CASE LAW Flashcards
GENITALIA
R V KOROHEKE
- Reproductive organs (interior and exterior)
- Includes the vulva and labia (interior and exterior) at the opening of the vagina
CONSENT
R V COX
- Must be full, voluntary, free and informed
- Freely and voluntarily given by a person in a position to form a rational judgement
CONSENT
R V GUTUAMA
- Under the objective test the Crown must prove that “no reasonable person in the accused’s shoes could have thought that [the complainant] was consenting”
Gut = gut feeling = reasonable persons gut feeling they were consenting
PROVING AGE
R V FORREST AND FORREST
- “The best evidence possible in the circumstances should be adduced by the prosecution in proof of [the Victims} age”
Adduced = adding proof to support an argument Forrest = Having a forrest adds value = adds proof + A forrest's age
INDECENCY
R V COURT
- “Conduct that right-thinking people will consider an affront to sexual modesty of [the complainant]”
INDECENCY
R V DUNN
- Indecency must be judged in light of the time, place and circumstances.
- It must be something more than trifling and be sufficient to ‘warrant the sanction of the law’
INDECENT ACT
R V LESSON
- “Is an assault accompanied with circumstances of indecency”
Lesson = lesson learnt
INDECENT ASSUALT - DEFENCE
R V NORRIS
- If the person charged is able to establish that they honestly believed that the complaint was consenting, they are entitled to be acquitted even though the grounds of his belief were unreasonable
INTENT (SERIOUS ASSAULTS)
R V TAISALIKA
- The nature of the blow and the gash which it produced point strongly to the presence of the necessary intent
INTENT
R V COLLISTER
Circumstanial evidence from which an offenders intent may be inferred can include:
- The offenders actions or words during and after the event
- The surrounding circumstances
-The nature of the act itself
Collister = circumstantial
WOUNDS
R V WATERS
- The breaking of the skin evidenced by the flow of blood (internal or external)
Blood flow = water
GRIEVOUS BODILY HARM
DDP V SMITH
- Bodily harm needs to explanation
- Grievous means no more and no less than really serious
WOUND
R V WATERS
- Wound is breaking of the skin evidenced by the flow of blood
- May be internal or external
Water =Flow = Flow of blood
DISFIGURES
R V Rupana and Murray
- Disfigures covers not only permanent damage but also temporary damage
INJURES
R V MCARTHUR
- 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 be more than transitory and trifling.
RECKLESSNESS
CAMERON V R
Recklessness is established if:
A. the defendant recognises that there was a real possibility that:
- His or her actions would bring about the proscribed result and/or
-that the proscribed circumstances existed and
B. Having regard to that risk hose actions were unreasonable.
RECKLESSNESS
R V TRIPPLE
- Requires that the offender know of or have a conscious appreciation of the relevant risk, and it may be said that it requires “a deliberate decision to run the risk”.
AGGRAVATED WOUNDING
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
AGGRAVATED WOUNDING
R V TIHI
- In addition to specific intents of A-C
- It must be shown that the offender meant to cause the specified harm or foresaw that the actions undertaken by him were likely to expose others to the risk of suffering it.
STUPEFY
R V STURM
- To stupefy means to cause an effect on the mind or nervous system of a person which really seriously interferes with that persons mental or physical ability to act in any way which might hinder an intended crime.
INCAPABLE OF RESISTENCE
R V CROSSAN
- Incapable of resistance includes a powerlessness of the will as well as a physical incapacity.
- Taking away and detaining are “seperate and distinct offences”
KIDNAPPING (TAKES AWAY)
R V WELLARD
- The essence of the offence of kidnapping is the “deprivation of liberty coupled with carrying away from the place where the Victim wants to be”
KIDNAPPING
R V PRYCE
- 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
KIDNAPPING/ABDUCTION OFFENCE COMPLETE
R MOHI
- The offence is committed at the time of taking away, so long as there is, at that moment, the necessary intent.
- It has never been regarded as necessary that the crown should show the intent was carried out
ABDUCTION (YOUNG PERSON)
R V CHARTRAND
-“Whether the defendant may have had an innocent motive, or intended to interfere with possession for a very short period of time is beside the point”
ABDUCTION (YOUNG PERSON)
R V CHARTRAND
-“Whether the defendant may have had an innocent motive, or intended to interfere with possession for a very short period of time is beside the point”
POSSESSION
R V COX
-Possession involves 2 elements
1. Often called the physical element, is actual or potential physical custody or control.
2. Often described as the mental element is a combination of knowledge and intention.
Knowledge in the sense of an awareness by the accused that the substance is in his possession
An intention to exercise possession
DOCUMENT
R V MISIC
-“Essentially a document is a thing which provides evidence or information or serves as a record”
GUILTY KNOWLEDGE
AP SIMESTER AND WJ BROOKBANKS
- “Knowing or correctly believing”
- The Defendant may believe something wrongly but cannot know something that is false
USES A DOCUMENT (ATTEMPTS)
HAYES V R
- “An unsuccessful use of a document is as much use as a successful one. An unsuccessful use must not be equated conceptually with an attempted one.
- The concept of attempt relates to use not the ultimate obtaining of a pecuniary advantage which is not a necessary ingredient of the offence.
- Use does not have to be successful it may be difficult to draw a clear line between use and attempted use.
SERVICE
R V CARA
- “service is limited to financial or economic value and excludes privileges or benefits”
PECUNIARY ADVANTAGE
HAYES V R
- A pecuniary advantage is “anything that enhances the accused financial position.
- It is that enhancement which constitutes the element of advantage.
VALUABLE CONSIDERATION
HAYES V R
- A valuable consideration is ‘anything capable of being valuable consideration whether of a monetary kind or of any kind. Money or money’s worth
ROBBERY COMPLETE
R V LAPIER
- Robbery is complete the instant the property is taken even if possession by the thief is only momentary.
CLAIM OF RIGHT - ROBBERY DEFENCE
R V SKIVINGTON
- Defence to theft (claim of right) is a defence to Robbery
ROBBERY COMPLETE
R V PEAT
- The immediate return of goods by the robber does not purge the offence
ROBBERY NEXUS
R V MAIHI
- In ‘accompany’ there must be a nexus (connection or link) between the act of stealing and a 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
VIOLENCE - ROBBERY
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.
VIOLENCE - ROBBERY
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.
THREAT OF VIOLENCE- ROBBERY
R V BROUGHTON
- A threat of violence is the manifestation of an intention to inflict violence unless the money or property be handed over
- The threat may be direct or veiled.
- It may be conveyed by words or conduct, or a combination of both
THREAT OF VIOLENCE - ROBBERY
R V PACHOLKO
- The actual presence or absence of fear on the part f the complainant is not the yardstick.
- It is the conduct of the accused which has to be assessed rather than ‘the strength of the nerves of the person threatened’
THREAT OF VIOLENCE - ROBBERY
R V PACHOLKO
- The actual presence or absence of fear on the part f the complainant is not the yardstick.
- It is the conduct of the accused which has to be assessed rather than ‘the strength of the nerves of the person threatened’
TO ANY PERSON - ROBBERY
R V WELLS
- There is no requirement that the harm be inflicted on the Victim of the robbery
- Thus infliction of harm to a person seeking to precent the escape of the offender would come within the section
TOGETHER WITH - ROBBERY
R V JOYCE
- The crown must establish that at least two persons were physically present at the time the robbery was committed or the assault occurred.
