stolen.
129
What is insufficient in terms of using violence to extort the property stolen? (Robbery)
It is not sufficient that the offender simply used violence or threats if such use was for some collateral purpose.
130
Extort definition (Robbery)
To obtain by violence, coercion or intimidation or to extract forcibly
131
What does extortion imply?
An overbearing of the will of the victim. Thus if threats have not in face affected the will of the victim, there is no robbery.
132
Prevent definition (Robbery)
To keep from happening
133
When does prevent resistance apply in robbery?
When the offender anticipates resistance from the victim and uses violence or threats to ensure it does not start
134
Overcome definition
To defeat; to prevail over; to get the better of in a conflict
135
When will "overcome resistance" apply (Robbery)
When the victim is resisting and the offender uses violence or threats to overpower and subdue the victim.
136
At the time of definition (aggravated robbery)
This provision relates to situations where the violence used to extort the property stolen, or to prevent or overcome resistance has resulted in really serious harm to the person assaulted.
137
Immediately before or after definition (Aggravated robbery)
The term "immediately" refers to the connection in time between the robbery and the infliction of grievous bodily harm. Whether or not that connection amounts to "immediate" is a matter of fact and degree to be considered in each case.
138
Causes (Aggravated robbery) definition
Causes GBH if his or her actions makes him or her criminally responsible for it.
139
Being together with definition
There must be proof that, in committing the robbery, the defendant was part of a joint enterprise by two or more persons who were physically present at the robbery.
Each must share an intent to steal using their collective force should that be necessary and each must play some active role in the robbery.
140
What do two or more persons need to share to meet the "being together with" element of aggravated robbery?
They must share the intent to steal using their collective force should that be necessary and each must play some active role in the robbery.
141
Physical proximity (Being together with)(Aggravated robbery)
The term "Together with" requires that two or more people are actually present and acting together in the commission of the robbery.
142
Joint enterprise definition (Being together with)(Aggravated robbery)
Mere presence during the commission of robbery, without active participation, is not sufficient; the provision applies only to cases where the forces of two or more people acting together are deployed against the victim in the actual commission of the offence.
143
Being armed with definition (Aggravated robbery)
that the defendant is carrying the item or has it available for immediate use as a weapon.
144
Offensive weapon definition (Armed robbery)
is defined in 202A of the Crimes Act 1961.
In subsection 4(a) of this section, offensive weapon means any article made or altered for the use for causing bodily injury, or intended by the person having it with him for such use.
Subsection 4(b) of this section offensive weapon means any article capable fo being used for causing bodily injury.
145
Instrument definition
It will include any item intended to be used as a weapon or to intimidate and over bear the victims will to resist.
146
Anything appearing to be such definition (aggravated robbery)
It must be proved that the object appeared to be an offensive weapon or instrument to the victim and that the defendant intended or was at least reckless as to the possibility that it would be perceived as a weapon.
147
What is not included as "anything appearing to be such" (Aggravated robbery)
Does not include any part of a persons body.
148
Assault definition
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; and 'to assault' has a corresponding meaning.
149
What must you prove for blackmail (S237 Crimes Act 1961)
You must prove the identity of the 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 bdamage to property or
- endanger the safety of any person
And that the suspect intended 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.
150
Communication of the threat (Blackmail)
The threat made does not need to be received directly by the intended victim, provided it is conveyed to that victim.
151
Accusation definition (Blackmail)
Will normally refer to an allegation that the person is guilty of criminal offending whether or not any formal charges have been filed. It is immaterial whether the substance of the accusation is true or false, and the accusation does not need to relate to the person from who the demand is made.
152
Does it matter if the allegation is true or false? (Blackmail)
It is immaterial whether the substance of the accusation is true or false, and the accusation does not need to relate to the person from who the demand is made.
153
Disclosure definition (Blackmail)
Does not need to relate to criminal offending and will extend to revelation of information which would cause serious embarrassment or emotional distress.
154
Threats to damage property or endanger persons (Blackmail)
A threat to endanger the safety of any person or damage property should be given its ordinary and natural meaning so to capture threats of direct and indirect harm.
155
Obtain (blackmail) definition
To obtain for himself, herself or any other person
156
Benefit definition (Blackmail)
Does not require a financial element but includes a privilege, service or benefit that has no ascertainable monetary value.
157
Pecuniary advantage definition (blackmail)
Means an economic advantage or a financial gain or benefit, an enhancement of a persons financial position
158
Privilege definition (blackmail)
Means a special right or advantage and need not be a financial one
159
Property definition (blackmail)
Includes any real and personal property and any estate or interest in any real or personal property and any debt and any thing in action and any other right or interest
160
Statutory defence for blackmail
It is a defence to a charge of blackmail for the defendant to show they believed they were entitled to obtain the benefit or to cause the loss, and, objectively viewed, the making of the threat was a reasonable and proper means for obtaining the benefit or causing the loss.
161
Who is it up to determine if the stat defence for blackmail is sufficient?
It is up to the jury to determine whether the means were reasonable and proper.
162
Execute definition (demanding with intent to steal)
to execute a document is normally to "do what the law requires to give validity to the document. It is not confined to the signing or doing something to the face of the document.
Entry of data in a computer program may amount to 'execution' of a document.
163
Document capable of conferring a pecuniary advantage definition (demands with intent to steal)
A document is essentially as a thing which provides evidence or information or serves as a record.
A document that is capable of conferring a pecuniary benefit if it could do so in certain circumstances, even if those conditions are not likely to occur, and includes things such as; cheques, airline tickets, TAB tickets, completed bank withdrawal slip, insurance claim etc.
164
Demand definition (demands with intent to steal) and how is it to be conveyed to the victim?
It is sufficient if there is a clear request, made firmly. IT is not necessary that the demand be communication to the person whom it is directed; it its sufficient that the defendant said something that constituted such a demand to one person, with the intention that it be passed on to another from whom the property was demanded.
165
What kind of demand is sufficient (demands with intent to steal)
It is sufficient if there is a clear request, made firmly.
166
Is it necessary that the demand be communicated to the person to whom it is directed?(Demands with intent to steal?
No
167
Does the demand have to be made to the same person they intend to get property off? (Demands with intent to steal)
No, it is sufficient that the defendant said something that constituted such a demand to one person, with the intention that it be passed on to another person from whom the property was demanded.
168
Menaces or any threat (Demands with intent to steal)
It is not clear that there is any practical differences between "menaces" and "threats".
It will be sufficient if the words or conduct convey a threat of something detrimental or unpleasant happening to the person to whom the threat was made.
169
Can threats be made to a third party (Demands with intent to steal)
In appropriate cases, threats to cause harm to a third party, even an unidentified third party, can suffice for the offence.
170
Intent to steal definition (Demands with intent to steal)
Section 239 requires the prosecution to show the defendant acted dishonestly and without claim of right.
171
What must be proved for abduction (S208 CA 61) offences?
The crown must prove that:
1. The defendant took away or detained a person
2. The taking or detention was intentional
3. The taking or detention was unlawful
4. The taking or detention was without that persons consent (or with consent induced by fraud or duress)
5. The defendant knew that there was no consent to the taking or detention and
6. The defendant intended to
(a) Go through a form of marriage, or civil union with the person taken or detained; or
(b) Have sexual connection with the person taken or detailed; or
(c) Cause the person taken or detained to go through a form of marriage or civil union to another person or to have sexual connection with another person
172
Unlawfully definition (Abduction)
In most cases of abduction or kidnapping where a person is taken against their will with one of the specified criminal intents, it will be apparent from the circumstances that the offenders actions were unlawful.
Without lawful justification or excuse.
173
Who is it up to to prove the defendant acted unlawfully? (Abduction)
Where the defendant raises the question of lawfulness, it will be for the prosecution to prove the act was unlawful beyond reasonable doubt.
174
Taking away definition (Abduction)
It generally refers to situations where the victim is physically removed from one place to another.
175
Taking away vs detaining (abduction)
Taking away and detaining are two separate and distinct acts giving rise to two difference offences, and the prosecution should specify which of the acts is being alleged. Where there is evidence of both taking away and detaining, two charges should be filed.
176
Detains definition (Abduction)
Is an active concept rather than a passive one. IT involves doing something to impose a constraint or restraint on the person detained.
177
How long does someone have to be 'detained' for to qualify for abduction?
The crimes act does not specify a minimum period for which a persons freedom must be curtailed before they are deemed to have been "detained".
Mere delay or keeping back for a short or trifling period of time may not constitute detaining; there will be a point where a detention is so fleeting as to not amount to an intrusion for the purposes of s208-210.
Whether a person has or has not been detained will therefore be a question of fact and degree to be decided on the circumstances of each case.
178
Consent definition (abduction/kidnapping)
Consent is a persons conscious and voluntary agreement to something desired or proposed by another.
179
How can consent be conveyed? (Abduction / Kidnapping)
Consent may be conveyed by words or conduct or both.
180
Consent obtained by fraud definition (Abduction / Kidnapping)
In some cases, the offender may deceive the victim into agreeing to a proposition by misrepresenting the facts or their intentions
In other cases victim may acquiesce to an offenders demands based on fear of the consequences if they refuse
181
How may duress arise ? (Abduction / kidnapping)
IT may arise from the actual or implied threat of force to the victim or another person, but can also include other forms of pressure or coercion.
182
What is the 'critical' question' when looking at consent obtained by duress (Abduction / kidnapping)
Is whether the threats, pressure or whatever it is, is such as to destroy the reality of consent and overbears the will of the individual
183
Intent in abduction cases
In abduction, marriage and sexual connection appear only as matters of intent and it is not necessary to prove that the actually occurred or were even attempted.
184
When is the offence of abduction complete?
The offence is complete, in the sense that the offender becomes criminally liable, as soon as he details the victim with one of the specified intents.
185
Sexual connection defined
S2 Crimes Act 1961
Sexual connection means -
- 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
- Connection between the mouth or tongue of one person and a part of another persons genitalia or anus; or
- the continuation of connection of a kind described in paragraph (a) or paragraph (b)
186
Cause him / her to marry another person (abduction)
This relates to situations where the abductor takes away or detains a victim to enable another person to marry them.
187
Cause him / her to have sexual connection with another person (abduction)
Under this provision the offenders intent is to enable another person to have sexual connection with the victim.
188
What must be proved for kidnapping?
The acts reps elements of kidnapping are identical to those of abduction. The only difference is the offenders intent.
189
Do you have to prove the intent was carried out for kidnapping?
As with abduction, no you do not have to prove the intent was carried out. Only that they had the intent at the time of taking away.
190
For a conviction against S209 (Kidnapping) what must you prove?
- Defendant took away or detained a person
- Taking or detention was intentional or deliberate
- Taking or detention was unlawful
- Taking was done without that persons consent (or with consent induced by fraud or durress)
- Defendant knew that there was no consent to the taking or detention; and
the defendant intended to
(a) hold the person for ransom or service or
(b) cause the person to be confined or imprisoned or
(c) cause the person to be sent or taken out of NZ
191
Intent to hold for ransom (kidnapping)
Kidnapping is often used as a mean to extort money from the victims family or from those who would seek to have the victim returned.
192
Ransom definition (kidnapping)
A ransom is a sum of money demanded or paid for the release of a person being held captive
193
"cause" to be confined definition (abduction of young person under 16)
"To cause" suggests that although the kidnapper must intend to be responsible for the victim being confined, it is not necessary for him to directly effect the confinement himself.
194
Intent to cause to be imprisoned (Kidnapping)(
To "imprison" a person means to put them in prison, or to confine them as if they are in prison.
This has a narrower meaning than confinement and can apply in situations where the victim is locked in a room or car.
195
Intent to cause to be confined definition (abduction of young person under 16)
Confining a person can include restricting their movements to within a geographical area, but also has a wider meaning that includes curtailing their activity and exercising control and influence over them.
196
Intent to cause to be confined definition (kidnapping)
Confining a person can include restricting their movements to within a geographical area, but also has a wider meaning that includes curtailing their activity and exercising control and influence over them.
197
Intent to cause to be sent out of NZ (Kidnapping)
Under this provision the offenders intent is for the victim to leave NZ.
The term "sent" may include situations where the victim leaves the country on their own, perhaps as the result of a threat or other form of duress.
198
Intent to cause to be taken out of NZ (Kidnapping)
The word taken suggests that the victim is in the company or custody of a person accompanying them out of NZ.
199
For a conviction against 210(1) C.A 61 (Takes away or detains a YP) the crown must prove that
- The defendant took, enticed or detained a person under 16
- the taking, enticement or detention was 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, or charge 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
200
For a conviction against 210(2) Crimes Act 1961 (receives a YP) the crown must prove that
- the defendant received a person under the age of 16
- The receiving was intentional
- the defendant knew the young person had been unlawfully taken or enticed away or detained by another from a parent, guardian or other person having lawful care or charge of the YP is their possession of that young person; and
- the defendant intended by reason of the the receiving to deprive a parent, guardian or other person having lawful care or charge of him or her of the possession of that young person.
201
Section 210(2) (receives YP ) Intent definition
It could be read as broadening the scope of the offence to include people who receive a young person without an intent to deprive the person with lawful care of possession provided the defendant knew that the person responsible for the taking had such an intent.
202
Person having lawful care or charge (abduction of child under 16) definition
It is not an offence against the person of the child, but rather against the custodial rights of the parent or guardian.
203
Who does S210 (abduction of yp under 16) protect?
Parents, and guardians and also protects the rights of those having temporary lawful possession of a young person, such as Child youth and family caregivers.
204
Does depriving a parent / caregiver need to be their primary intention (S210 - abduction of yp under 16)
It may not necessary be the offenders primary intention, however if they know that their actions will inevitably cause that outcome, then depriving the parent can also be said to have been "intentional"
205
Young person definition (S210 - abduction of yp)
For the purposes of this section it is defined as someone under 16 years old.
206
Proof of age required (210 - Abduction of YP under 16)
Where age is an essential element of a charge, the prosecution must prove the victims age at the time of the alleged offence, using the best evidence available to do so.
In practice, this generally involves producing the victims birth certificate in conjunction with independent evidence that identifies the victim as the person named in the certificate.
207
Unlawfully definition (abduction of YP under 16)
Means no more than "without lawful authority".
Where lawfulness is raised, it is for the prosecution to prove beyond reasonable doubt that the kidnapping was unlawful.
208
Entices away definition (Abduction of YP under 16)
Means to tempt, persuade, or attract by arousing hope or desire.
209
Immaterial that the child consents (Abduction of YP)
Subsection (3)(a) provides that it is immaterial that the child consens to or even instigates the departure, although a person "takes" a child only if his or her conduct is an effective cause of it"
210
Receives a YP definition (abduction of YP under 16)
Sub (2) create the offence of receiving a young person, knowing they have been unlawfully taken with the necessary intent.
This may relate to situations where, for example, a father takes his child from its mother contrary to a court order and hides the child at the grandparents house.
211
What does Migrant Smuggling involve?
A person who has freely consented to being brought into NZ as an illegal immigrant and is not subject to coercion or deception
212
What does People trafficking involve?
A person who is brought to NZ by means of coercion and / or deception. People are often trafficked in order to exploit them in their destination country. E.g. forced labour, for removal of their organs or most commonly, for sexual exploitation
213
What are the differences between smuggling migrants and people trafficking?
The key differences are:
- Consent
- The purpose of the travel or movement
- The relationship between the person moved and the people enabling movement
- Violence, intimidation or coercion (or lack thereof)
- Liberty
- Profit
214
What are the three approaches when dealing with people trafficking or migrant smuggling?
Reactive - Victim led, police notified
Proactive - Police led with a combination of standard investigation techniques and intelligence resources
Disruptive - appropriate only in circumstances where there is immediate risk
215
What priority should be given (in order) when investigating a robbery?
SECURE the safety of all members of police and the public
PREVENT the crime
CONTAIN the area of the offence
GATHER evidence and PRESERVE it
ESTABLISH and ELIMINATE suspects
IDENTIFY the offender
LOCATE the offender
SEARCH the offender and their premises
ESTABLISH what case exists for prosecution
PREPARE files for prosecution
216
What does Section 127 Crimes Act 1961 outline?
Section 127 states that there is no presumption of law that a person is incapable of sexual connection because of his / her age
