Violence Offences Flashcards
(144 cards)
1
Q
To determine an appropriate charge, the investigation will focus on establishing…
A
- Offender’s intent
2. Degree of harm suffered by a victim
2
Q
Legislation
Wounding With Intent
S.188 C.A.1961
A
- Everyone is liable to imprisonment for a term not exceeding 14 years, who with intent to cause GBH to anyone, wounds, maims, disfigures, causes GBH to any person.
- Everyone is liable to imprisonment for a term not exceeding 7 years who, with intent to injure anyone, or with reckless disregard for the safety of others, wounds, maims, disfigures or causes GBH to any person.
3
Q
Person
A
Gender neutral.
Proven by judicial notice or circumstantially.
It is not necessary that the person suffering the harm is the intended victim.
4
Q
Intent
A
In a criminal law context there are two specific types of intent.
Firstly, there must be an intention to effect an act.
Secondly, there must be an intention to get a specific result.
5
Q
Proving Intent
A
The onus is generally on the prosecution to prove an offender’s intent beyond reasonable doubt.
Offender’s admission is good evidence, but it is good practice to support those with circumstantial evidence.
The circumstantial evidence:
- Offender’s words / actions before or after an event
- Surrounding circumstances
- Nature of the act itself
6
Q
Additional Circumstantial Evidence (8 points)
A
- Previous threats
- Evidence of premeditation
- Use of weapon
- Whether the weapon used was an opportunistic or purposefully brought
- Number of blows
- Degree of force
- Body parts targeted (eg head)
- Degree of resistance / helplessness of a victim
7
Q
R v TAISALIKA
A
The nature of the blow and the gash which it produced on the complainant’s head would point strongly on the presence of the necessary intent.
Loss of memory of past events is not the same as lack of intent at the time.
8
Q
Degree of harm
A
Wounding / maiming / disfiguring need not be grievous if in causing that harm, the offender had the intent to cause really serious harm.
9
Q
Causes GBH
A
A person causes GBH if their actions make them criminally responsible for it.
10
Q
GBH
DPP v SMITH
A
“Bodily Harm” needs no explanation and “Grievous” means no more and no less than really serious.
GBH can be defined as harm that is really serious.
As long as the harm is serious, it need not involve life threatening or permanent injury.
As long as the harm is serious, it does not matter how it was caused.
11
Q
Psychiatric Injury
A
“Bodily Harm” in s.188 C.A.1961 includes really serious psychiatric injury identified as such by an appropriate specialist evidence.
12
Q
Not limited to immediate harm
A
All that is required for the actus reus is an act of causing GBH.
There is a physical link between a cause and effect, but not one of time.
Consequences may be delayed, but there are consequences nonetheless.
13
Q
Wounds
A
Wound involves the breaking of the skin and flowing of the blood, either internally or externally.
14
Q
R v WATERS
A
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 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 a separation of tissues, may be internal.
15
Q
Wounding vs GBH
A
Wounding / maiming / disfiguring - type of the injury.
GBH - degree or seriousness of the injury.
(Single stab - may be wounding, but five stabs - GBH due to seriousness of the wounds caused)
16
Q
Maiming
A
Involves militating / crippling / disabling a part of a body so, as to deprive a person of the use of a limb or one of the senses.
Requires some degree of permanence.
17
Q
Disfigurement
A
To “disfigure” means to deform or deface, to mar or alter a figure or appearance of a person.
Does not have to be permanent.
18
Q
R v RAPANA
A
The word “Disfigure” covers not only permanent damage, but also temporary damage.
19
Q
The Doctrine of Transferred Malice
A
It is not necessary that the person suffering the harm was the intended victim.
Where the defendant mistakes the identity of the person injured, or when the harm intended for one person accidentally inflicted on another, he is still criminally responsible, under the Doctrine of Transferred Malice, despite the wrong target being struck.
20
Q
Injury vs GBH
A
Harm at the lower scale of seriousness - injury.
Harm at the higher scale of seriousness - wounds / maims / disfigures or GBH (depending on seriousness)
21
Q
To injure
A
To injure means to cause actual bodily harm
22
Q
Actual Bodily Harm
A
Actual Bodily Harm may be internal or external.
Does not have to be permanent or dangerous.
Actual bodily harm may include a psychiatric injury, if medical evidence confirms an identifiable clinical condition.
Expert evidence should be called identifying a recognised psychiatric illness.
23
Q
R v DONAVAN
A
“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.
24
Q
Recklessness
A
Acting recklessly involves consciously and deliberately taking an unjustifiable risk.
It must be proved not only that the defendant was aware of the risk and proceeded regardless (subjective test), but also that it was unreasonable for him to do so (objective test).
25
R v HARNEY
Recklessness means the conscious and deliberate taking of an unjustified risk.
In NZ it involves proof that he consequences complained of could well happen, together with an intention to continue the course of conduct regardless of the risk.
26
Proving Recklessness
The following must be proved:
1. The defendant consciously and deliberately ran the risk (subjective test)
2. The risk was one that was unreasonable to take in the circumstances, as they were known to the defendant (objective test based on whether a reasonable person would have taken the risk)
Subjective meaning - an accused had conscious appreciation of the relevant risks.
27
Reckless disregard for the safety of others
While it is necessary to prove that the defendant foresaw the risk of injury to others, it is not necessary that he recognised the extend of injury that would result.
28
Legislation
Injuring With Intent
S.189 C.A.1961
(1) Everyone is liable to imprisonment for a term not exceeding 10 years who, with intent to cause GBH to anyone, injures any person
(2) Everyone is liable to imprisonment for a term not exceeding 5 years who, with intent to injure any person, or with reckless disregard for the safety of others, injures any person
29
Legislation
Aggravated Wounding or Injury
S.191 C.A.1961
(1) Everyone is liable to imprisonment for a term not exceeding 14 years who, with intent -
(a) To commit or facilitate the commission of any imprisonable offence, or
(b) To avoid the detection of himself or of any other person in the commission of any imprisonable offence, 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 -
Wounds, maims, disfigures, causes GBH to any person, or stupefies or renders unconscious any person, or by any violent means renders any person incapable of resistance
(2) Everyone is liable to imprisonment for a term not exceeding 7 years who, with any such intent as aforesaid, injures any person.
30
Specific intent to be proved in Aggravated Wounding / Injury
One of the specific intents is required to be proved:
1. Intent to commit or facilitate the commission of any imprisonable offence
2. Intent to avoid the detection of himself or of any other person in the commission of any imprisonable offence
3. Intent to avoid arrest or facilitate the flight of himself or of any other person upon the commission or attempted commission of any imprisonable offence
Where the offender assaults the victim with one of those intents, but no actual harm is suffered, the appropriate charge is Aggravated Assault (s.192 C.A.1961)
31
Two fold test for intent
The prosecution must satisfy "two fold" test for intent:
1. The defendant intended to facilitate the commission of any imprisonable offence (or (a), (b), (c) s.191 C.A.1961)
2. The defendant intended to cause the specific harm, or was reckless as that risk
32
R v TIHI
In addition to one of the specified intents outlined in paragraphs (a), (b) or (c) it must be proved 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.
33
Imprisonable Offence
Any offence punishable by a term of imprisonment
34
Facilitate the commission of any imprisonable offence
S.191(1)(a) - The offender causes the specific harm to make it easier for him to commit the intended imprisonable offence.
Providing the defendant had the necessary intent at the time of causing the harm, it is immaterial whether he actually commits the intended imprisonable offence or not.
35
Avoid detection
S.191(1)(b) - The defendant causes the specific harm during the commission of an imprisonable offence to prevent himself or another person from being "caught in the act"
36
Facilitate Flight
The defendant causes the specific harm to enable the offender(s) to more easily make their escape or to prevent their capture. It must be proved that an imprisonable offence has been committed or attempted.
37
R v WATI
There must be proof of the commission or attempted commission of a crime by either the person committing the assault or by the person whose arrest or flight he intends to avoid or facilitate
38
Stupefies
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 may hinder an intended crime. It may also include the circumstances where administration of drugs has led to dis-inhibition and stimulated uncharacteristic behaviour.
39
Renders unconscious
The offender's actions must cause the victim to lose consciousness (includes blow, kick, administration of noxious substances, etc)
40
Violent Means
Violent means include the application of force that physically incapacitates a person, such as tying the victim's hands/feet or inflicting debilitating injuries.
It is not limited to physical violence and may also include threat of violence depending on the circumstances.
41
Renders incapable of resistance
Mere threat of violence may not in itself be sufficient to constitute "violent means".
The victim must submit to the offender's will in the belief that he will carry out his threats unless they do so.
42
Aggravated Injuring
The offender has one of the intents listed in paragraphs (a), (b) or (c) of section 191 CA1961, but the outcome to the victim is injury
43
Legislation
Aggravated Assault
S.192 CA1961
1. 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, or
(b) To avoid the 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 I of himself or of any other person upon the commission or attempted commission of any imprisonable offence.
2. Everyone is liable to imprisonment for a term not exceeding 3 years who assaults any constable or any person acting in aid of any constable, or any person in the lawful execution of any process, with intent to obstruct the person so assaulted in the execution of his duty.
44
S.192(1) What is to be proved:
1. Assault (all elements)
- Intention to apply or attempt to apply force;
- Application or attempted application of force, whether directly or indirectly;
- Threat to apply force in circumstances where the victim believes the offender will be able to carry out the threat
2. Offender's intent at the time of the assault:
- To commit or facilitate the commission of an imprisonable offence;
- To avoid the detection of himself or of any other person in the commission of an imprisonable offence;
- To avoid the arrest or facilitate the flight of himself or of any other person upon the commission or attempted commission of an imprisonable offence.
45
S.192(2) What is to be proved:
1. Assault (all elements)
- Intent to apply or attempt to apply force;
- Application or attempted application of force, whether directly or indirectly;
- Threat to apply force in circumstances where the victim believes the offender will be able to carry out the threat
2. Offender's intent at the time of the assault:
- To obstruct the Constable, a person coming to their aid or anyone executing a lawful process
46
Legislation
Discharging Firearm or Doing Dangerous Act With Intent
S.198 CA1961
1. Everyone is liable to imprisonment for a term not exceeding 14 years who, with intent to do GBH -
(a) - Discharges any firearm, airgun, or other similar weapon at any person, or
(b) - Sends or delivers to any person, or puts in any place, any explosive or injurious substance or device, or
(c) - Sets fire to any property
2. Everyone is liable to imprisonment for a term not exceeding 7 years who, with intent to injure or with reckless disregard for the safety of others, does any of the act referred to in subsection (1) of this section.
47
S.198 Mens Rea and Actus Reus
```
Mens Rea:
- Intent to do GBH, or
- Intent to injure, or
- Reckless disregard for the safety of others
Actus Reus:
- Discharging a firearm at a person, or
- Delivering explosives, or
- Setting fire to property (tangible)
```
Where the victim suffers actual bodily harm, the appropriate charge is under s.188 / 189 CA1961
48
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. An intention to shoot that person must be established.
49
Discharge
Means to fire or shoot
50
Firearm vs Airgun
Firearm acts by force of explosives
| Airgun acts by force of compressed air or gas
51
Injurious Substance or Device
Covers range of things capable of causing harm to a person
52
S.198(1) - Completion of the offence
S.198(1)(a) - Actual discharge of a firearm at a person
S.198(1)(b) - Explosive, injurious substance or device sent/delivered/put in place
It is not necessary for the explosion to occur, but the substance must be capable of exploding or causing injury.
53
Property
Includes any real or 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.
54
Legislation
Using Any Firearm Against Law Enforcement Officer, etc
S.198A CA1961
1. Everyone is liable to imprisonment for a term not exceeding 14 years who uses any firearm in any manner whatever against any Constable, or any traffic officer, or any prison officer acting in the course of his or her duty knowing that, or being reckless whether or not, that person is a member of the Police, or a traffic officer, or a prison officer so acting.
2. Everyone is liable to imprisonment for a term not exceeding 10 years who uses any firearm in any manner whatever with intent to resist the lawful arrest or detention of himself or herself or any other person.
55
Uses firearm in any manner whatever
"In any manner whatever" includes a range of acts that stop short of actual shooting at an officer.
It is not necessary that the firearm was present at the officer or that it be discharged.
Also includes the use of firearms in ways in which they are not normally used, such as a club.
56
R v SWAIN
To deliberately and purposefully 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 within the meaning of s.198A CA1961
57
Legislation
Constable - Interpretation
S.4 Policing Act 2008
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 NZ Police
58
Acting in the course of duty
An officer must be acting in the course of his or her duty.
The term includes every lawful act a Constable does while on duty and may include acts done where the circumstances create a professional obligation for a Constable to exercise policing duties while off duty.
However a Constable who acting unlawfully cannot be said to be acting in the course of his or her duty.
59
Knowing
The defendant must know:
- the victim is a police officer, and
- the officer is acting in the course of his or her duty, or
- be reckless as to those facts
Knowing means knowing or correctly believing.
The defendant may believe something wrongly but cannot know something that is false.
60
Intent to resist lawful arrest or detention
It must be proved that the defendant knew an attempt was being made to arrest or detain him or her, or the person he or she was assisting.
61
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
62
Legislation
Commission of an Imprisonable Offence with firearm
S.198B CA1961
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 imprisonbale offence, has any firearm with him or her in circumstances that prima facia show an intention to use it in connection with that imprisonable offence.
63
S.198B - Uses any firearm
The term includes firing, presenting, displaying a firearm in menacing manner.
(Does not include using a firearm as a club)
64
S.198B - Has with him
The offender must knowingly have the firearm with them - mere possession is not sufficient.
The firearm must be available and at hand for the offender to use while committing the imprisonable offence.
65
Physical Element of Possesion
Physical element is a physical custody/control over the item.
Can be:
- Actual (a person has physical custody/control over the item)
- Potential (a person has the potential to have custody/control over the item)
66
Mental Element of Possession
Mental element is a combination of both knowledge that the person possesses the item and an intention to posses the item.
Two or more people can be charged in relation to a single firearm.
67
S.198B - Mere possession is not sufficient
Mere possession is not sufficient, there must be prima facie (at first appearacne) showing the intention to use the firearm in the commission of an imprisonable offence
68
Legislation
Occupier of premises or driver of vehicle deemed to be in possession of firearm, airgun, pistol, imitation firearm, restricted weapon, or explosive found therein
S.66 Arms Act 1983
For the purpose of this Act 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.
69
Aggravating Factors of Robbery
1. Causing GBH
2. Two or more offenders acting together
3. Use of weapon
70
Legislation
Robbery
S.234 CA1961
1. Robbery is a theft accompanied by violence or by threats of violence to any person or property, used to extort the property stolen or to prevent or overcome resistance to its being stolen.
2. Everyone who commits robbery is liable to imprisonment for a term not exceeding 10 years.
71
Legislation
Dishonesty
S.217 CA1961
In relation to any act or omission, means done or omitted without a belief that there was expressed or implied consent to, or authority for, the act or omission from a person entitled to give such consent or authority.
72
Dishonesty
Dishonesty is a state of mind, and the fact that the defendant acted dishonestly may be inferred from circumstances.
The jury can infer that the defendant had a dishonest mind, unless he/she can raise a reasonable doubt on the basis of relevant but mistaken belief that:
- act/omission was expressly/impliedly consented to by the person entitled to give consent
- act/omission was authorised by a person entitled to authorised it
73
Claim of Right
| S.2 CA1961
In relation to any act, means a belief at the time of the act in 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 of any matter of law other than the enactment against which the offence is alleged to have been committed.
Claim of right is a defence to theft and therefore to robbery.
74
R v SKIVINGTON
Larceny (or theft) is an ingredient of robbery, and if the honest belief that the man has a claim of right is a defence to larceny, then it negatives one of the ingredients of robbery, without proof of which the full offence is not made out.
75
Taking
The theft is complete (an item is taken) the moment an item is moved with intent to steal it.
76
R v LAPIER
Robbery is complete the moment the property is taken, even if possession by the thief is only momentarily.
77
Using or dealing with
The offender acted contrary to the consent/authority given by the owner.
Or the defendant's conduct in relation to the property was inconsistent with the rights of the owner.
78
R v COX
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 awareness by the accused that the substance is in his possession, and the intention to exercise possession.
79
To control
To control something means to exercise authoritative or dominating influence over it.
80
To deprive owner permanently
The thief must desire that the owner will never regain the property, but it is not necessary that he intends to keep the property to himself (it can be destroyed or given to someone else)
81
Property ownership
A person is to be regarded as the owner of the property stolen if, at the time of the theft, that person has -
1. Possession/Control over the property, or
2. Any interest in the property, or
3. The right to take possession/control of the property
82
Accompanied by violence
It must be proved not only that the defendant had an intention to steal at the time of the violence/threats were used, but also that the violence/threats were used to extort the property or to prevent/overcome resistance.
Violence/threats are usually occurs immediately before or at the time of the theft.
But there are may be occasions where the property handed over to a thief as a result of the previous threats that still operating in the victim's mind at the time.
83
R v MAIHI
It is implicit in "accompany" that there must be a nexus (connection or link) between the act of stealing and 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.
84
Violence (robbery)
Violence must involve more than a minimal degree of force and must be more than a technical assault, however need not involve the infliction of bodily injury.
Whether the degree of violence used is sufficient to amount robbery is a matter of fact to be determined in each case.
85
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.
86
Threats of violence
Threats of violence is a manifestation of an intention to inflict violence unless money or property be handed over.
The threat may be direct or veiled and can be conveyed by words or conduct or a combination of both.
87
Threats of violence - Facts to consider
Whether the conduct complained of amounts to a threat of violence must be assessed in the context in which it occurred.
Consideration must be given to:
1. The relative ages of parties
2. Their respective physics
3. Their appearance
4. Their demeanour
5. What was said and done by those involved
6. The manner and settings in which the incident took place
88
Inherent violence
A sufficiently implied threat may be inferred from inherently violent circumstances where the victim is in vulnerable position.
It must be established that the defendant foresaw that his/her conduct would be perceived as a threat.
The actual presence of a fear on the part of the victim is not a yardstick. It is the conduct of the accused that has to be assessed rather than the strength of nerves of the person threatened.
89
Any person (Robbery)
Robbery (and GBH) need not be committed at the same person.
| Violence can be directed at anyone.
90
Used to extort property stolen
It must be proved that the violence was used to extort the property stolen to prevent/overcome resistance to its being stolen.
91
To extort
To extort means to obtain by violence, coercion or intimidation or to extract forcibly.
Extortion implies an overbearing of the victim's will.
Therefore, of the threats did not affect the victim's will, there is no robbery.
92
To prevent
To prevent means to keep from happening.
| The offender anticipates the resistance from the victim and uses violence/threats to ensure it does not start.
93
To overcome
To overcome means to defeat, to prevail over, or to get better in a conflict.
The offender uses violence/threats to overpower or subdue the victim.
94
Legislation
Aggravated Robbery
S.235 CA1961
1. Everyone is liable to imprisonment for a term not exceeding 14 years who -
(a) Robs any person and, at the time of, or immediately before or immediately after, the robbery causes GBH to any person, or
(b) Being together with any other person, 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 person
95
Immediately before / after robbery
The connection in time between the robbery and infliction of GBH.
Whether the connection amounts to "immediate" is a matter of fact to be considered in each case.
96
Being together with
There must be a proof that, in the commission of the robbery, the defendant was a 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 robbery.
97
Physical proximity
Two or more persons are physically present and acting together in the commission of the robbery.
98
R v JOYCE
The Crown must establish that at least two persons are physically present at the time the robbery was committed or the assault occurred.
99
Joint enterprise
Mere presence during the commission of the robbery without active participation is not sufficient.
The force of two or more people acting together must be deployed against the victim in the actual commission of the offence.
100
R v GALEY
Being together in the context of s.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 perpetuation of the crime.
101
Being armed with
The defendant is carrying an item or has it available for immediate use as a weapon
102
Offensive weapon
Any article capable of being used for causing bodily injury
103
Instrument (Robbery)
Any article intended to be used as a weapon or to intimidate / overbear the victim's will to resist.
104
Anything appearing to be such a weapon or instrument
It must be proved that:
1. The article appeared to be an offensive weapon to the victim, and
2. The defendant intended / was reckless that the article would be perceived as a weapon
Does not include a part of a body.
Does include a dog.
105
Legislation
Assault With Intent To Rob
S.236 CA1961
1. Everyone is liable to imprisonment for a term not exceeding 14 years who with intent to rob any person -
(a) Causes GBH to that person or any other person, or
(b) Being armed with any offensive weapon or instrument, or any thing appearing to be such a weapon or instrument, assaults that person or any other person, or
(c) Being together with any other person or persons, assault that person or any other person
2. Everyone who assaults any person with intent to rob that person or any other person is liable to imprisonment for a term not exceeding 7 years
Assault with intent to rob occurs when no robbery is taken but the offender has robbery as their intent.
106
Assault (definition)
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, and "to assault" has a corresponding meaning.
107
Legislation
Blackmail
S.237 CA1961
1. Everyone commits blackmail who threatens, expressly or by implication, to make any accusation against any person (whether living or dead), to disclose something about any person (whether living or dead), or to cause serious damage to property or endanger the safety of any person with intent -
(a) To cause the person to whom the threat is made to,act in accordance with the will of the person making the threat, and
(b) To obtain benefit or to cause loss to any other person
2. Everyone who acts in the manner described in subsection (1) is guilty of blackmail, even though that person believes that he or she is entitled to the benefit or to cause the loss, unless the making of the threat is, in the circumstances, a reasonable and proper means for effecting his or her purpose.
3. In this section and in section 239, benefit means any benefit, pecuniary advantage, privilege, property, service or valuable consideration.
108
Legislation
Punishment of Blackmail
Section 238
Everyone who commits blackmail is liable to imprisonment for a term not exceeding 14 years.
109
Blackmail - what must be proved
1. The identity of the suspect
2. The suspect 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 other 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
110
Blackmail - "Threatens"
| Term / Intent / Purpose
The term should be taken liberally and it is up to the jury to decide in the meaning of the words used.
It is not necessary that the person threatened is the same person against whom the accusation/disclosure is made.
The defendant must intend that the person threatened acts in accordance with the defendant's will.
The purpose of the threat is to obtain any benefit or to cause loss to any other person.
111
Blackmail - Communication of the threat
It is not necessary that the threat is made directly to the intended victim as long as it conveyed to that victim.
112
Blackmail - Accusation
Allegation that the person is guilty of a criminal conduct.
| It is immaterial whether the substance of the accusation is true or false.
113
Blackmail - Disclosure
Revealing information high may lead the others to begin an investigation from which the charges may be laid.
It is not limited to the specific accusation / allegation.
It need not relate to the criminal conduct but nevertheless something which would cause serious embarrassment or emotional distress.
114
Blackmail - Threats to damage property or to endanger person's safety
Threats to cause serious damage to property or to endanger the safety of any person
115
To obtain
Means to obtain or retain for himself or herself or for any other person.
116
Blackmail - Benefit
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Section 237(3)
In this section and in section 239 benefit means any benefit, pecuniary advantage, privilege, property, service or valuable consideration.
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117
Pecuniary advantage
Economic advantage which enhances the person's financial position
118
Privilege
Special right or advantage (need not be financial)
119
Valuable consideration
Money or money's worth
120
Blackmail - Statutory Defence
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Section 237(2)
Everyone who acts in the manner described in subsection (1) is guilty of blackmail, even though that person believes that he or she is entitled to the benefit or to cause the loss, unless the making of the threat is, in the circumstances, a reasonable and proper means for effecting his or her purpose.
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The jury is to determine whether the means were reasonable and proper in the circumstances.
121
Legislation
Demanding With Intent To Steal
Section 239 C.A.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.
2. Everyone is liable to imprisonment for a term not exceeding 7 years who with menaces or by any threat, demand any property from any person with intent to steal it.
122
Stages when robbery can be reported
1. Before an intended robbery
2. During or after an incident
3. After the offender has left the scene
123
Demanding With Intent - Completion of the offence
The offence is complete when the threat is made with the necessary intent.
124
Demanding With Intent - To execute a document
To do what law requires to give validity to the document.
It need not be limited to the signing or doing something to the face of the document.
(Entry of computer data amounts to execution of document)
125
Document
Thing that provides evidence or information or serves as a record.
126
To demand
To make a clear request firmly.
| It is not necessary that the demand is made directly to the person to whom it is directed
127
Menaces or threat
Words or conduct conveying a threat or that something unpleasant will happen to the person to whom the threat is made.
Includes threat to harm the third party.
128
Intent to steal (what must be proved)
It must be proved that the defendant acted:
1. dishonestly and
2. without claim of right
129
Abduction vs Kidnapping
The difference is in offender's intent.
Abduction = the offender is sexually motivated
Abduction of a young person under 16 = to deprive parents/guardian of possession of young person
Kidnapping = to hold for ransom or intent to imprison a person.
130
Legislation
Abduction for purposes of marriage or serial connection
Section 208 C.A.1961
Everyone is liable to imprisonment for a term not exceeding 14 years who unlawfully takes away or detains a person without his or her consent or with his or her consent obtained by fraud or duress -
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 or to have sexual connection with some other person
131
Abduction - what must be proved
1. The defendant took away or detained a person
2. The taking or detention was intentional and deliberate
3. The taking or detention was unlawful
4. The taking of detention was without the person's consent (or with consent obtained by fraud or duress)
5. The defendant knew that there was no consent to the taking of detention
6. The defendant intended to:
A. Marry the person taken/detained
B. Have sexually connection with the person taken/detained
C. Cause the person taken/detained to marry another person or to have sexual connection with another person
132
Unlawfully
Means without lawful justification, authority or reasonable excuse
The prosecution is to prove that the act was unlawful beyond reasonable doubt
133
Abduction - Taking Away
Physical removal of the person from one place to another.
134
R v WELLARD (Kidnapping)
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.
135
R v CROSSAN (Taking Away vs Detaining)
Taking away and detaining are separate and distinct offences. The first consist 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.
Where there is evidence of taking away and detaining - two offence should be filed
136
Abduction - Detaining
Detaining means to do something to impose a restraint on the person detained
137
R v PRYCE (Detaining)
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
138
Consent
Consent is a person's conscious and voluntary agreement to something desired or proposed by another.
Consent must be true and valid.
It can be conveyed by the words of conduct of a combination of both
139
R v COX (consent)
Consent must be full, voluntary, free and informed, felt and voluntarily given by a person in a position to form a rational judgement.
140
Consent by duress
Where the victim agrees to the offender's demand because of a fear of the consequences of they refuse.
Duress include a threat of force to the victim or another person and may also include other firm of pressure or coercion.
141
Intent - Abduction cases
The intent on abduction cases is marriage or sexual connection.
It doesn't matter if they actually occurred or attempted.
142
R v MOHI (completion of the offence - abduction)
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.
143
R v WAAKA (Intent)
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 purpose of the section.
144
Cause him/her to marry another person or to have sexual connection with another person
Cause him or her to marry another person
Abductor takes away or detains a victim to enable another person to marry him / her.
Cause him or her to have sexual connection with another person
Abductor takes away or detains a victim to enable another person to have sexual connection with him / her.
