010 - Violence Flashcards
Liability: wounding with intent to GBH?
188(1)
- with Intent to cause GBH to anyone
- WMD, wounds maims disfigures or causes GBH
- to any person
Liability: wounding with intent to injure?
188(2)
-with Intent injure/reckless disregard
- WMD, wounds maims disfigures or causes GBH
- to any person
What is intent?
Am intention to commit the act (deliberate act) and intention to get a specific result
Case law: R v COLLISTER
Intent can be inferred from the circumstances
- words/actions before during or after the offence
- Surrounding circumstances
- nature of the act itself
What circumstantial evidences eve may assist to prove intent?
(Re assaults)
- prior threats
- premeditation
- weapon use (brought opportunistic)
- number of blows
- degree of force
- body parts hit
- helplessness of victim
Case law: R v TAISALIKA
“Nature blow and gash”
The nature of the blow and gash it produced point strongly to the necessary intent
Case law: DPP v SMITH
DDP - fucked up GBH
Bodily harm needs no explanation and grievous means no more and no less than really serious
Can bodily harm include psychiatric injury?
May include psychiatric injury but does not include mere emotions such as fear distress or panic
Injury should amount to an identifiable
“Owen v residential health management unit”
Case Law: R v WATERS?
Water = wound
Break in the continuity of the skin as evidence by the flow of blood may be internal
Maiming?
Mutilating, crippling or disabling a body part so as to deprive the victim of the use of a limb or a sense with some degree of permanence
Disfigure?
To deform or deface or mar and alter the figure of a person. Need not be permanent
CASE LAW: R v RAPANA AND MURRAY
“RAPANA aka ROPATA DISFIGURE”
Disfigure covers not only permanent damage but also temporary damage
Doctrine of transferred malice?
Not necessary person harmed is victim. harm intended for one and accidentally inflicted on another the offender is still criminally liable
Sec 2 - To injure
Means to cause actual bodily harm
Case law : R MCARTHUR
McArthur-ahhhh the sword hurt me
Bodily harm includes any hurt or injury that interferes with the health/comfort of victim and more than trifling
Define acting recklessly?
Consciously and deliberately taking an unjustifiable risk
2 stage subjective and objective test of recklessness under CAMERON v R?
Subjectively:
actions bring proscribed result
AND
Objectively:
actions objectively unreasonable
Under recklessness is it necessary to recognise the extent of the injury at risk?
No, only foresaw the risk of injury, not necessary to recognise the extent of the injury that actually resulted
Liability: injuring with intent to GBH
189(1)
- with intent to cause GBH to anyone
- injured
- another person
Liability: Injuring with intent to injure
189(2)
- with intent to injure anyone/reckless disregard
- injured
- Any person
Liability: aggravated wounding
191(1) a-b-c
1- with intent to
2- commit/facilitate imprisonable offence OR
Avoid detection of himself/any person in commission of imprisonable offence OR
Avoid arrest or facilitate flight of himself or other upon commission or attempt of imprisonable offence
3- WMD GBH any person
OR stupefies or renders any person unconscious OR
By any violent means renders any person incapable of resistance
Liability: Aggravated injuring
191(2) a-b-c
1- with intent to
2- commit/facilitate imprisonable offence OR
Avoid detection of himself/any person in commission of imprisonable offence OR
Avoid arrest or facilitate flight of himself or other upon commission or attempt of imprisonable offence
3- Injures any person
Case law: R v TIHI
“ Tee hee hee, Aggravated intent”
In addition to a specific intent from paragraph a, b or c the offender meant to cause the specified harm or was reckless to that risk
What does facilitate mean in terms of one of the elements in an aggravated wounding charge?
To make possible or to make easier
Case law: R v WATI
“Waati - whatever prove the crime”
Must be proof of crime or attempt by person committing assault or by person whose arrest or flight they intend to facilitate
What does the term
Violent means include in an aggravated wounding charge?
It may include the threats of violence
Liability: aggravated assault
192 (1) a-b-c
1- assaults another person with intent to
2-
commit/facilitate imprisonable offence OR
Avoid detection of himself/any person in commission of imprisonable offence
OR
Avoid arrest or facilitate flight of himself or other upon commission or attempt of imprisonable offence
Liability: discharge firearm with intent GBH
198 (1)(a)
- with intent to GBH
- discharges any firearm/airgun/similar weapon
- at any person
Case law: R v PEKEPO
“Pew pew intent” 198(1)(a)
A reckless discharge of a firearm in a general direction of a passer by who gets hit is not sufficient an intention to shoot that person must be established
Define a firearm?
Anything from which a shot/bullet/missile/projectile can be discharged by force of explosive. Includes anything capable by adaption, replacement or repair, a dismantled firearm or dangerous airgun
Define an air gun?
Any air rifle or pistol or any weapon which by use of gas/compressed air any shot or bullet or projectile can be discharged
Sec 2- Define property?
Includes any real or personal property
Liability: Using firearm (any manna) against law enforcement officer
198A(1)
1- uses any FA any manner whatever
2- against any constable
3- acting in course of duty
4- knowing that OR being reckless person is a constable
Liability: Uses firearm (any manna) against law enforcement officer - Resists
198A(2)
1- uses any FA any manner whatever
2- with intent resist lawful arrest/detention of himself or other person
Uses in any manner whatever
handling/manipulating to convey implied threat of further use
Case law: R v SWAIN
“Swain Swing a shotty”
removing a sawn off shotgun from bag after confronted by police is a use of FA
Re any manner whatever what is contemplated?
A situation short of actually firing the weapon but includes presenting
Section 198A - Acting in the course of duty meaning?
Includes every lawful acts constable does while on duty and include acts done from professional obligation off duty.
Case law: FISHER v R
Fisher- Matt fisher knows we outside to arrest him -198A(2)
Necessary to prove that the accused knew someone was attempting to arrest or detain him otherwise mens rea of intent to resist arrest fails
Liability: commission of an imprisonable offence with a firearm
198B(1)(a)
1- in committing any imprisonable offence
2- uses any firearm
Liability: commission of imprisonable offence with firearm (Prima facie intent)
198B(1)(b)
1- while committing any imprisonable offence
2- has any FA with him
3- circumstances Prima facie show intention to use it in connection with that imprisonable offence
Has with him - expand the mens rea of this
(Firearms related)
Knowingly has firearm with him
Re a firearm define physical element of possession?
Physics custody or control over the item.
Actual and potential possession
Define actual and potential possession?
Actual= thing in persons physical custody/control
Potential= potential to have the thing in their control
Prima facie?
At first appearance OR
Sufficient to establish intent in absence to contrary
Components that make a F/A a MSSA?
Semi auto and 1 of following:
- folding/telescopic butt
- mag for .22 Rimfire and capable of holding more than 15 rounds
- bayonet lugs
- Flash suppressor
Pistol
Any firearm designed or adapted to be held with one hand included any firearm less than 762mm length
Restricted weapon?
Any weapon declared by Gov General to be so
Section 66 arms act?
Reverse onus
Every person in occupation of land or a driver of a car on which any F/A etc found shall deemed to be in possession of it unless he proves its not his property and was in possession of another
Liability: Robbery
234
1- theft
2- accompanied by violence/threats of violence
3- to any person/property
4- used to extort the property stolen or prevent/overcome resistance to its being stolen
Theft definition
Dishonest taking and absence of claim
Of right and intention that the owner is permanently deprived of the property
Dishonestly definition
Without belief in express or implied consent from person entitled to give such
Claim of right definition?
Belief in proprietary or possessory right
(may be based on ignorance or mistake)
Case law: R v SKIVINGTON
“Skive off theft claim right defence”
Theft is an element of robbery and if the honest belief that a defendant has a claim of right is a defence then it negates an element and the offence is not made out
Taking definition? (When complete)
“Think Richard Mann at mitre 10 - fucken crown”
Complete the moment the item is moved with intent to steal it
Case law: R v LAPIER
Robbery complete instant property taken even if possession is momentary
Case law: R v COX (possession)
Possession involves 2 elements, 1st the physical element is actual or potential physical custody/control, the 2nd the mental element is a combo of knowledge and intention, knowledge substance is in their possession and an intention to exercise possession
Proving possession?
(Firearms)
Proof of a physical element and a mental element
Control - in relation to property
Means to exercise authoritative or dominating influence over it
Case law: R v MAIHI
“MAIHI and MAHI are connected violence nexus”
Must be a nexus between the act of stealing and a threat of violence, both must be present.
Violence at the time of the theft that constitute a robbery, does the violence or threat have to be proximate to the taking?
No, a threat with the necessary intent may have a continuing effect still operating on the victims mind
Case law: PENEHA v POLICE
“Forcibly (peneha/penetrate) interfere freedom”
(Applies to violence part of robbery)
actions of def forcibly interfere with personal freedom, producing a powerful effect tending to cause bodily injury or discomfort
What is a threat of violence?
The manifestation of an intention To inflict violence unless property handed over conveyed by words/conduct and directly or indirectly
Factors the court will consider of conduct that amounts to a threat of violence?
Ages
Physiques
Appearance
Demeanour
Said and done by offenders
Manner and setting
Extort?
Obtain by violence or intimidation
Prevent and overcome?
“Prevent or overcome resistance element of robbery”
Prevent- keep from happening
Overcome- to defeat
Liability: Aggravated robbery (GBH)
235(a)
- robs any person
- at time of/immediately before or after robbery
- causes GBH to any person
Liability: Aggravated robbery (2G4)
235(b)
- being together with any other person/s
- robs any person
Liability: Aggravated robbery (weapon)
235(c)
- being armed with any offensive weapon/thing appearing to be such weapon
- robs any person
Case law: R v JOYCE
“Joyce = joint 2 or more ppl”
The crown must establish that 2 or more persons were physically present at time of robbery or assault
Case law: R v GALEY
“Donald GALEY big tough guy together with”
2 or more persons having the intent to use their combined force to commit the offence
Liability: assault with intent to rob (GBH)
236(1)(a)
- with intent to rob any person
- causes GBH to that person or another
Liability: assault with intent to rob (weapon)
236(1)(b)
- with intent to rob any person
- being armed with any offensive weapon
- assaults that person or another
Liability: assault with intent to rob (2G4)
236(1)(c)
- with intent to rob any person
- being together with any other person
- assaults that person
Assault def?
Intentionally or attempting to apply force directly or indirectly to a person of another
Liability: blackmail
237(1)(a)(b)
- threatens expressly or by implication
- to make any accusation against any person OR to disclose something OR cause serious damage to property/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 person making threat AND
- to obtain any benefit or cause loss to another
Disclosure definition? (Blackmail)
Info that would cause serious embarrassment or emotional distress
Obtain definition? (Blackmail)
To obtain or retain for himself or another
Pecuniary advantage? (Blackmail)
Enhancing a persons financial position
Benefit- what does this include under 237 for a blackmail charge or a 239 charge?
Any benefit, pecuniary advantage, privilege, property, service or valuable consideration
Privilege? (Blackmail)
Special right or advantage
Valuable consideration?
Money or Moneys worth
Statutory defence to blackmail?
237(2)
Def believed they were entitled to obtain benefit and objectively viewed the threat made was reasonable and proper for obtaining the benefit
Liability: Demanding with intent to steal?
239(1)
- W/o claim of right
- by force or 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
“Liability: Demands with menace?
239(2)
- with menaces or by threat
- demands any property from any persons
- with intent to steal it
Document definition?
A thing which provides evidence or info and serves as a record
Liability: Abduction
208 (a) or (b) or (c)
-unlawfully
- takes away or detains
- a person
- without persons consent or with consent obtained by fraud or duress
- with intent to
a) go through marriage with person
b) to have sexual connection with person
c) cause person go through marriage or sexual connection with some other person
Unlawfully? (Kidnap definition)
w/o lawful justification authority or excuse
Taking away?
Physically removed from one place to another
Case law: R v WELLARD
WELLARD = essence
The essence of kidnapping is the deprivation of liberty coupled with carrying the victim away from where they want to be
Case law: R v CROSSAN
(Kidnaps)
CROOOOOS= seperate and distinct
Taking away and detaining are seperate and distinct offences. The 1st consists of taking victim away the 2nd of detaining her
Detains def?
An active concept to impose a constraint/restraint on person
Case law: R v PRYCE
“Price of custody”
Detaining is an active concept to keep in confinement or custody
Case law: R v COX
(Consent)
Consent must be full free voluntary and informed, greet and voluntarily given by a person in a position to form a rational judgement
Case law: R v MOHI
MOHI and MAHI = work complete
Offence complete once period detention or a taking accompanied by necessary intent
Case law: R v WAAKA
“WAAKA = intent anytime”
Intent may be formed at any time during the taking away
Liability: Kidnapping
209 (a/b/c)
1- unlawfully
2- takes away/detains
3- a person
4- without their consent or obtained by fraud/duress
5- with intent to
a) Hold for ransom
b) Cause be confined/imprisoned
c) Cause taken or sent out of nz
Case law: R v M
“Intent take/no consent”
(Kidnapping)
Must prove intended to take or detain and knew complainant not consenting
Ransom?
Sum of money demanded/paid for release of person held captive
Confining or confined?
curtail movement and exercise control over them
Imprisoned?
Put in prison, Has a narrower meaning than confine
Liability: abduction young person
210(1)
1- with intent deprive parent of the possession of a young person
2- unlawfully
3- takes/entices/detains
4- The young person
Liability: receiving a young person
210(2)
- receives a young person
- knowing they have been unlawfully taken/enticed/detained
- with intent to deprive a parent of possession of them
Case law: R v Forrest and Forrest
Crown must adduce the best evidence possible in order to prove a victims age
Is consent a defence to any kidnap or abduction charge for a person under 16?
Immaterial whether a young person consents
Smuggling penalty?
20 years
Is attorney general authorisation required to charge for smuggling or trafficking?
Yes
3 investigative approaches to trafficking?
Reactive - victim led
Proactive - police led
Disruptive - demands immediate response
List some Differences between migrant smuggling and trafficking offences?
Consent
Purpose of travel
Relationships between offender/vic
Violence/intimidation/coercion
Liberty
Profit
CAMERON v R
Recklessness
Recognising real possibility actions would bring a proscribed result and actions were unreasonable
Case law: R v CROSSAN
(Agg wound)
“Crooooos”
Incapable resistance includes powerlessness of will + a physical inability
Consent definition?
Persons conscious and voluntary Gary agreement to something proposed or desired by another
“A persons hand or fingers are not a thing” relates to what case law?
R v BENTHAM
