Case Law Flashcards
(35 cards)
Sexual violation by rape
Sexual violation by unlawful sexual connection
R v KOROHEKE (genitalia)
Includes the vulva and labia, both interior and exterior, at the opening of the vagina.
R v COX (consent)
Consent must be full, voluntary free and informed, fully and voluntarily given by a person in a position to form a rational judgement.
R v GUTUAMA (reasonable grounds)
Under the objective test the crown must prove that “no responsible person” in the defendant’s shoes could have thought that the complainant was consenting.
Assault with intent to commit sexual violation
R v MOHAN (intent)
Intent involves, a decision to bring about in so far as it lies within the accused power, the commission of the offence.
R v WAAKA (intent)
A fleeting or passing thought is not sufficient; there must be a firm intent or a firm purpose to effect an act.
Sexual conduct with dependant family member
Sexual conduct with child under 12
Sexual conduct with a young person under 16
R v KOROHEKE (genitalia)
Includes the vulva and labia, both interior and exterior, at the opening of the vagina.
R v FORREST AND FORREST (victim’s age)
The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victim’s age.
Birth certificate and evidence from a person who can identify the complainant.
Sexual conduct (indecent act) with child under 12
Sexual conduct (indecent act) with a young person under 16
R v COURT (indecent act)
Indecency means “conduct that right-thinking people will consider an affront to the sexual modesty of [the complainant].”
R v FORREST AND FORREST (victim’s age)
The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victim’s age.
Birth certificate and evidence from a person who can identify the complainant.
Indecent Assault
R v LEESON (indecent assault)
The definition of “indecent assault” … is an assault accompanied with circumstances of indecency…
Abduction
Kidnapping
R v CHARTRAND (unlawfully)
Unlawfully means “without lawful justification, authority or excuse”.
R v CROSSAN (takes away v detains)
Taking away and detaining are “separate and distinct offences. The first consists of taking [the victim] away; the second of detaining them.
R v WELLARD (takes away)
Deprivation of liberty coupled with carrying the victim away from where they want to be.
R v PRYCE (detains)
To keep in confinement or custody.
R v COX (consent)
Consent must be full, voluntary, free and informed… Freely and voluntary given by a person who is in the position to form a rational judgement.
PAO ON v LAU YIU LONG (duress)
Duress, whatever form it takes, is a coercion of the will so as vitiate (overrule) consent.
R v MOHAN (intent)
Intent involves a decision to bring about in so far as it lies within the accused power, the commission of the offence.
R v WAAKA (intent)
A fleeting or passing thought is not sufficient, there must be a firm intent or a firm purpose to effect an act.
R v MOHI (intent)
Offence is complete at time of taking away, so long as there is at the moment the necessary intent.
Robbery
Aggravated robbery - weapon
R v SKIVINGTON (claim of right)
Any defence for a charge of theft will also be a defence to a charge of robbery. Therefore the defence of claim of right is a defence to robbery.
R v LAPIER (taking)
Robbery is complete the instant the property is taken, even if possession by the thief is only momentary.
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 MAIHI (accompanied by violence)
Must be a nexus between the act of stealing and a threat of violence, does not require that they be contemporaneous.
PENEHA v POLICE (violence)
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)
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.”
Aggravated robbery - causes GBH
Robbery case law, and:
DPP V SMITH (Grievous Bodily Harm)
Bodily harm needs no explanation, grievous means no more and no less than really serious.
Aggravated robbery - together with
Robbery case law, and:
R v JOYCE (together with)
Two persons were physically present at the time of the robbery was committed or the assault occurred.
R v GALEY (together with)
Two persons having a common intention to use their combined force, either in any event, or as circumstances might require, directly in the perpetration of the crime.
Assault with intent to rob - causes GBH
R v MOHAN (intent)
Intent involves a decision to bring about in so far as it lies within the accused power, the commission of the offence.
R v WAAKA (intent)
A fleeting or passing thought is not sufficient, there must be a firm intent or a firm purpose to effect an act.
DPP v SMITH (Grievous Bodily Harm)
Bodily harm needs no explanation, grievous means no more and no less than really serious.
Assault with intent to rob - together with
R v MOHAN (intent)
Intent involves a decision to bring about in so far as it lies within the accused power, the commission of the offence.
R v WAAKA (intent)
A fleeting or passing thought is not sufficient, there must be a firm intent or a firm purpose to effect an act.
R v JOYCE (together with)
Two persons were physically present at the time of the robbery was committed or the assault occurred.
R v GALEY (together with)
Two persons having a common intention to use their combined force, either in any event, or as circumstances might require, directly in the perpetration of the crime.
Assault with intent to rob
Assault with intent to rob - weapon
R v MOHAN (intent)
Intent involves a decision to bring about in so far as it lies within the accused power, the commission of the offence.
R v WAAKA (intent)
A fleeting or passing thought is not sufficient, there must be a firm intent or a firm purpose to effect an act.
Obtain by deception
R v MORLEY (deception - representation)
Representation must relate to a statement of existing fact, rather than a statement of future intention.
R v MORLEY (intent)
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 HARNEY (knowledge - recklessness)
Recklessness means 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 of risk.
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 CARA (service)
Service is limited to financial or economic value, and excludes privileges or benefits.
Hayes v R (pecuniary advantage)
A pecuniary advantage is anything that enhances the accused’s financial position. It is that enhancement which constitutes the element of advantage.
Obtain credit by deception
R v MORLEY (deception - representation)
Representation must relate to a statement of existing fact, rather than a statement of future intention.
R v MORLEY (deception - intention)
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 HARNEY (knowledge - recklessness)
Recklessness means 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 of risk.
Receiving
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 LUCINSKY (stolen 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 DONNELLY (stolen property)
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.
R v KENNEDY (guilty knowledge)
The guilty knowledge that the thing has been stolen or dishonestly obtained must exist at the time of receiving.
R v HARNEY (knowledge - recklessness)
Recklessness means 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 of risk.
Arson
R v HARNEY (recklessness - 267(1)(a)&(b))
Recklessness means 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 of risk.
R v ARCHER (damages by fire)
Property may be damaged if it suffers permanent or temporary physical harm or permanent or temporary impairment of value or usefulness.
SIMESTER & BROOKBANKS (knowing - 267(1)(a))
“Knowing” means “knowing, or correctly believing” … the belief must be a correct one, where the belief is wrong a person cannot know something.
R v WILSON (interest - 267(1)(b))
Tenancy of a property constitutes an interest in it.
R v MORLEY (cause loss - 267(1)(c))
Loss… is assessed by the extent to which the complainant’s position prior to the offence has been diminished or impaired.
Conspiracy
MULCAHY v R (conspires)
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 the 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.
R v WHITE (at least two parties involved)
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.
Parties to offence (actually commits the offence)
R v RENATA
where the principle offender cannot be identified, it is sufficient to prove that each individual accused must have been either the principle or a party in one of the ways contemplated by S66(1) CA61
Parties to offence (aiding)
LARKINS v POLICE (actual proof of assistance)
While it is unnecessary that the principle should be aware that he or she is being assisted, there must be proof of actual assistance.
ASHTON v POLICE (aids)
Legal duty to ensure that vehicle was driven safely. Aston was held party to offence of dangerous driving as he was teaching a person to drive. He omitted to carry out his duty.
Parties to offence (abets)
R v RUSSELL (Special Relationship)
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.
Parties to - Section 66(2)
Section 66(2) - Where two persons or more form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of the common purpose.
R V BETTS & RIDLEY
Where two persons embark on an act of violence and one violently assaults a person, the other is also guilty, providing the act was a probably consequence of the common intention.
Timely Withdrawal - A secondary party may escape liability by a timely and effective withdrawal before the commission of the offence.
Accessory after the fact
SIMESTER & BROOKBANKS (Principle of criminal law)
“Knowing” means “knowing, or correctly believing” … the belief must be a correct one, where the belief is wrong a person cannot know something.
R v CROOKS (knowledge)
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.
R v BRIGGS (knowledge - wilful blindness)
As with receiving charge under 246(1), knowledge may also be inferred from wilful blindness or a deliberate abstention from making inquiries that would confirm the suspected truth.
R v MANE (enable escape/avoid arrest or conviction)
To be considered an accessory the act done by the person must be after the completion of the offence.
- A person charged with being an accessory may be charged whether or not the principal offender has been indicted or convicted.
- If the principal offender has been found not guilty, the person charged as an accessory after the fact must be acquitte.
Attempts
POLICE v JAY (intent to commit offence)
A man bought hedge clippings believing they were cannabis.
R v HARPUR (does or omits and act)
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 DONNELLY (Legal Impossibility)
Attempted receiving – Found not guilty because the property which he intended to receive had been restored to the owner. ‘Legally impossible’.
R v RING (Physical Impossibility)
The pickpocket attempted to steal money although there was none to steal. Physically impossible, but still liable
Higgins v Police (Physically not legally Impossible)
Where the plants being cultivated as cannabis are not in fact cannabis, it is physically, not legally, impossible to cultivate the prohibited plants. Accordingly it is possible to commit an offence of attempting to cultivate cannabis plant.
OFFENCE COMPLETE
1) An attempt is complete even though the accused changes their mind OR
2) Makes a voluntary withdrawal after committing an act that is sufficiently proximate to the intended act.
Wounding with Intent to Cause GBH
R v TAISALIKA (intent)
The nature of the blow and the gash which it produced on the complainant’s head would point strongly to the presence of the necessary intent.
DPP v SMITH (Grievous Bodily Harm)
Bodily harm needs no explanation, grievous means no more and no less than really serious.
R v WATERS (wound)
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 site of a 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
R v RAPANA & MURRAY (disfigure)
The word ‘disfigure’ covers “not only permanent damage but also temporary damage”.
