Case Law Flashcards
R v Crossan [1943]
Taking away and detaining are “separate 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”.
Kidnapping
R v Wellard [1978]
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”.
Detaining
R v Pryce [1972]
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 Cox 7/11/96
Consent must be “full, voluntary, free and informed … freely and voluntarily given
by a person in a position to form a rational judgment”..
Taking Away
R v Mohi [1982]
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 Cox [1990] (Regarding 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 Forrest and Forrest [1970]
The best evidence possible in the circumstances should be adduced by the
prosecution in proof of [the victim’s] age”.
Further notes on R v Forrest and Forrest
In R v Forrest & Forrest13 two men were charged with having sexual
intercourse with a 14-year-old girl who had run away from Child Welfare
custody. At trial the girl produced her birth certificate and gave evidence
herself that she was the person named in the certificate. The men successfully
appealed their convictions on the grounds that the Crown had not adequately
proved the girl’s age.
R v Crooks [1981]
K M A K O B I T S O H N R D T T P A W A P T T R O. M S O T I I T O I I.
Knowledge means actual knowledge or belief in the sense of having no real doubt
that the person assisted was a party to the relevant offence. Mere suspicion of
their involvement in the offence is insufficient.
Receiving
R v Briggs 17/03/09
As with a receiving charge under s246(1),
knowledge may also be inferred
from wilful blindness or a deliberate abstention
from making inquiries that would
confirm
the suspected truth.
Accessory
R v Mane [1989]
T B C A A T A D B T P M B A T C O T O.
To be considered an accessory
the acts done by the person must be
after the completion of the offence.
Recklessness
R v Harney [1987]
“R M T C A D T O A U R. I N Z I I P T T C C O C W H, T W A I T C T C O C R O R.
“Recklessness means the conscious and deliberate taking
of an unjustified risk.
In New Zealand it involves
proof that the consequence complained of
could well happen,
together with an intention to continue the course of conduct
regardless of
risk.”
Property
R v Archer [2009]
Property may be damaged if
it suffers permanent or temporary physical harm
or
permanent or temporary impairment of its
use or value.
Loss
R v Morley [2009]
“L I A B T E T W T C P P T T O H B D O I”
“Loss … is assessed by the extent
to which the complainant’s position prior to the
[offence]
has been diminished or impaired.”
Conduct
R v Harpur [2010]
T C M H R T T C V C U T T P W T C I Q S … T D C M B C I I E. C H M R T B D… I A R, T N D.
“[The Court may] have regard to the conduct viewed cumulatively
up to the point when the conduct in question stops …
the defendant’s conduct [may] be
considered in its entirety.
Considering how much remains to be done …
is always
relevant, though not determinative.”
R v Ring [1892]
In this case the offender’s intent was to steal property by putting his hand into the
pocket of the victim. Unbeknown to the offender the pocket was empty. Despite
this he was able to be convicted of attempted theft, because the intent to steal
whatever property might have been discovered inside the pocket was present in
his mind and demonstrated by his actions. The remaining elements were also
satisfied.
Higgins v Police [1984]
Where plants being cultivated as cannabis are not in fact cannabis it is physically,
not legally, impossible to cultivate such prohibited plants. Accordingly, it is possible
to commit the offence of attempting to cultivate cannabis.
Police v Jay [1974]
A man bought hedge clippings believing they were cannabis.
Stolen Property
R v Donnelly [1970]
W S P H B R T T O O L T T A S P H B A B A P, I I N A O T S R I, E T T R M K T T P H P B S O D O.
Where stolen property has been returned to the owner
or legal title to any such
property has been acquired by any person,
it is not an offence to subsequently
receive it,
Even though the receiver may know that the property had previously
been stolen
or dishonestly obtained.
Retail Premise
Police v Barwell [6/7/06]
A person who enters retail premises whilst those premises are open to the
public intending to commit a crime in the building does not do so without
authority, in terms of s231, Crimes Act 1961.
R v Collins [1972]
There cannot be a conviction for entering a premises ‘as a trespasser’
unless the person entering does so knowing he is a trespasser and
deliberately enters or is reckless whether or not he is entering the premises
of another without the other party’s consent.
Weapon
Police v Pitman
The word “weapon” carries the meaning
of something used to inflict bodily injury
…
also any other item
which the accused intended to use to inflict harm
should the
need arise …
Bodily injury need not be limited to direct physical injury and can
include bodily harm arising as a result of shock produced by the weapon.
Firearm
R v Kelt [1977]
Having a firearm “with him”
requires “a very close physical link
and a degree of
immediate control over the weapon
by the man alleged to have the firearm with him”.
Weapon Usage
R v Steele [2007]
“To use” may be limited to the offender
revealing by words or conduct
the actual
presence of or immediate availability of the item
so long as the accused have the
weapon in their physical possession and readily available.
Conspiracy intention
Mulachy v R [1868]
“A conspiracy consists not merely in the intention of two or more,
but in the
agreement of two or more
to do an unlawful act,
or to do a lawful act by unlawful
means.
So long as such a design rests in intention only it is not indictable.
When
two agree to carry it (the intended offence) into effect,
the very plot is an act in
itself ….”
Conspiracy
R v Sanders [1984]
A C D N E W T M O T A. T C A C I T O A T I E U I I E B C O I P O A O I A O M B W A A D.
“A conspiracy does not end
with the making of the agreement.
The conspiratorial
agreement continues in the operation
and therefore in existence
until it is ended by
completion of its performance or abandonment
or in any other manner by which
agreements are discharged.”
Conspiracy
R v White [1945]
Where you can prove that a suspect conspired with other parties (one or more
people) whose identities are unknown, that suspect can still be convicted even if
the identity of the other parties is never established and remains unknown.
Hayes v R [2008] (Regarding Pecuniary Advantage)
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 [2008] (Regarding 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 Misic [2001]
“Essentially a document is a thing which provides evidence or information or serves as a record.”
Hayes v R [2008] (Regarding Use)
“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 Morley [2010] (Regarding Intention to Deceive)
An intention to deceive requires that the deception is practised in order to deceive the affected party. Purposeful intent is necessary and must exist at the time of the deception.
R v Koroheke 28/11/01 (Regarding Genitalia)
The genitalia comprise the reproduction organs, interior and exterior … they include the vulva [and] the labia, both interior and exterior, at the opening of the vagina.
“Therefore, if a part of the offender’s body or an object held or manipulated by him is between the complainant’s labia to the slightest degree, it will constitute penetration for the purposes of sexual violation.”
Reasonableness
R v Gutuama 13/12/01
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 Koroheke (Regarding Force, Threat or Fear of Force)
It is important to distinguish between consent that is freely given and submission by a woman to what she may regard as unwanted but unavoidable. For example, submission by a woman because she is frightened of what might happen if she does not give in or co-operate, is not true consent.
Cox v R regarding consent of a child
“Although we do not exclude the possibility that a child of ten or eleven may be able to give a full, voluntary, free and informed consent to sexual intercourse, the circumstances that would justify that conclusion would be exceptional if not rare. A ten or eleven year old child may know what sexual intercourse is. She may indicate her agreement.”
Cox v R regarding reasonable belief in consent of a child
“Save in exceptional and rare circumstances … even where she indicates an agreement to the act occurring … no reasonable adult would have grounds for believing that a ten or eleven year old girl has the experience or maturity to understand the nature and significance of the act.”
R v Court [1988] Regarding Indecency
Indecency means “conduct that right-thinking people will consider an affront to the sexual modesty of [the complainant]”.
R v Leeson [1968]
“The definition of ‘indecent assault’ … is an assault accompanied with circumstances of indecency …”
R v Skivington [1967]
“Larceny [or theft] is an ingredient of robbery, and if the honest belief that a man has a claim of right is a defence to larceny, then it negatives one of the elements in the offence of robbery, without proof of which the full offence is not made out.”
R v Lapier [1784]
Robbery is complete the instant the property is taken, even if possession by the thief is only momentary.
R v Maihi [1993]
“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 22/8/96
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 [1986]
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.”
DPP v Smith [1961]
“Bodily harm” needs no explanation and “grievous” means no more and no less than “really serious”.
R v Joyce [1968]
“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 [1985]
“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 Heard (1985)
“The form of words used for a demand does not matter. ‘Demand’ is a strong word, but … a demand does not have to be couched in abusive terms, so long as it is clear that it is a request for something.”
R v Pene
Party to Offence
A party must intentionally help or encourage – it is insufficient if they were reckless
as to whether the principal was assisted or encouraged.
R v Renata
Regarding Principal Offender
The court held that where the principal offender cannot be identified, it is sufficient
to prove that each individual accused must have been either the principal or a
party in one of the ways contemplated by s66(1).
Larkins v Police
Actual Proof of Assistance is Required
While it is unnecessary that the principal should be aware that he or she is being
assisted, there must be proof of actual assistance.
Ashton v Police
Regarding Legal Duty
An example of a secondary party owing a legal duty to a third person or to the
general public is a person teaching another person to drive. That person is, in New
Zealand, under a legal duty to take reasonable precautions, because under s156
of the Crimes Act 1961 he is deemed to be in charge of a dangerous thing.
R v Russell
Regarding Special Relationship
Morally Bound to Take Active Steps
The court held that the accused was morally bound to take active steps to save his
children, but by his deliberate abstention from so doing, and by giving the
encouragement and authority of his presence and approval to his wife’s act he
became an aider and abettor and thus a secondary offender.
R v Betts and Ridley
No Violence Contemplated…
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.
Cullen v R
Possession for Receiving - Four Elements
There are four elements of possession for receiving:
(a) awareness that the item is where it is;
(b) awareness that the item has been stolen;
(c) actual or potential control of the item; and
(d) an intention to exercise that control over the item.
R v Lucinsky
Regarding the Received Property
The property received must be the property stolen or illegally obtained
(or part thereof), and not some other item for which the illegally obtained
property had been exchanged or which are the proceeds.
R v Kennedy
The guilty knowledge that the thing has been stolen or dishonestly
obtained must exist at the time of receiving.
R v Donnelly
Regarding Stolen Property Recovered by Police
Where stolen property has been physically recovered by the Police, it is
legally impossible to commit the crimes of receiving or attempted
receiving in respect of it, although there may be evidence of conspiring
to receive property dishonestly obtained.
