Flashcards in Violence SA Deck (39):
What was found in R v TAISALIKA
The nature of the blow and the gash which it produced to the complainants head would point strongly to the presence of the necessary intent.
Taisalika argued unsuccessfully that he had been so intoxicated he could not remember the incident, therefore he could not have the necessary intent. The court held that loss of memory of past events is not the same as lack of intent at the time.
What is the difference between s188(1) and s188(2), wounding with intent?
The offenders intent
s191, name the three intents
- intent to commit or facilitate the commission of any imprisonable offence.
- intent to avoid detection of himself or any other person in the commission of any imprisonable offence.
- intent to avoid arrest or facilitate flight of himself or any other person in the commission or attempted commission of any imprisonable offence.
What was held in R v CROSSAN in relation to section 191?
Incapable of resistance includes a powerlessness of the will as well as a physical incapacity.
The term violent means is not limited to physical violence and ,may include threats of violence depending on the circumstances.
198(1), Discharging a firearm with intent to do GBH sets out three offences. Name the three offences
Discharging any firearm, airgun or similar weapon at any person.
Send or delivers, or puts in any place, any explosive or injurious substance or device.
Sets fire to any property.
Does section 188 specify the manner in which the harm occurs?
There is no reference to the use of violence and it is therefore not necessary to prove an assault in most cases.
What was held in R v SKIVINGTON?
Larceny or theft is an element of Robbery, and if the honest belief that a man has a claim of right is a defense to larceny, then it negates one of the elements in the offence of Robbery, without proof of which the full offence is not made out.
What factors elevate the offence of Robbery to Aggravated Robbery?
(a) At the time of immediately before or after "Caused GBH to any person".
(b) Being together with any other person robs any person.
(c) Being armed with any offensive weapon or instrument or anything appearing to be such a weapon robs any person.
Define 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 offense 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 offense is alleged to have been committed.
John waits down the road as a lookout while Bill runs in and uses violence to steal cigarettes. Why is it not aggravated Robbery?
Being together with - 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 time of the Robbery. In this case they were not physically present together at the time of the Robbery. They are both guilty of Robbery.
Can a finger up the jersey pretending to be a gun be defined as an instrument or an item appearing to be an offensive weapon?
Refer to case law.
A "thing" does not include a part of the persons body
In R v BENTHAM the defendant broke into a house where the victim was asleep in bed and put his hand under his jacket, pushing the material out to give the impression he had a gun. He threatened to shoot the victim, who handed over money as a consequence of the threat. The House of Lords held that the term "any thing" did not include the defendants unsevered hand.
In New Zealand following Williams v R the court confirmed R v BENTHAM.
A person using his finger to simulate a firearm is not armed with a thing and does not commit aggravated Robbery.
What was held in R v CROSSAN with regards to taking away and detaining?
Taking away and detaining are separate and distinct offences. The first consists of taking the [the victim] away; the second of detaining them.
The first offence was complete when the prisoner took the woman 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.
Define consent set out in R v COX
Consent must be fill, voluntary, free and informed.... freely and voluntarily given by a person in a position to form rational judgement.
List the three intents defined under kidnapping (section 209)
(a) With intent to hold him or her for ransom or to service.
(b) With intent to cause him or her to be imprisoned or confined
(c) With intent to cause him or her to be sent or taken out of New Zealand
For a conviction under s210(1) the Crown must prove what?
The defendant took, enticed or detained a person under 16 years;
- The taking, enticement or detention was deliberate or intentional;
- The taking, enticement or detention was from a person who had lawful care of the young person;
- The defendant knew the other person had lawful care of the young person;
- The taking, enticement or detention was 'unlawful' and
- It was done with intent to deprive a parent, guardian or other person having lawful care or charge of the young person of possession of that young person.
Can a young person consent to being taken away for the purpose of section 209 and 210.
They cannot consent to being taken away.
Section 210(3) CA 61
It is immaterial whether the offender believes the young person consents.
What is the key difference between migrant smuggling and people trafficking?
Migrant smuggling involves a person who has freely consented to being brought into New Zealand as an illegal immigrant and is not subjected to coercion or deception.
People trafficking involves a person who is brought into New Zealand by means of coercion and/or deception. People are often trafficked in order to exploit them in the destination country, e.g as forced labour, for removal of their organs or most commonly, for sexual exploitation.
The investigative approach options for this crime type fall into three categories. What are they?
Reactive Investigation - Victim lead after approach to Police.
Proactive Investigation - Police led supplemented by intelligence
Disruption Investigation - level or risk to victim demands immediate response.
What is the penalty for trafficking people by means of coercion or deception?
20 years imprisonment or fine not exceeding $500000 or both
Do you need approval from the Attorney General to prosecute for offences under sections 98C and 98D CA 61?
Yes, but you do not need approval to arrest and oppose bail
What was held in R v WATERS
A breaking of the skin would be commonly regarded as a characteristic of a wound. The breaking of the skin will be normally evidenced by a flow of blood and, in its occurrence at the sight of the blow or impact, the wound will more often than not be external. But there are those cases where the bleeding which evidences the separation of tissues may be internal.
Despite a prolonged assault the only evidence of harm was a bleeding nose, which was held to be an injury rather than a wound.
What was held in R v RAPANA and MURRAY
The word 'disfigure' covers not only permanent damage but also temporary damage.
The defendant tattooed red marks on the victims face, which faded and disappeared by the time of the trail.
What was held in R v HARNEY
Recklessness is the conscious and deliberate taking of an unjustified risk. In New Zealand it involves proof that the consequences complained of could well happen, together with an intention to continue the course of conduct regardless or risk
The defendant was convicted of murder after stabbing the victim in the stomach. The defendant argued unsuccessfully he had been aiming for the victims leg.
What was held in 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
Wati was acquitted on a riot charge and therefor it was held he could not be guilty of aggravated assault with the aggravating feature of avoiding arrest for rioting.
Section 198(2) CA 61
Penalty and ingredients
- with intent to injure or with reckless disregard for the safety of others
- any of the offences of 198(1) (a) or (b) or (c)
Section 198A(2) CA 61
Penalty and ingredients
- Everyone who
- Uses any firearm in any matter whatever
- with intent to resist the lawful arrest or detention of himself or herself or any other person
What was held in R v SWAIN
To deliberately or purposely remove a sawn-off shotgun from a bag after being confronted or called upon by a Police Constable amounts to a use of that firearm within the meaning of s198A CA 61.
Section 198B(1)(b) CA 61
Penalty and ingredients
- 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 offence
Military style semi automatic
Semi automatic firearm having one of the following features:
- folding or telescopic butt
- 0.22 magazine that holds more than 15
- any other magazine with more than 7 bullets
- bayonet lugs
- flash suppresor
- otherwise declared under section 74A of AA 83
- less than 762 millimeters, and;
- designed or adapted to be held with one hand
Declared by the Governor General under section 4 AA 83
What was held in Peneha v Police
It is sufficient that "the actions of the defendant forcibly interfere with the 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.
The defendant grabbed a woman's hand bag. The woman's hand was twisted and pulled to the point it hurt.
The court held this was sufficient violence.
Penalty for Blackmail
What was held in R V WAAKA
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 this section.
What was held in 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.
What was held in R v FISHER
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
Defendant fired several shots from inside building but refused to come out to AOS.
No evidence of attempt of arrest
Five phase investigation of blackmail
Initial report phase.
Mobilisation phase - O/C Investigations - develop startergy and resources.
Consolidation phase - Strategies and processes are set up.
Investigation and Operational phase - negotiation - payment - intervention / arrest.
Reactive phase *- Interview Suspect - charge
Statutory defense of kidnapping a child
Section 210A CA 61
- Good faith right to possession of young person