definitions Flashcards
Rape
Person A rapes person B if person A has sexual connection with person B, effected by the penetration of person B’s genitalia by person A’s penis -
(a) without person B’s consent to the connection
and
(b) without believing on reasonable grounds that person B consents to the connection
Section 128(2), Crimes Act 1961
Maims
will include mutilating, crippling or disabling a part of the body so victim is deprived the use of a limb or one of the senses. Needs to be some degree of permanence
Grievous bodily harm
Grievous bodily harm can be defined simply as “harm that is really serious”
Doing an indecent act on a young person
Doing an indecent act on a young person includes sexually assaulting the young person Section 134(6)(b)
Doing an indecent act on a child
Doing an indecent act on a child includes sexually assaulting the child Section 132(6)(b)
If such an act is done with the consent of a young person / child
If such an act is done with the consent of a child / young person, it is immaterial whether
- the offender does the act on the child / young person
- the child / young person does the act on the offender
- the act is mutual
Indecent act
An act that is indecent has sexual connotations and includes conduct directed at a person that is offensive to public moral values
Young person
Young person means a person under the age of 16 years Section 134(6)(a), Crimes Act 1961
Child
Child means a person under the age of 12 years Section 132(6)(a), Crimes Act 1961
Proving age
In practice this generally involves producing the victims birth certificate in conjunction with independent evident that identifies the victim as the person named in the certificate
Sexual Violation
Sexual violation is the act of a person who
(a) Rapes another person or
(b) has unlawful sexual connection with another person
Section 128(1), Crimes Act 1961
Intent
In a criminal law context there are two specific types of intention in an offence, firstly there must be an intention to commit the act and secondly an intention to get a specific result
Assault
Assault means the act of intentionally applying or attempting to apply force to the person of another directly or indirectly, or threatening by any act or gesture to apply such force to the person of another, if the person making the threat has, or causes the other to believe on reasonable grounds that he has, present ability to effect his purpose, and to assault has a corresponding meaning
Section 2, Crimes Act 1961
Sexual connection
(a) Connection effected by the introduction into the genitalia or anus of one person, otherwise than for genuine medical reasons of
(i) a part of the body of another person or
(ii) an object held or manipulated by another person or
(b) Connection between the mouth or tongue of one one person and a part of another persons genitalia or anus or
(c) continuation of connection of a kind described in paragraph (a) or paragraph (b)
Section 2, Crimes Act 1961
Unlawful sexual connection
Person A has unlawful sexual connection with person B if Person A has sexual connection with person A
(a) without person B’s consent to the connection
and
(b) without believing on reasonable grounds that person B consents to the connection
Section 128(3), Crimes Act 1961
Controlled Drug
Means any substance, preparation, mixture or article specified or described in schedule 1, schedule 2 or schedule 3 of this Act, and includes any controlled drug analogue
,Section 2, Misuse of drugs Act 1975
Reasonable grounds
The establishing of reasonable grounds is a three step process
Subjective test step 1 Absence of consent
What was the complainant thinking at the time? was s/he consenting?
Subjective test step 2 Belief in consent
If s/he were not consenting did the offender believe the complainant was consenting? i.e. what was the offender thinking at the time.
Objective test step 3 Reasonable grounds for belief in consent
If the offender believed the complainant was consenting, was that belief reasonable in the circumstances. i.e. what would a reasonable person have believed if placed in the same position as the defendant?
Matters that do not constitute consent
- Not protesting or offering physical resistance to use of force
- Application of force to self or other, threats of force to self or others, or fear of force to self or others
- Asleep or unconscious
- So affected by drugs/alcohol they cannot consent
- So affected by mental or physical impairment they cannot consent
- Mistaken identity
- Mistaken as to the nature and quality of the act
Consent
Consent is a persons conscious and voluntary agreement to something desired or proposed by another
Penis
Penis includes a surgically constructed or reconstructed organ analogous to a naturally occurring penis (whether the person concerned is male, female or of indeterminate sex)
Section 2, Crimes Act 1961
Genitalia
Genitalia includes a surgically constructed or reconstructed organ analogous to naturally occurring male or female genitalia (whether the person concerned is male, female or of indeterminate sex)
Section 2, Crimes Act 1961
Proof of penetration is required
Proof may be provided by:
- the complainant’s evidence
- medical examination, (DNA, injuries)
- accused’s admissions.
Penetration
Introduction and penetration have the same meaning.
Introduction to the slightest degree is enough to effect a connection. Section 2(1A), Crimes Act 1961
Facilitate flight
To make possible or to make easy or easier
The specified harm is caused to enable the offender(s) to more easily effect their escape, or to prevent their capture after the commission or attempted commission of an imprisonable offence
Avoid detection
Offences under section 191(1)(b) arise during the commission of an imprisonable, where the offender causes the specified harm to prevent himself or another from being ‘caught in the act’
Facilitate the commission
To make possible or to make easy or easier
Injure
To injure means to cause actual bodily harm
Section 2, Crimes Act 1961
Disfigures
To disfigure means to deform or deface, to mar or alter the figure or appearance of a person
Constructive possession
Possession may be actual or constructive
Constructive possession arises when something is not in a persons physical custody but they have ready access to it or can exercise control over it
Actual possession
Possession may be actual or constructive
Actual possession arises where the thing in question is in a persons physical custody, it is on or about their person, or immediately at hand
Theft/ Stolen
- Dishonestly
- Without claim of right
- Takes any property wit intent to deprive any owner permanently of that property
- or any interest in that property
Section 219(1), Crimes Act 1961
Any violent means
Includes the application of force that physically incapacitates a person
Renders unconcious
To render a person unconscious means the offender’s actions must cause the victim to lose conciousness
Imprisonable offence
Imprisonable offence means, in the case of an individual an offence punishable by imprisonment for life or a term of imprisonment Section 5, Criminal Procedure Act 2011
At the time of the robbery
During the commission of the theft, at the time of the taking with the required intent
Robbery
- Theft
- Accompanied by violence or threats of violence
- to any person or property
- used to extort the property stolen or to prevent or overcome resistance to its being stolen
Section 234(1), Crimes Act 1961
Overcome resistance
To defeat, to prevail over, to get the better of in a conflict
Prevent
To keep from happening
Property
Includes any real or personal property and any estate or interest in any real or personal property, money, electricity or any debt or any thing in action or any other right or interest
Section 2, Crimes Act 1961
To any person (violence)
Gender Neutral, proven by judicial notice or circumstantially
Violence or threats can be directed at any person not just the victim and any property or interest
Threats of violence
A threat of violence is generally a direct or veiled warning that violence will be used unless the victim submits to the robber’s demands
Threats may also be conveyed by inference through the defendants conduct, demeanor or even appearance depending on the circumstances
Violence
In the context of robbery, violence must involve more than a minimal degree of force and more than a technical assault but need not involve the infliction of bodily injury
Accompanied by
The prosecution must prove
- A connection between the violence or threats of violence and the stealing of the property
- The offender had intent to steal when the violence or threats were used
- The violence or threats were used for the purpose of extorting the property or preventing or overcoming resistance to it being stolen
Class A controlled drug
means any controlled drug specified or described in schedule 1 to this Act.
Section 2, misuse of Drugs Act 1975
Anything appearing to be such a weapon or instrument
It must be proved both that, the object appeared to be an offensive weapon or instrument to the victim and that the defendant intended or was at least reckless as to the possibility that it would be perceived as a weapon
immediately after the robbery
Refers to the connection in time between the robbery and the infliction of grievous bodily harm
Instrument
The term “instrument” is not defined by statute, but will include any item intended to be used as a weapon or to intimidate and overbear the victims will to resist
Offensive weapon
Any article made or altered for use for causing bodily injury, or intended by the person having it with him for such use. Section 202A(1), Crimes Act 1961
Being armed with
the term “being armed with” means that the defendant is carrying the item or has it available for immediate use as a weapon
Class B controlled drug
means any controlled drug specified or described in schedule 2 to this Act.
Section 2, misuse of Drugs Act 1975
Guilty knowledge of importation
The crown must prove not only that the defendants conduct in some way contributed to the actual importation of the drug, it must also prove the defendants guilty knowledge
This will involve proof that the defendant
- knew about the importation and
- knew the imported substance was a controlled drug and
- intended to cause the importation
Exports
Time of exportation
For the purposes of this Act, the time of the exportation is the time when the expiring craft leaves the last customs place at which that craft calls immediately before proceeding to a point outside of New Zealand
Section 53, Customs and Excise Act 1996
being together with
There must be proof that, in committing the robbery, the defendant was part of a joint enterprise by two or more persons who were physically present at the robbery
Imports
Importation
(a) in relation to any goods, means the arrival of the goods in Nea Zealand in any manner whether lawful or unlawful from a point outside of New Zealand
Section 2, Customs and Excise Act 1996
Class C controlled drug
means the controlled drugs specified or described in schedule 3 to this Act and includes any controlled drug analogue.
Section 2, misuse of Drugs Act 1975
immediately before the robbery
Refers to the connection in time between the robbery and the infliction of grievous bodily harm
Manufacture
Manufacturing is the process of synthesis; combining components or processing raw materials to create a new substance
Complete (section 6(1)(b) MODA 1975)
The offence is complete once the prohibited substance is created, whether or not it is in a usable form
Supply
Includes to distribute, give or sell
Section 2, Misuse of drugs Act 1975
Guilty knowledge of produce/manufacturing
Must prove guilty knowledge
This will involve proof that the defendant
- knew about the produce/manufacturing and
- knew the produce/manufacturing substance was a controlled drug and
- intended to cause the produce/manufacturing
Produce
To produce means to bring something into being, or to bring something into existence from its raw materials or elements.
Possession (Section 2(2), Misuse of Drugs Act 1975)
For the purposes of this act, the things which a person has in his possession include any thing subject to his control which is in the custody of another Section 2(2) Misuse of drugs Act 1975
Offers to sell
The prosecution must prove two elements:
- the communicating of an offer to sell a controlled drug (the actus reus) and
- an intention that the other person believes the offer to be genuine (the mens rea)
Dealing with controlled drugs
For the purposes of paragraph (e) of subsection (1) of this section, if it is proved that a person has supplied a controlled drug to another person he shall until the contrary is proved be deemed to have sold that controlled to that other person Section 6(5) Misuse of Drugs Act 1975
Sell
A sale occurs when a quantity or share in a drug is exchanged for some valuable consideration. Will commonly be money but anything of value will suffice
offers to administer
it is not necessary to show the person making the offer to supply, actually intended to supply the drug
Guilty knowledge of supply/administering/offer
Must prove guilty knowledge
This will involve proof that the defendant
- knew about the supply/administering/offer and
- knew the supply/administering/offer substance was a controlled drug and
- intended to cause the supply/administering/offer
otherwise deals in
the term “otherwise deals” in paragraph (c) is aimed at dealing in a drug by some means other than by distributing, giving or selling it, administering it or offering to supply or administer it
Offering to administer
- Offers to administer a drug that he has on hand
- Offers to administer a drug that will be procured at some future date
- Offers to administer a drug that he mistakenly believes he can supply
- Offers to administer a drug deceitfully, knowing he will not supply that drug
Administers
In the context of drug dealing, the approprite meaning of administer is to direct and cause a …. drug to be taken into the system of another person.
Black’s Law Dictionary
Section 6(1)(c), Misuse of Drugs Act 1975
supply or administer or offer to supply or administer, any Class A controlled drug or class B controlled drug to any other person, or otherwise deals in any such controlled drug Section 6(1)(c), Misuse of Drugs Act 1975
Dealing with controlled drugs - presumption
For the purposes of subsection (1)(f), a person is presumed until the contrary is proved to be in possession of a controlled drug for any of the purposes in subsection (1)(c), (d) or (e) if he or she is in possession of the controlled drug in an amount, level or quantity at or over which the controlled drug is presumed to be for supply (see section 2(1A))
Section 6(1)(e), Misuse of Drugs Act 1975
Sell or offer to sell any Class C controlled drug to a person of or over 18 years of age Section 6(1)(e), Misuse of Drugs Act 1975
Section 6(1)(d), Misuse of Drugs Act 1975
Supply or administer or offer to supply or administer and Class C controlled drug to a person under 18 years of age Section 6(1)(d), Misuse of Drugs Act 1975
Must prove guilty knowledge
This will involve proof that the defendant
- knew about the possession and
- knew the possessed substance was a controlled drug and
- intended to carry out either (c),(d) or (e)
Discharges
To discharge in this context means to fire or shoot
Firearm
Firearm
(a) means anything from which any shot, bullet, missile or other projectile can be discharge by force of explosive and
(b) Includes
(i) Anything that has been adapted so that it can be used to discharge a shot, bullet, missile or other projectile by force of explosive and
(ii) Anything which is not, for the time being capable of discharging any shot, bullet, missile or other projectile but which by its completion or the replacement of any component part or parts or the correction or repair of any defect or defects would be a firearm within the meaning of paragraph (a) of this definition or sub-paragraph (i) of this paragraph and
(iii) anything (being a firearm within the meaning of paragraph (a) of this definition or sub-paragraph (i) of this paragraph) which is for the time being dismantled or partly dismantled and
(iv) any specially dangerous airgun
Section 2, Arms Act 1983
Airgun
Airgun includes (a) any air rifle (b) any air pistol (a) any weapon from which, by the use of gas or compressed air (and not by force of explosive) any shot bullet, missile or other projectile can be discharged Section 2, Arms Act 1983
Similar weapon
Similar weapon
Sends to or delivers
The term send or deliver take their ordinary meaning and may include situations where the victim receives a dangerous thing by mail or courier
Puts in any place
would take on its normal meaning and would include any place an item can be left
Explosive
Any substance or mixture or combination of substances which in it’s normal state is capable either of decomposition at such rapid rate as to result in an explosion or of producing a pyrotechnic effect, Includes: gun powder, gelignite, detonators Does not include: Firearms, fireworks
Section 2, Arms Act 1983
Injurious substance or device
The term “injurious substance or device” covers a range of things capable of causing harm to a person; for example a letter containing anthrax powder that is mailed to a political target
Completion of offence (firearms)
Although offences under section 198(1)(a) require the actual discharge of a firearm at a person, under section 198(1)(b) it in not necessary for an explosion to occur; the offence is complete when an explosive or an injurious substance or device is sent, delivered or put in place. However, the substance must have the capacity to explode or cause injury
Sets fire (firearm)
Fire is the result of the process of combustion, a chemical reaction between fuel and oxygen, triggered by heat
Against any Constable
Constable means a police employee who - (a) holds the office of constable (whether appointed as a constable under the Police Act 1958 or this act) and
(b) includes a constable who holds any level of position within the New Zealand Police
Section 4, Police Act 2008
Acting in the course of his or her duty
The term includes every lawful act which a constable does while on duty, and may include acts done where the circumstances create a professional obligation for a constable to exercise policing duties while off duty
However, an officer who is acting unlawfully, cannot be said to be acting in the course of his or her duty**
Knowing that the person is a member of the police so acting
The accused must know the victim is a police officer and know that the officer is acting in the course of his or her duty, or be reckless as to those facts.
Knowing / knowledge
Knowing means knowing or correctly believing
Simester and Brookbanks
The defendant may believe something wrongly, but cannot know something that is false
Must be in the commission of an imprisonable offence
Must be in the commission of an imprisonable offence
Uses
Has a narrower meaning than 198A and includes firing or presenting a firearm, or displaying it in a menacing manner, but may not extend to the use of a firearm as a club
To obtain consent by fraud
Consent obtained by the misrepresentation of the facts or the offenders intentions
To obtain consent by duress
Consent obtained by actual or implied threat of force to the victim or another person. Can include other forms of pressure and coercion
Section 209A, Crimes Act 1961
A child under the age of 16 years cannot consent to being taken away or detained
Cause to be married or have sexual connection with some other person
This relates to situations where the abductor takes away or detains the victim to enable another person to marry them
OR
Under this provision the offender’s intent is to enable another person to have sexual connection with the victim
Marry
In this context means to engage in a marriage solemnized in accordance with the provisions of the Marriage Act 1955
Ransom or Service
Ransom A sum of money demanded or paid for the release of a person being held capture or Service Hold as a servant or slave
Confined or Imprisoned
Confined Restricting their movements to within a geographical area or Imprisoned To be held as if in prison
Sent out of New Zealand or Taken out of New Zealand
Sent out of New Zealand
Sent- normal meaning, to be sent outside New Zealand shores
OR
Taken out of New Zealand
Taken suggests victim in company or custody of a person accompanying them out of New Zealand
Person (if applicable, obtain any benefit or cause loss)
Gender Neutral. Proven by judicial notice or circumstantial evidence
** (add only if relates)
Legislation provides a wide definition of the term person that incorporates not only real people, but also companies and other organisations.
Section 2, Crimes Act 1961
Benefit
Any benefit, pecuniary advantage, privilege, property, service or valuable consideration Section 267(4), Crimes Act 1961
Obtain
Obtain in relation to any person means obtain or retain for himself or herself or any other person
Section 217, Crimes Act 1961
Immovable property
property will be considered immovable if it is currently fixed in place and unable to be moved, even though it may be possible to make it movable. In general, it relates to buildings and land and things growing on land, such as forrests
Aircraft
means any machine that can derive support in the atmosphere from the reaction of the air otherwise than by the reactions of the air against the surface of the earth
Section 2, Civil Aviation Act 1990
Damages by fire
Although fire damage will often involve burning or charring, it is not necessary that the property is actually set alight; melting, blistering of paint or significant smoke damage may be sufficient
Life
“life” in this context means human life, and the danger must be to the life of someone other than the defendant.
Claim of right
In relation to any act, means a belief at the time of the act in a proprietary or possessory right in property in relation to which the offence is alleged to have been committed, although that belief may be based on ignorance or mistake of fact or of any matter of law other than the enactment against which the offence is alleged to have been committed
Section 2, Crimes Act 1961
vehicle
Means a contrivance equipped with wheels, tracks or revolving runners on which it moves or is moved
Section 2 Land Transport Act 1998
Ship
Means every description of vessel used in navigation, however propelled; and includes any barge, lighter, dinghy, raft, or like vessel; and also included any ship belonging to or used as a ship of the armed forces of any country
Section 2, Crimes Act 1961
evade justice
All acts must be done by accused with the express intention that the person evades justice either by avoiding arrest or conviction
the act must have specifically….
the act must have specifically assisted the offender after they had been arrested
tampers with/actively suppresses evidence
must do a deliberate act in relation to evidence against the offender for the purpose of assisting the person to evade justice. the act must actually help the person
party
Defined as being anyone who
- commits the offence
- does or omits an act for the purpose of aiding any person to commit the offence
- abets any person in the commission of the offence
- incites, counsels or procures any person to commit the offence
Section 66(1), Crimes Act 1961
offence
An act or omission that is punishable that is punishable on conviction under any enactment and demarcated into four categories
Challenge (to accessory after the fact)
A person charged with being an accessory after the fact is entitled to insist on proof of the principle crime and to challenge the evidence of it even if the principle offender has pleaded guilty
Receives/comforts or assists
the accused does a deliberate act for the purpose of assisting the person to evade justice. the act done must actually help the person in some way
Knowing (accessory after the fact)
the accused must have knowledge that the person that they are being an accessory to was party to an offence at the time of assisting them
A continuing act of remaining
A continuing act of remaining in the building without authority and the continuing act is accompanied at some point by an intent to commit a crime within the building
While committing
The accused must be in the process of committing a burglary
Has (burglary)
The words “has a weapon with him or her” require no more than that the weapon is on the person of the accused or is readily available to him or her
Uses (Burglary)
A weapon may be “used” where words or conduct show the defendant has actual possession of a weapon or it is immediately available
Anything as a weapon
burglary
Under this provision the item is not necessarily one that is made to inflict bodily injury it is any item capable of inflicting bodily injury so long as the person using it intends it to be used for such purpose
Present (burglary)
the accused must still be present on the building or ship. In this sense the finding of the accused on the premises is an essential part of the offence.
Includes
The word includes and the particular examples used it is clear that parliament was not attempting to provide a comprehensive list of the items that might fall within the definition.
Authority
The act does not provide a definition of authority in general terms permission to enter onto (or remain within) the premises will be given by the occupier or person entitled to give consent
An imprisonable offence (burglary/receiving)
Normal meaning - any offence punishable by a term of imprisonment
Having
The word ‘having’ changes the entry element from 231(1)(a) as the accused must have already entered the building or ship before formulating the required intent to commit a crime
Remaining
The term “remaining” suggests this form of the offence may be committed in two ways
the physical element of the offence is complete (burglary)
the physical element of the offence is complete on the act of deliberately remaining in the building after the point where the accused should have left the building.
Building
means any building or structure of any description, whether permanent or temporary; and includes a tent, caravan or houseboat; and also includes any enclosed yard or any closed cave or closed tunnel
Entry
For the purposes of section 231 and section 232 entry is defined under section 231(3) as:
(a) entrance into a building or ship is made as soon as any part of the body of the person making the entrance, or any part of any instrument used by that person, is within the building or ship
and
(b) everyone who gains entrance to a building or ship by any threat or artifice used for that purpose is to be treated as having entered without authority Section 231(3), Crimes Act 1961
Receiving
Receiving is complete as soon as the offender has, either exclusively or jointly with the thief or any other person, possession of, or control over, the property or helps in concealing or disposing of the property Section 246(3), Crimes Act 1961
Mens rea (Conspiracy)
The mens rea (mental intent) necessay for a conspiracy is:
- an intention of those involved to agree; and
- an intention that the relevant course of conduct should be pursued by those party to the agreement
Between two or more persons
A person cannot conspire alone; there must be another conspirator for an offence to be committed
Section 67, Crimes Act 1961
A husband and wife or civil union partners can commit conspiracy
Offence (Conspiracy)
Any act or omission that is punishable on conviction under any enactment, and are demarcated into four categories
Actus reus (Conspiracy)
the actus rea (physical element) of conspiracy is the agreement between two or more people to put their common design into effect.
The conspiratorial agreement requires….
The conspiratorial agreement requires the operation of both the physical and the mental faculties
Person (Obtains by deception)
Person, owner, and other words and expressions of the like kind, include the Crown and any public body or local authority, and any board, society, or company and any other body of persons, whether incorporated or not, and the inhabitants of the district of any local authority, in relation to such acts and things as it or they are capable of doing or owning
Section 2, Crimes Act 1961
loss
is likely to include financial and property losses and may also encompass emotional, cultural and intellectual losses
Liability
legally enforceable financial obligation to pay
Debt
money owing from one person to another
Intent to deceive
offender must know representation is false and intend the other person to act upon it as genuine
False representation
- Must be false and the defendant must know or believe that it is false in a material particular’ or
- be reckless whether it is false
Absolute certainty is not required and willful blindness as to the falsity of the statement will suffice
Deception
(a) a false representation, whether oral, documentary, or by conduct, where the person making the representation intends to deceive any other person and -
(i) knows that it is false in a material particular; or
(ii) is reckless as to whether it is false in a material particular
(b) an omission to disclose a material particular, with intent to deceive any person, in circumstances where there is a duty to disclose it; or
(c) a fraudulent device, trick, or stratagem used with intent to deceive
Uses or attempts to use
The prosecution must prove that the offender used of attempted to use the document with the intent to obtain the property, service, pecuniary advantage or valuable consideration
Document
Includes part of a document in any form, and includes
-Paper/material containing anything that can be read
-photos, negatives and related items
-discs, tapes, cards or other devices/equipment on which information is stored and can be reproduced
Section 217, Crimes Act 1961
Takes
For tangible property, theft is committed by taking when the offender moves the property or causes it to be moved Section 219(4), Crimes Act 1961
Dishonestly
In relation to an act or omission, means done or omitted without a belief that there was express or implied consent to, or authority for, the act or omission from a person entitled to give such consent or authority
Section 217, Crimes Act 1961
Pecuniary advantage
economic or monetary advantage
Service
limited to financial or economic value
