Case Law Flashcards
R v Koroheke
Genitalia
The genitalia comprise the reproduction organs,
interior and exterior …
R v Cox
Consent
Consent must be “full, voluntary, free and informed
… freely and voluntarily given by a person in a
position to form a rational judgment.”
R v Gutuama
Consent
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”.
R v Forrest and Forrest
Proving Age
“The best evidence possible in the circumstances
should be adduced by the prosecution in proof of
[the victim’s] age.”
R v Court
Indecency
Indecency means “conduct that right-thinking
people will consider an affront to the sexual
modesty of [the complainant]”.
R v Dunn
Indecency
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.
R v Leeson
Indecent Assault
“The definition of ‘indecent assault’ … is an assault
accompanied with circumstances of indecency …”
R v Norris
Indecent Assault - Defence
If a person who is charged with indecent assault is
able to establish that they honestly believed that the
complainant was consenting, they are entitled to be
acquitted even though the grounds of his belief
were unreasonable.
R v Taisalika
Intent (Serious Assault)
The nature of the blow and the gash which it
produced point strongly to the presence of the
necessary intent.
R v Collister
Intent
Circumstantial evidence from which an offender’s
intent may be inferred can include:
• the offender’s actions and words before,
during and after the event
• the surrounding circumstances
• the nature of the act itself
DPP V SMITH
GBH
‘Bodily harm’ needs no explanation and ‘grievous’
means no more and no less than ‘really serious’.
R v Waters
Wound
A wound is a ‘breaking of the skin evidenced by the
flow of blood. May be internal or external.
R v Rapana and Murray
Disfigures
Disfigure covers not only permanent damage but
also temporary damage
R V MCARTHUR
Injures
“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.
Cameron v R
Recklessness
Recklessness is established if:
(a) the defendant recognised that there was a real
possibility that:
(i) his or her actions would bring about the
prescribed result; and/or
(ii) that the proscribed circumstances existed; and
(b) having regard to that risk those actions were
unreasonable
R v Tipple
Recklessness
Recklessness 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”.
R v Wati
Aggravated Wounding
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
R v Tihi
Aggravated Wounding
In addition to one of the specific intents outlined in
paragraphs (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.
R v Sturm
Stupefy
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.
R v Crossan
Incapable of Resistance
Taking away and detaining are “separate and
distinct offences”.
R v Wellard
Kidnapping (Takes Away)
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”.
R v Pryce
Kidnapping (Detains)
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.
R v Mohi
Kidnapping/Abduction Offence complete
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.
R v Chartrand
Abduction (Young person)
“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”.
R v Cox
Possession
Possession involves two… elements. The first, often
called the physical element, is actual or potential
physical custody or control. The second, 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… and an intention to exercise
possession
R v Misic
Document
“Essentially a document is a thing which provides
evidence or information or serves as a record.”
AP Simester and WJ Brookbanks
Guilty knowledge
knowing means “knowing or correctly believing”.
The defendant may believe something wrongly, but
cannot ‘know’ something that is false”.
Hayes v R
Uses a document (attempts)
“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 to the ultimate
obtaining of a pecuniary advantage, which is not a
necessary ingredient of the offence. Because the use
does not have to be successful it may be difficult to
draw a clear line between use and attempted use.”
R v Cara
Service
A pecuniary advantage is “anything that enhances
the accused’s financial position. It is that
enhancement which constitutes the element of
advantage”
Hayes v R
Valuable consideration
A valuable consideration is “anything capable of
being valuable consideration, whether of a
monetary kind or of any other kind; in short, money
or money’s worth”.
R v Lapier
Robbery complete
Robbery is complete the instant the property is
taken, even if possession by the thief is only
momentary.
R v Skivington
Claim of right – Defence to robbery
Defence to theft (claim of right) is a defence to
Robbery
R v Peat
Robbery complete
The immediate return of goods by the robber does
not purge the offence
R v Maihi
Robbery nexus
“It is implicit in ‘accompany’ that 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 …”
Peneha v Police
Violence – Robbery
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”.
R v Broughton
Threat of violence - Robbery
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.”
R v Pacholko
Threat of violence - Robbery
The actual presence or absence of fear on the part of
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’
R v Wells
To any person - Robbery
There is no requirement that the harm be inflicted
on the victim of the robbery, thus infliction of harm
to a person seeking to prevent the escape of the
offender would come within the section.
R v Joyce
Together with – Robbery
“The Crown must establish that at least two
persons were physically present at the time the
robbery was committed or the assault occurred.”
R v Galey
Together with – Robbery
“Being together” in the context of section 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
the perpetration of the crime.
R v Bentham
Armed with – Offensive weapon
“What is possessed must under the definition be a
thing. A person’s hand or fingers are not a thing.
R v Morley
Intent to deceive – Deception
An intention to deceive requires that the deception
is practiced in order to deceive the affected party.
Purposeful intent is necessary and must exist at the
time of the deception
Simester & Brookbanks,
Debt or liability
The debt or liability must be legally enforceable. This
means that if the contract is void or illegal there will
be no offence
Simester & Brookbanks,
thing capable of being used to derive a pecuniary advantage
the ‘thing’ must be tangible and must be capable of
being used to derive a pecuniary advantage.
Morley v R
Cause loss
“the loss alleged by the victim must have been
induced by, or caused in reliance, upon the
deception. But the deception need not be the only
operative factor, so long as it played a material part
in occasioning the loss.”
R V Archer
Damage to property
Property may be damaged if it suffers permanent or
temporary physical harm or permanent or
temporary impairment of its use or value.
R v Wilson
Interest in property
Tenancy of a property constitutes an interest in it.
Saxton v Police
Imports (drug dealing)
To import includes “to introduce or bring in from
abroad or to cause to be brought in from a foreign
country”.
R v Hancox
Imports (drug dealing)
“Importation“ involves active conduct. It does not
cease as the aircraft or vessel enters New Zealand
territorial limits. The process of importation exists
from the time the goods enter New Zealand until
they reach their immediate destination or have
ceased to be under the control of the appropriate
authorities and have become available to the
consignee or addressee”.
R v Strawbridge
Guilty Knowledge
It is not necessary for the Crown to establish
knowledge on the part of the accused. In the absence
of evidence to the contrary knowledge on her part will
be presumed, but if there is some evidence that the
accused honestly believed on reasonable grounds that
her act was innocent, then she is entitled to be
acquitted unless the jury is satisfied beyond
reasonable doubt that this was not so.
Police v Emerali
Usable Quantity (drug dealing)
“…the serious offence of … possessing a narcotic
does not extend to some minute and useless residue
of the substance.”
R v Rua
Produce/Manufacture (drug dealing)
The words “produce” or “manufacture” in s 6(1)(b)
broadly cover the creation of controlled drugs by
some form of process which changes the original
substances into a particular controlled drug.
R v Donald
Supply (drug dealing)
Supply includes the distribution of jointly owned
property between its co-owners.
R v Knox
Intent to supply (drug dealing)
“a person who is in unlawful possession of a
controlled drug, which has been deposited for
safekeeping, has the intent to supply that drug to
another if his intention is to return the drug to the
person who deposited it with him”.
R v Wildbore
Intent to supply (drug dealing)
a “passive custodian” who relinquishes custody of a
drug to meet the needs of another, has the
necessary intent for supply.
R v During
Offer to supply (drug dealing)
“[An offer is] an intimation by the person charged
to another that he is ready on request to supply to
that other, drugs of a kind prohibited by the statute.”
R v Brown
Offer to supply (drug dealing)
offering to supply a controlled drug can arise in a
variety of ways including where the defendant:
• offers to supply a drug that he has on hand
• offers to supply a drug that will be procured
at some future date
• offers to supply a drug that he mistakenly
believes he can supply
• offers to supply a drug deceitfully, knowing
he will not supply that drug.
R v Harpur
Attempts
In assessing the conduct there must be a full evaluation in terms of time place and circumstances. What remains to be done is always relevant but not determinative. The court is permitted to focus more on the quality of the defendants acts & the time place and circumstances in which they occurred & less on abstract tests of preparation and proximity
R v Betts & Ridley
An offence where no violence is contemplated and the principal offender in carrying out the common aim uses
violence, a secondary offender taking no physical part in it would not be held liable for the violence used.
