Violence Offences CIB010 Flashcards
(137 cards)
1
Q
What is S188 Crimes Act 1961?
A
188 Wounding with intent
(1) Every one is liable to imprisonment for a term not exceeding 14 years who, with intent to cause grievous bodily harm to any one, wounds, maims, disfigures, or causes grievous bodily harm to any person.
(2) Every one 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 grievous bodily harm to any person.
2
Q
What is the difference between S188(1) and S188(2)?
A
(1) - the offender intends to cause GBH
(2) - the offender only intends to injure the victim, although the actual outcome is greater degree of harm than he anticipated. It allows for an alternative mens Rea element involving “reckless disregard for the safety of others”
3
Q
What are the two specific types of intention?
A
- Deliberate Act:
‘Intent’ means the act or omission must be done deliberately. It must be more than involuntary or accidental. Under the definition of assault it means “the act of intentionally applying or attempting to apply for force”. - Intent to produce a result:
An intent is an intent to produce a specific result. In this context, result means “aim, object, or purpose”.
4
Q
In regards to S188, who proves intent and to what degree?
A
Prosecution and beyond reasonable doubt.
5
Q
What are some examples of circumstantial evidence when proving intent? (not serious)
A
- the offenders actions and words before, during, and after the event
- the surrounding circumstances
- the nature of the act itself
6
Q
R v Taisalika
A
The nature of the blow and the gash which it produced on the complainants head would point strongly to the presence of the necessary intent.
7
Q
What are some examples of circumstantial evidence when proving intent in a serious assault case?
A
- prior threats
- evidence of premeditation
- the use of a weapon
- whether any weapon used was opportunist or purposely bought
- 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. unconscious)
8
Q
If there was an intent to do GBH, does there have to be GBH?
A
No. The question is not what the wound is, but what wound was intended.
9
Q
Does there need to be an assault in S188?
A
No, there is no reference to the use of violence, and it is therefore not necessary to prove an assault in all cases (although most do involve and assault).
10
Q
DPP v Smith
A
“Bodily harm” needs no explanation and “grievous” means no more and no less than “really serious”.
11
Q
What does “grievous” refer to?
A
It refers to the degree of harm rather than to the nature of it or how it was caused.
12
Q
How is ‘psychiatric injury’ included under ‘bodily harm’ in S188?
A
“Bodily harm” in S188 includes really serious psychiatric injury identified as such by appropriate specialist evidence.
13
Q
When referring to S188, what is meant by “not limited to immediate harm”?
A
The link between cause and effect is a physical one not one of time. The consequences may be delayed, but they are consequences nonetheless. I.e HIV > AIDS (although now you can get medication so will need to be assessed each time).
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 a flow of blood and at the site of a blow or impact.
The wound will more often than not be external. But there are those cases where the separation of the tissues may be internal.
15
Q
What is the difference between ‘wounding’ 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.
Eg. Stabbing a person in the arm once vs stabbing a person in the chest 5 times.
16
Q
Define ‘maiming’:
A
Mutilating, crippling, or disabling a part of the body so as to deprive the victim of the use of a limb or of one of the senses.
“Depriving another of the use of such of his members as may render him the less able in fighting, either to defend himself or to annoy his adversary”.
17
Q
Define ‘disfigurement’:
A
Disfigurement results from the infliction of external injury that detracts from the personal appearance of a person.
“To before or deface; to mar or alter the figure or appearance of a person”.
18
Q
R v Rapana and Murray
A
The word ‘disfigure’ covers not only permanent damage but also temporary damage.
19
Q
What is ‘the doctrine of transferred malice’?
A
It means the person suffering the harm is not necessarily the intended victim. Where the defendant makes a mistake of identity or accidentally inflicting harm on another, he is still criminally responsible under the ‘Doctrine of Transferred Malice’.
20
Q
What is the difference between injury and GBH?
A
Where harm is at the lower end of the scale of seriousness, it may amount to injury.
Where harm is at the higher end of the scale of seriousness, it may amount to wounding, maiming, or disfigurement depending on the nature of it, or to GBH depending on its seriousness.
21
Q
Define ‘actual bodily harm’:
A
It may be internal or external, and it need not be permanent or dangerous.
Actual bodily harm can include psychiatric injury, if medical evidence confirms an identifiable clinical condition.
22
Q
R v Donovan
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 and trifling.
23
Q
What must be proved when ‘recklessness’ is an element in the offence?
A
- that the defendant consciously and deliberately ran a risk (subject test)
- that 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)
24
Q
R v Harney
A
Recklessness means the conscious and deliberate taking of an unjustified risk. In NZ it involves proof that the consequence complained of could well have happened, together with an intention to continue the course of conduct regardless of the risk.
25
What is S189 CA1961?
189 Injuring with intent
(1) Every one is liable to imprisonment for a term not exceeding 10 years who, with intent to cause grievous bodily harm to any one, injures any person.
(2) Every one is liable to imprisonment for a term not exceeding 5 years who, with intent to injure any one, or with reckless disregard for the safety of others, injures any person.
26
What is the difference between S189 (1) and (2)?
(1) intent to cause GBH
| (2) intent to injure or with reckless disregard
27
What is S191 CA1961?
191 Aggravated wounding or injury
(1) Every one 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 herself 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 herself or of any other person upon the commission or attempted commission of any imprisonable offence—
wounds, maims, disfigures, or causes grievous bodily harm to any person, or stupefies or renders unconscious any person, or by any violent means renders any person incapable of resistance.
(2) Every one is liable to imprisonment for a term not exceeding 7 years who, with any such intent as aforesaid, injures any person.
28
What does aggravate mean?
"to make something worse".
29
Under S191 - aggravated wounding or injuring, what are the three specified intents required to prove?
a) an intent commit or facilitate the commission of any imprisonable offence; or
(b) an intent to avoid the detection of himself or herself or of any other person in the commission of any imprisonable offence; or
(c) an intent to avoid the arrest or facilitate the flight of himself or herself or of any other person upon the commission or attempted commission of any imprisonable offence
30
What is the two fold test? (re R v Tihi)
1. the defendant intended to facilitate the commission of an imprisonable offence (or one of the other intents specified in a, b, or c) and;
2. he or she intended to cause the specified harm, or was reckless as to that risk.
31
R v Tihi
In addition to one of the specified intents outlines in a b or c, it must be shown that the offender either meant to cause the specified harm or foresaw that the actions undertaken by him were likely expose others to the risk of suffering it.
32
What does 'facilitate' mean?
To make possible or to make easy or easier.
Provided he has the necessary intent at the time he causes the harm, it is immaterial whether he actually commits the intended imprisonable offence or not.
Eg. pointing a gun at a lady to submit to being raped.
33
What does 'avoid detection' mean?
To prevent himself or another person from being caught in the act.
34
What does 'facilitate flight' mean?
To enable the offender or offenders to more easily make their escape, or to prevent their capture.
35
What must the prosecution prove for 'facilitate flight'?
An imprisonable offence was actually committed or attempted before a person can be convicted of aggravated wounding while escaping after it.
36
R v Wati
There must be proof of the commission or attempted commission of a crime either by the person committing the assault or by the person whose arrest or flight he intends to avoid or facilitate.
37
What does 'stupefies' mean?
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 a any way which might hinder an intended crime.
It also includes circumstance where the administration of drugs led to dis-inhibition and stimulated uncharacteristic behaviour.
38
What does 'renders unconscious' mean? (and examples)
To 'cause to be' or 'cause to become'. The offenders actions must cause the victim to lose consciousness.
Eg. knocking a person unconscious with a blow to the head, strangling them, or administering a noxious substance.
39
What does 'violence means' mean?
The application of force that physically incapacitates a person, such as tying the victims hands and feet or inflicting debilitating injuries.
40
What does 'rendered incapable of resistance' mean?
A person is rendered incapable of resistance by violent means just as effectual as if they were physically incapable.
Eg. someone intending to rape a victim and presenting a loaded revolver at her head.
41
What is S192 CA1961?
192 Aggravated assault
(1) Every one 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 herself 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 herself or of any other person upon the commission or attempted commission of any imprisonable offence.
(2) Every one 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 or her duty.
42
What are the elements for 'assault'?
- intention to apply or attempt to apply force
- application or attempted application of force, whether directly or indirectly, or
- threat to apply to apply force in circumstances where the victim believes the offender will be able to carry out the threat
43
What elements must be proven under S192(1)?
1. Assault (intent or, application or, threat)
| 2. Intent
44
Explain the intent element needed to be proved under S192(1)?
At the time of the assault, they had the intent to commit an imprisonable offence or help commit an imprisonable offence, or avoid detection or arrest of facilitate their flight or another flight after committing an imprisonable offence.
45
Under S192(1), the elements of 'assault' and 'intent' must be proved. Under S192(2), what is the other aspect of 'intent' that must be proved?
At the time of the assault, s/he had the intent to obstruct the constable, person coming to their aid, or anyone executing a lawful process.
46
What is S198 CA1961?
198 Discharging firearm or doing dangerous act with intent
(1) Every one is liable to imprisonment for a term not exceeding 14 years who, with intent to do grievous bodily harm,—
(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) Every one 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 acts referred to in subsection (1).
47
Under S198 (discharging firearm or doing dangerous act with intent), what are the optional acts for mens rea and actus rea? (3 ea)
Mens rea:
- intent to do GBH
- intent to injure
- reckless disregard for the safety of others
Actus rea:
- discharging a firearm at a person
- delivering explosives
- setting fire to property
48
What is the difference between S198 (1) and (2)?
(1) the offender intends to cause GBH
| (2) he only intends to injure the victim, or acts with disregard for the safety of others
49
R v Pekepo
A reckless discharge of a firearm in the general direction of a passer-by who happens to be hit is not sufficient proof. An intention to shoot that person must be established.
50
Define 'discharge'
To fire or shoot
51
What is the primary difference between a 'firearm' and 'airgun'?
A firearm acts by force of explosive, whereas an airgun acts by force of compressed air or gas.
Firearm:
(a) means anything from which any shot, bullet, missile, or other projectile can be discharged by force of explosive; and
(b) includes—
(i) anything that has been adapted so that it can be used to discharge a shot, bullet, missile, or other projectile by force of explosive; and
(ii) anything which is not for the time being capable of discharging any shot, bullet, missile, or other projectile but which, by its completion or the replacement of any component part or parts or the correction or repair of any defect or defects, would be a firearm within the meaning of paragraph (a) or subparagraph (i); and
(iii) anything (being a firearm within the meaning of paragraph (a) or subparagraph (i)) which is for the time being dismantled or partially dismantled; and
(iv) any specially dangerous airgun
Airgun:
(a) any air rifle; and
(b) any air pistol; and
(c) any weapon from which, by the use of gas or compressed air (and not by force of explosive), any shot, bullet, missile, or other projectile can be discharged
52
What is the definition of an explosive?
Explosive:
(a) means any substance or mixture or combination of substances which in its normal state is capable either of decomposition at such rapid rate as to result in an explosion or of producing a pyrotechnic effect; and
(b) without limiting paragraph (a), includes gunpowder, nitroglycerine, dynamite, gun-cotton, 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 paragraph (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 a ballistic or pyrotechnic effect; but does not include a firearm; and
(d) does not include any firework as defined in section 2 of the Hazardous Substances and New Organisms Act 1996
53
What are two examples of 'injurious substance or device'?
1. anthrax powder
| 2. boiling water
54
Under S198(1)(b) when is the offence complete?
When an explosive or injurious substance or device is sent, delivered, or put in place. However, the substance must have the capacity to explode and cause injury.
55
What are some examples of 'sets fire'?
Often involves burning or charring however it is not necessary that the property is actually set alight; melting, blistering of paint, or significant smoke damage may be sufficient.
56
Define 'property'.
Under S2 CA1961, 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.
57
What is S198A CA1961?
198A Using any firearm against law enforcement officer, etc
(1) Every one 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 constable or a traffic officer or a prison officer so acting.
(2) Every one 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 of any other person.
58
Under S198A CA1961 (using any firearm against a law enforcement officer), what does 'use in any manner whatever' mean?
They include a range of acts that stop short of actual shooting at an officer. It is not necessary that the firearm was presented at the officer or that it be discharged.
59
R v Swain
To deliberately or purposely remove a sawn-off shotgun from a bag after being confronted by or called upon by a police constable amounts to a use of that firearm within the meaning of S198A CA1961
60
Define 'Constable'.
A constable means a police employee who - holds the office of constable and includes a constable who holds any level of position with the NZ Police.
61
What is 'acting in the course if duty' under S198A?
Includes protecting life and property, preventing and detecting crime, apprehending offenders and keeping the peace.
Can include times when the officer is off duty but in circumstances where there is a professional obligation to exercise policing duties.
Does not include an officer on duty acting unlawfully eg. excessive force or trespassing on private property.
62
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.
63
What is S198B CA1961?
198B Commission of crime with firearm
(1) Every one is liable to imprisonment for a term not exceeding 10 years who,—
(a) in committing any imprisonable offence, uses any firearm; or
(b) while committing any imprisonable offence, has any firearm with him or her in circumstances that prima facie show an intention to use it in connection with that imprisonable offence.
64
Under S198B what is included in "uses any firearm"?
Firing, presentin, displaying in a menacing manner.
It does not extend to the use of a firearm as a club.
65
Under S198B, mere possession of the firearm is not sufficient. What else is needed to prove the offence?
There must be accompanying circumstances showing a prima-facie intention to use the firearm in the commission of the imprisonable offence.
66
What is a military style semi-automatic firearm?
For the purposes of the Arms Act 1983, the following firearms are declared to be military style semi-automatic firearms:
(a) a semi-automatic firearm that is capable of being used in combination with a detachable magazine (other than one designed to hold 0.22-inch or less rimfire cartridges) that is capable of holding more than 5 cartridges:
(b) a semi-automatic firearm that is a shotgun and that is capable of being used in combination with a detachable magazine that is capable of holding more than 5 cartridges.
67
What is a pistol?
means any firearm that is designed or adapted to be held and fired with 1 hand; and includes any firearm that is less than 762 millimetres in length.
68
What is a restricted weapon?
means any weapon, whether a firearm or not, declared by the Governor-General, by Order in Council made under section 4, to be a restricted weapon.
69
What is declared as a restricted weapon under schedule to the arms (restricted weapons and special dangerous airguns) order 1984?
1 Anti-tank projectors, and ammunition therefor.
2 Grenade dischargers, grenade launchers, and grenades containing explosives.
3 Incendiary grenades; including the type commonly known as a Molotov cocktail and consisting of—
(a) a container or containers, the only or principal contents of which is an inflammable liquid or mixture; and
(b) a means of ignition of the inflammable substance or mixture, whether that means is a wick, an explosive or other device, a fuse, or a chemical.
4 Machine carbines or guns, submachine carbines or guns, and machine pistols of any kind, including those operated by gas or compressed air.
4A Firearms and airguns that are capable of full automatic fire, excluding airguns that are designed for use in airsoft or paintball sports and are in the same configuration as when they were manufactured.
5 Mines of an explosive nature, of any kind whatsoever.
6 Mortars of military kinds, and ammunition therefor.
7 Rocket launchers and ammunition therefor.
8 Every firearm, 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 either wholly or partially incapable of resistance (other than any device designed and intended solely for any medical, surgical, veterinary, scientific, agricultural, industrial, or other similar lawful purpose).
9 Any gas, substance, material, or thing specially intended or adapted for use in conjunction with any firearm, weapon, or device specified in clause 8.
70
What is a specially dangerous airgun?
specially dangerous airgun means any airgun declared by the Governor-General, by Order in Council made under section 4, to be a specially dangerous airgun
71
Under S66 Arms Act 1983 outlines 'Occupier of premises or driver of vehicle deemed to be in possession of firearm, airgun, pistol, imitation firearm, restricted weapon, prohibited magazine, or explosive found therein' what is it?
For the purposes 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, prohibited magazine, 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, prohibited magazine, or explosive, unless he proves that it was not his property and that it was in the possession of some other person.
72
What is S234 CA1961?
234 Robbery
(1) Robbery is theft accompanied by violence or 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) Every one who commits robbery is liable to imprisonment for a term not exceeding 10 years.
73
Define 'dishonesty':
dishonestly, 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 consent or authority
74
What are the two beliefs needed to prove 'dishonesty'?
1. that the act or omission was, expressly or impliedly, consented to by a person entitled to give consent, or
2. that the act or omission was authorised by a person entitled to authorise it
75
Define 'claim of right':
claim of right, 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
76
To prove the offence 'robbery' there are 4 different 'nature of beliefs'. What are they?
1. belief in proprietary or possessory right in the property.
2. that belief my be around the rights to the property in relation to which the offence is alleged to have been committed.
3. the belief must be held at the time of the conduct alleged to constitute the offence.
4. the belied must actually be held by the defendant
77
R v Skivington
Theft is an elect of robbery, and if the honest belief that a man has a claim of right is a defence to theft, then it negates one of the elements in the offence of robbery, without proof of which the full offence is not made out.
78
R v Lapier
Robbery is complete the instant the property is take, even if possession by the thief is only momentary.
79
What is meant by 'using or dealing with' under robbery?
It 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 wiht the rights of the owner.
80
R v Cox
Possession involves two elements, 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 an intention to exercise possession.
81
What is control?
Control means to exercise authoritative or domination influence over it.
82
Define property
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
83
Define ownership
For the purposes of this Part, 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—
(a) possession or control of the property; or
(b) any interest in the property; or
(c) the right to take possession or control of the property.
84
R v Maihi
It is implicit in 'accompany' that there must be a nexus (connection or link) between the act of stealing and the treat of violence. Both must be present. However they do not have to be contemporaneous.
85
What must be proved under 'accompanied by' in the offence robbery?
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 were used for the purpose of extorting the property, or preventing or overcoming resistance.
86
Peneha v Police
It is sufficient that the actions of the defendant forcibly interfere with personal freedom or amount to forcible powerful violent action or motion producing a very marked or powerful effect tending to cause bodily injury.
87
Define 'threat of violence' under robbery:
The manifestation of an intention to inflict violence unless the money or property be handed over. The treat may be directed or veiled. It may be conveyed by words or conduct, or a combination or both
88
When proving 'threats of violence' under 'robber', what are some other circumstances to consider?
- the relative ages of the parties
- their respective physiques
- their appearance
- their demeanour
- what was said and done by those involved
- the manner and setting in which the incident took place
89
Define 'extort' under robbery:
To obtain by violence, coercion or intimidation or to extract forcibly.
90
Define 'prevent' and 'overcome resistance' under robbery:
Prevent: to keep from happening
| Overcome resistance: to defeat; to prevail over; together the better of in a conflict
91
What is S235 CA1961?
235 Aggravated robbery
Every one 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 grievous bodily harm to any person; or
(b) being together with any other person or persons, robs any person; or
(c) being armed with any offensive weapon or instrument, or any thing appearing to be such a weapon or instrument, robs any other person.
92
Under S235 (ag rob), what is meant by 'immediately before' or 'immediately after'?
It refers to the connection in time between the robbery and the infliction of GBH.
93
DDP v Smith
Bodily harm needs no explanation and grievous means no more and no less than really serious.
94
Under S235 (ag rob), define 'being together with':
The defendant was part of a joint enterprise by two or more persons who were physically present at the robbery.
Each much share an intent to steal using their collective force should that be necessary and each must play some active role in the robbery.
95
R v Joyce
The crown must establish that at least two persons were physically at the time the robbery was committed or the assault occurred.
96
R v Galey
Being together in the context of S235(b) involves two or more persons having the common intention to use they combined force, either in any event or as circumstances might require, directly in the perpetration of the crime.
97
Under S235(c) (ag rob w. weapon) - what is an offensive weapon?
Offensive weapon is defined under S202A CA1961. With relevance to Ag Rob:
SS(4)(a): Any article made or altered for the use for causing bodily injury, or intended by the person having with him for such use.
SS(4)(b): Any article capable of being used for causing bodily injury.
98
Define 'instrument':
any item intended to be used as a weapon or to intimidate and overbore the victim's will to resist.
99
In relation to S235 ag rob) can a thing include a part of a persons body?
No. Cant seize their hand can ya...
100
What is S236 CA1961?
236 Assault with intent to rob
(1) Every one is liable to imprisonment for a term not exceeding 14 years who, with intent to rob any person,—
(a) causes grievous bodily harm 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, assaults that person or any other person.
(2) Every one 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.
101
Define 'assault':
assault means the act of intentionally applying or attempting to apply force to the person of another, directly or indirectly, or threatening by any act or gesture to apply such force to the person of another, if the person making the threat has, or causes the other to believe on reasonable grounds that he or she has, present ability to effect his or her purpose; and to assault has a corresponding meaning.
102
What is S237 & S238 CA1961?
237 Blackmail
(1) Every one 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 any benefit or to cause loss to any other person.
(2) Every one 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.
-----
238 Punishment of blackmail
Every one who commits blackmail is liable to imprisonment for a term not exceeding 14 years.
103
Under S237 (blackmail), you must prove the ID 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 damage to property, or
- endanger the safety of any person with intent to:
- cause the person to whom the threat is made to act in accordance with the will of the person making the threat, and obtain any benefit or to cause loss to any other person
104
What is the statutory defence for S237 (blackmail)?
A belief by the person making the threat that they are entitled to the benefit or to cause the loss is not in itself a defence to a charge under 237(1), unless the threat is, in the circumstances, a reasonable and proper means for effecting his or her purpose.
105
What is S239 CA1961?
239 Demanding with intent to steal, etc
(1) Every one 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) Every one is liable to imprisonment for a term not exceeding 7 years who, with menaces or by any threat, demands any property from any persons with intent to steal it.
106
Under S239 (Demanding with intent to steal, etc), what is meant by 'execute'?
Do what the law requires to give validity to the document. It is not confined to the signing or signing something to thecae of the document.
107
In regards to initial action at the scene of a robbery (etc), what should be done first (list 9)
1. secure the safety of all members f the public and police
2. prevent the crime
3. contain the area of the offence
4. gather evidence from the rime scene and persevere it
5. establish and then eliminate suspects
6. ID the offender
7. search white offender and their premises, confiscating and preserving any evidence
8. establish what, if any case exists for prosecution
9. prepare file for prosecution
108
What is S208 CA1961?
208 Abduction for purposes of marriage or civil union or sexual connection
Every one is liable to imprisonment for a term not exceeding 14 years who unlawfully takes away or detains a person (P) without P’s consent or with P’s consent obtained by fraud or duress,—
(a) with intent to go through a form of marriage or civil union with P; or
(b) with intent to have sexual connection with P; or
(c) with intent to cause P to go through a form of marriage or civil union, or to have sexual connection, with some other person.
109
What must be proved for a conviction under S208 (abduction) CA1961?
1. the defendant took away or detained a person
2. the taking or detention was intentional or deliberate
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
6. the defendant intended to:
a. marry
b. have sexual connection
c. cause the person to marry another person or have sexual connection with another person
110
R v Wellard (taking away)
The essence of the offence of kidnapping is the 'deprivation of liberty coupled wit the carrying away from a place where the victim wants to be'.
111
R v Crossan
Taking away and detaining are seperate and distinct offences. The first consists of taking the victim away, the second of detaining her. The first offence was complete when the prisoner took the woman away against her will. Then, having taken her away, he detained her against her will, and his conduct in detaining her constituted a new and different offence.
112
R v Pryce
Detaining is an active concept meaning to keeping confinement or custody. This is to be contrasted to the passive concept of harbouring or mere failure to hand over.
113
R x Cox
Consent must be full, voluntary, free, and informed.. freely and voluntarily given be a person in a position to form a rational judgment.
114
How must consent be conveyed?
By words or conduct or both
115
What is consent obtained by duress?
Duress my arise from the actual or implied threat of force but can also include other forms of pressure or coercion.
Eg. offender pretends to be an undercover cop and threatens to arrest the prostitutes unless he receives free or discounted sexual services.
116
Mohi
The offence is complete once there has been a period of detention accompanied by the necessary intent, regardless of whether that intent was carried out.
117
R v Waaka
Intent may be formed at any time during the taking away
118
What is S209 CA1961?
209 Kidnapping
Every one 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 hold him or her for ransom or to service; or
(b) with intent to cause him or her to be confined or imprisoned; or
(c) with intent to cause him or her to be sent or taken out of New Zealand.
119
What must be proved for a conviction under S209 (kidnapping) CA1961?
1. the defendant took away or detained a person
2. the taking or detention was intentional or deliberate
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
6. the defendant intended to:
a. hold the person for ransom or to service
b. cause the person to be confirmed or imprisoned
c. cause the person to be sent or taken out of NZ
120
R v M
The crown must prove that the accused intended to take away or detain the complainant and that he or she knew that the complainant was not consenting.
121
What is 'ransom'?
Ransom is. assume of money demanded or paid for the release of a person being held captive.
122
What is 'intent to hold for service'?
Intent to keep the victim as a servant or slave.
123
What is 'intent to cause to be confined'?
It can include restricting their movements within a geographical area but also includes curtailing their activity and exercising control and influence over them.
124
What is S210 CA1961?
210 Abduction of young person under 16
(1) Every one is liable to imprisonment for a term not exceeding 7 years who, with intent to deprive a parent or guardian or other person having the lawful care or charge of a young person of the possession of the young person, unlawfully takes or entices away or detains the young person.
(2) Every one is liable to imprisonment for a term not exceeding 7 years who receives a young person, knowing that he or she has been unlawfully taken or enticed away or detained with intent to deprive a parent or guardian or other person having the lawful care or charge of him or her of the possession of him or her.
(3) For the purposes of subsections (1) and (2),—
(a) it is immaterial whether the young person consents, or is taken or goes or is received at his or her own suggestion; and
(b) it is immaterial whether the offender believes the young person to be of or over the age of 16.
(4) In this section young person means a person under the age of 16 years.
125
What must be proved for a conviction under S210(1)(Abduction of YP under 16) CA1961?
1. the defendant took, enticed or detained a person under the age of 16 years
2. the taking, enticement or detention was deliberate or intentional
3. the taking, enticement or detention was from a person who had lawful care of the young person
4. the defendant knew the other person had lawful care of the young person
5. the taking, enticement or detention was unlawful
6. it was done with intent to deprive a parent, guardian, or other person having lawful car or charge of the young person of possession of the YP
126
What must be proved for a conviction under S210(2)(Abduction of YP under 16) CA1961?
1. the defendant received a person under 16
2. the receiving was deliberate or intentional
3. 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 him or her of the possession of that YP
4. the defendant intended by reason of the receiving to deprive a parent, guardian or other person having lawful care or charge of him or her of the possession of that YP.
127
R v Forrest and Forrest
The best evidence possible in the circumstance should be adduced by the prosecution in proof of the victims age
128
Explain the physical and mental element of 'possession' that must be proved
In R v Cox, there is a physical and mental element that must be proved.
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Physical = actual or potential
Actual = physical custody or control
Potential = Potential to have that thing in their possession, eg at a mates place
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Mental = combination of bth knowledge that the person possesses the item in question, and the intention to possess the item
129
Under S210 (abduction of a YP under 16), does it matter if the YP consents to the taking away?
It is immaterial that the child consents to or even instigates the departure.
130
What is the statutory defence to S210 (abduction of a YP under 16)? Outlined in S210A CA1961
210A People claiming in good faith right to possession of young person under 16
A person who claims in good faith a right to the possession of a young person under the age of 16 years cannot be convicted of an offence against section 209 or section 210 because he or she gets possession of the young person.
131
What is S98C CA1961?
98C Smuggling migrants
(1) Every one is liable to the penalty stated in subsection (3) who arranges for an unauthorised migrant to enter New Zealand or any other State, if he or she—
(a) does so for a material benefit; and
(b) either knows that the person is, or is reckless as to whether the person is, an unauthorised migrant.
(2) Every one is liable to the penalty stated in subsection (3) who arranges for an unauthorised migrant to be brought to New Zealand or any other State, if he or she—
(a) does so for a material benefit; and
(b) either knows that the person is, or is reckless as to whether the person is, an unauthorised migrant; and
(c) either—
(i) knows that the person intends to try to enter the State; or
(ii) is reckless as to whether the person intends to try to enter the State.
(3) The penalty is imprisonment for a term not exceeding 20 years, a fine not exceeding $500,000, or both.
(4) Proceedings may be brought under subsection (1) even if the unauthorised migrant did not in fact enter the State concerned.
(5) Proceedings may be brought under subsection (2) even if the unauthorised migrant was not in fact brought to the State concerned.
132
What is S98D CA1961?
98D Trafficking in persons
(1) Every person is liable to the penalty stated in subsection (2) who arranges, organises, or procures—
(a) the entry of a person into, or the exit of a person out of, New Zealand or any other State—
(i) for the purpose of exploiting or facilitating the exploitation of the person; or
(ii) knowing that the entry or exit of the person involves 1 or more acts of coercion against the person, 1 or more acts of deception of the person, or both; or
(b) the reception, recruitment, transport, transfer, concealment, or harbouring of a person in New Zealand or any other State—
(i) for the purpose of exploiting or facilitating the exploitation of the person; or
(ii) knowing that the reception, recruitment, transport, transfer, concealment, or harbouring of the person involves 1 or more acts of coercion against the person, 1 or more acts of deception of the person, or both.
(2) The penalty is imprisonment for a term not exceeding 20 years, a fine not exceeding $500,000, or both.
(3) Proceedings may be brought under this section even if—
(a) parts of the process by which the person was exploited, coerced, or deceived were accomplished without an act of exploitation, coercion, or deception:
(b) the person exploited, coerced, or deceived—
(i) did not in fact enter or exit the State concerned; or
(ii) was not in fact received, recruited, transported, transferred, concealed, or harboured in the State concerned.
(4) For the purposes of this section, exploit, in relation to a person, means to cause, or to have caused, that person, by an act of deception or coercion, to be involved in—
(a) prostitution or other sexual services:
(b) slavery, practices similar to slavery, servitude, forced labour, or other forced services:
(c) the removal of organs.
133
What does migrant smuggling involve?
Its a person who has freely consented to being brought unto NZ as an illegal immigrant and is not subject to coercion or deception.
134
What does people trafficking involve?
Its a person who is bought into NZ by the means of coercion and/or deception. They are often trafficked un order to exploit them in the destination country eg. as forced labour, for removal of their organs or most commonly, for sexual exploitation.
135
What is the difference between migrant smuggling and people trafficking?
- consent
- the purpose of the travel and movement
- the relationship between the person moved and the people enabling the movement
- violence, intimidation, or coercion
- liberty
- profit
136
Outline the three investigative approaches to people trafficking
1. Reactive investigation: victim led, they or someone on their behalf have approached Police
2. Proactive investigation: Police led. Combo of standard investigation techniques supplemented by intel resources to identify and locate the traffickers
3. Disruptive investigation: Appropriate in circumstances where the level of risk to the victim demands an immediate response, and pro-active or reactive approaches are not practicable options
137
In the context of robbery, violence must involve what?
Violence must involve more than minimal degree of force and more than a technical assails, but need not involve the infliction of bodily injury.
