Definitions Flashcards
Person
Gender Neutral. Proven by Judicial notice or circumstantial evidence
Rape
Sexual Violation By Rape
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
Sec 128(2), Crimes Act 1961
PENETRATION
Introduction and penetration have the same meaning.
Introduction to the slightest degree is enough to effect a connection
Sec 2(1A), Crimes Act 1961
PROOF OF PENETRATION IS REQUIRED Proof my be provided by: - the complainant's evidence - medical examination, (DNA, injuries) - accused's admissions
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)
Sec 2, Crimes Act 1961
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.
R v KOROHEKE
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)
Sec 2, Crimes Act 1961
CONSENT
“Consent” is a person’s conscious and voluntary agreement to something desired or proposed by another.
Consent must be “full, voluntary, free and informed . . . freely and voluntarily given by a person in a position to form a rational judgement”.
R V COX
MATTERS THAT DO NOT CONSTITUTE CONSENT - Sec 128A CA 1961
- not protesting or offering physical resistance to use force.
- application of force to self or others, 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 ID
- mistaken as to the nature and quality of the act
(Only include those relevant to the scenario, if any)
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? ie what was the offender thinking at the time
Subjective test - step 3 - Reasonable grounds for belief of consent
If the offender believed the complainant was consenting, was that belief reasonable in the circumstances. Ie what would a reasonable person have believed if placed in the same position as the defendant?
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 GUTUAMA
Has Unlawful Sexual Connection
Sexual Violation By Unlawful Sexual Connection
UNLAWFUL SEXUAL CONNECTION - Sec 128(3) CA
Person A has unlawful sexual connection with Person B if Person A has sexual connection with Person B -
(a) without person B’s consent to the connection AND
(b) without believing on reasonable grounds that Person B consents to the connection
Sec 2 CA, SEXUAL CONNECTION
(a) connection effected by the introduction into the genitalia or anus of one person, otherwise than for genuine medical purpose, of
1 - a part of the body of another person; or
2 - an object held or manipulated by another person or
(b) connection between the mouth or tongue of one person and a part of another persons genitalia or anus; or
(c) the continuation of connection of a kind described in paragraph (a) or paragraph (b)
PENETRATION
Introduction and penetration have the same meaning.
Introduction to the slightest degree is enough to effect a connection
Sec 2(1A), Crimes Act 1961
PROOF OF PENETRATION IS REQUIRED Proof my be provided by: - the complainant's evidence - medical examination, (DNA, injuries) - accused's admissions
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)
Sec 2, Crimes Act 1961 (only include if relevant)
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.
R v KOROHEKE (only include if relevant)
OBJECTS HELD OR MANIPULATED:
Any object that can be held or manipulated by the other person - e.g bottle or vibrator
CONSENT
“Consent” is a person’s conscious and voluntary agreement to something desired or proposed by another.
Consent must be “full, voluntary, free and informed . . . freely and voluntarily given by a person in a position to form a rational judgement”.
R V COX
MATTERS THAT DO NOT CONSTITUTE CONSENT - Sec 128A CA 1961
- not protesting or offering physical resistance to use force.
- application of force to self or others, 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 ID
- mistaken as to the nature and quality of the act
(Only include those relevant to the scenario, if any)
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? ie what was the offender thinking at the time
Subjective test - step 3 - Reasonable grounds for belief of consent
If the offender believed the complainant was consenting, was that belief reasonable in the circumstances. Ie what would a reasonable person have believed if placed in the same position as the defendant?
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 GUTUAMA
Assaults another person
Assault with Intent to Commit Sexual Violation
ASSAULT
Assault means the act of intentionally applying or attempting to apply force to a person of another directly or indirectly, or threatening by any act or gesture to apply such a 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.
Sec 2, CA 1961
With intent to commit sexual violation
Assault with Intent to Commit Sexual Violation
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.
SEXUAL VIOLATION
(1) Sexual Violation is the act of a person who
(a) rapes another person; or
(b) has unlawful sexual connection with another person
Sec 128(1), Crimes Act 1961
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
Sec 128(2), Crimes Act 1961
OR
UNLAWFUL SEXUAL CONNECTION - Sec 128(3) CA
Person A has unlawful sexual connection with Person B if Person A has sexual connection with Person B -
(a) without person B’s consent to the connection AND
(b) without believing on reasonable grounds that Person B consents to the connection
Sec 2 CA, SEXUAL CONNECTION
(a) connection effected by the introduction into the genitalia or anus of one person, otherwise than for genuine medical purpose, of
1 - a part of the body of another person; or
2 - an object held or manipulated by another person or
(b) connection between the mouth or tongue of one person and a part of another persons genitalia or anus; or
(c) the continuation of connection of a kind described in paragraph (a) or paragraph (b)
Has sexual connection
(Sexual Conduct with dependant family member)
(Sexual Conduct with a child under 12)
(Sexual Conduct with a Young Person under 16)
Sec 2 CA, SEXUAL CONNECTION
(a) connection effected by the introduction into the genitalia or anus of one person, otherwise than for genuine medical purpose, of
1 - a part of the body of another person; or
2 - an object held or manipulated by another person or
(b) connection between the mouth or tongue of one person and a part of another persons genitalia or anus; or
(c) the continuation of connection of a kind described in paragraph (a) or paragraph (b)
PENETRATION
Introduction and penetration have the same meaning.
Introduction to the slightest degree is enough to effect a connection
Sec 2(1A), Crimes Act 1961
PROOF OF PENETRATION IS REQUIRED Proof my be provided by: - the complainant's evidence - medical examination, (DNA, injuries) - accused's admissions
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)
Sec 2, Crimes Act 1961 (only include if relevant)
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.
R v KOROHEKE (only include if relevant)
with a dependant family member
under 18 years
(Sexual Conduct with dependant family member)
DEPENDANT FAMILY MEMBER
Section 131A(1) CA 61
Dependant family member defined
For the purpose of section 131 one person is a dependant family member of another person
(a) if the other person has power or authority over him or her, and is -
(i) his or her parent, step parent, foster parent, gaurdian, uncle or aunt; or
(ii) a parent, step-parent or foster parent of a person described in subparagraph (i) or
(iii) a child of his or her parent or step-parenjt; or
(iv) the spouse or de facto partner of a person described in subparagraph (i) or subparagraph (ii) or subparagraph (iii) or
OR
SECTION 131A(1)(b) CA 61
if they are members of the samily family, whanau or other culturally recognized family group, and the other person
(i) is not a person referred to it paragraph (a) but
(ii) has a responsibility for or significant role in, his or her care or upbringing; or
OR
SECTION 131A(1)(c) CA 61
if he or she is living with the other person as a member of the other persons family and the other is not a person referred to in paragraph (a) but has
(i) power or authority over him or her and
(ii) a responsibility for, or significant role in, his or her care or upbringing
PROVING AGE
The best evidence possible in the circumstances should be adduced by the prosecution in proof of [the vicitm’s] age.
R V Forrest and Forrest
In practice this generally involves producing the victims birth certificate in conjunction with independent evidence that identifies the victim as the person named in the certificate.
With/on a child
Sexual Conduct with a child under 12
CHILD
Child means a person under the age of 12 years old
Section 132(6)(a)
PROVING AGE
The best evidence possible in the circumstances should be adduced by the prosecution in proof of [the vicitm’s] age.
R V Forrest and Forrest
In practice this generally involves producing the victims birth certificate in conjunction with independent evidence that identifies the victim as the person named in the certificate.
Does an Indecent Act
(Sexual Conduct with a child under 12)
(Sexual Conduct with a Young Person under 16)
INDECENT ACT
An act that is indecent has sexual connotations and involves conduct directed at a person that is offensive to public moral values
INDECENCY
Indecency means conduct that right thinking people will consider an affront to the sexual modesty of [the complainant]
R V Court
If such an act is done with the consent of the child/young person, it is immaterial whether:
- the offender does the act on the child
- the child does the act on the offender
- the act is mutual
Doing an indecent act on a child includes indecently assaulting the child Sec 132(6)(b) CA 61
With/on a young person
Sexual Conduct with a young person under 16
YOUNG PERSON
Young person means a person under the age of 16 years old
Section 134(6)(a)
PROVING AGE
The best evidence possible in the circumstances should be adduced by the prosecution in proof of [the vicitm’s] age.
R V Forrest and Forrest
In practice this generally involves producing the victims birth certificate in conjunction with independent evidence that identifies the victim as the person named in the certificate.
Indecently Assaults
indecent Assault
INDECENT ASSAULT
The definition of indecent assault is an assault accompanied with circumstances of indecency
R v LEESON
INDECENT ACT
An act that is indecent has sexual connotations and involves conduct directed at a person that is offensive to public moral values
INDECENCY
Indecency means conduct that right thinking people will consider an affront to the sexual modesty of [the complainant]
R V Court
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 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
Sec 2 CA 61
Knowing any
person
to be a party to an
offence
(Accessory After The Fact)
KNOWING
The accused must have knowledge that the person that they are being an accessory to was part to an offence at the time of assisting them.
Knowing means knowing or correctly believing. . . the belief must be a correct one, where the belief is wrong a person cannot know something
Simester and Brookbanks
Knowledge means actual knowledge or belief in the sense of having no real doubt that the person assisted was a party to an offence.
R v CROOK
Knowledge may also be inferred from wilful blindness or a deliberate abstention from making enquiries that would confirm the suspected truth
R v BRIGGS
PERSON
Gender neutral. Proven by judicial notice or circumstantially
PARTY 66(1) CA 61
Defines a person 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
OFFENCE
Any act or omission that is punishable on convictionunder any enactment, and are demarcated into four categories.
A person charged with being an accessory after the fact is entitled to insist on proof of the principal crime and to challenge the evidence of it even if the principal offender has pleaded guilty.
Receives, Comforts or Assists that person OR Tampers with or actively suppresses any evidence against him or her
(Accessory After The Fact)
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.
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 be actually help the person.
In order to enable him or her to escape after arrest
OR
to avoid arrest or conviction
To be considered an accessory the acts done by the person must be after the completion of the offence
R v MANE
The act must have specifically assisted the offender after they had been arrested.
OR
All acts must be done by accused the the express intention that the person evades justice either by avoiding arrest or conviction
Theft
Robbery
THEFT - Dishonestly - A without claim of right - taking any property with intent to deprive any owner permanently of that property - or of any interest in that property Sec 219(1) CA 1961
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 ingredients in the offence of robbery, without proof of which the full offence is not made out
R v SKIVINGTON
PROPERTY
Includes real or personal property, and any estate or interest in any real or personal property, money, electricity, and any debt and anything in action, and any other right or interest
SEC 2 CA 61
Robbery is complete the instant the property is taken, even if possession by the thief is only momentarily.
R v LAPIER
Possession must be actual or potential
ACTUAL POSSESSION
Actual Possession arises where the thing in question is in a persons physical custody or control
Possession involves two key 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 COX
OR
POTENTIAL POSSESSION
Potential possession arises when the person has the potential to have the thing in question in their control. For example, storing the thing in question at an associates house of through an agent.
Accompanied by
violence
Or
Threats of violence
(Robbery)
ACCOMPANIED BY
The prosecution must prove:
- a connection between the violence or threats of violence and the stealing of property.
- the defendant had an intent to steal at the time the violence or threats were used
- the violence of threats were used for the purpose of extorting the property or preventing or overcoming resistance to it being stolen
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.
R v MAIHI
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.
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.
PENEHA v Police
OR
THREATS OF VIOLENCE
A threat is generally a direct or veiled warning that violence will be used if the victim does not submit to the robbers demands.
Threats may also be conveyed by inference through the defendants conduct, demeanour or even appearance, depending on the circumstances.
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 of veiled. It may be conveyed by words or conduct, or a combination of both.”
R v Broughton [1986] 1 NZLR 641
To any person
OR
Property
(Robbery)
TO ANY PERSON
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.
PROPERTY
Includes real or personal property, and any estate or interest in any real or personal property, money, electricity, and any debt and anything in action, and any other right or interest
SEC 2 CA 61
Used to extort the property stolen
OR
Prevent or overcome resistance to it being stolen
(Robbery)
EXTORT
To extort means to obtain by coercion or intimidation.
Extortion implies an overbearing of the will of the victim, and the prosecution must show that the threats induced the victim to part with his property.
OR
PREVENT
To keep from happening
OVERCOME
To defeat; to prevail over; to get the better of in a conflict
Robs any person
Aggravated Robbery
ROBBERY
- Theft
- accompanied by violence of threats of violence
- to any person or property
- used to extort the property stolen or to prevent or overcome resistance to its being stolen
Sec 234(1) CA 61
PERSON
Gender neutral. Proven by judicial notice or circumstantially.
And at the time of or Immediately before or immediately after the robbery
(Aggravated Robbery)
AT THE TIME OF
During the commission of the theft, at the time of taking with the required intent.
IMMEDIATELY BEFORE
Refers to the connection in time between the robbery and the infliction of grievous bodily harm.
IMMEDIATELY AFTER THE ROBBERY
Refers to the connection in time between the robbery and the infliction of grievous bodily harm.
Causes GBH to any person
Aggravated Robbery
GRIEVOUS BODILY HARM
Grievous bodily harm can be defined simply as harm that is really serious
Bodily harm needs no explanation and grievous means no more and no less than really serious
DPP v SMITH
PERSON
Gender neutral. Proven by judicial notice or circumstantially.
Being together with any other person
or
persons
(Aggravated Robbery)
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
Being together in the context of 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 GALEY
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 JOYCE
Robs
Aggravated Robbery
ROBBERY
- Theft
- accompanied by violence of threats of violence
- to any person or property
- used to extort the property stolen or to prevent or overcome resistance to its being stolen
Sec 234(1) CA 61
Being armed with any offensive weapon OR Instrument OR Anything appearing to be such a weapon or instrument
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.
OFFENSIVE WEAPON Sec 202A(1) CA 61
Any article made or altered for use for causing bodily injury, or intended by the person having it with him for such use.
OR
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.
OR
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.
With intent to cause Grievous Bodily Harm
(Wounding with intent to cause GBH)
(Injuring with intent)
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.
The nature of the blow and the gash which it produced on the complainants head would point strongly to the necessary intent.
R v TAISALIKA
GRIEVOUS BODILY HARM
Grievous bodily harm can be defined simply as harm that is really serious
Bodily harm needs no explanation and grievous means no more and no less than really serious
DPP v SMITH
Wounds OR Maims OR Disfigures OR Causes GBH
(Wounding with intent to cause GBH)
(Wounding with intent)
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 were the bleeding which evidences the separation of tissues may be internal.
R v WATERS
OR
MAIMS
Will involve mutilating, crippling or disabling part of the body so the victim is deprived of the use of a limb or one of the senses. Needs to be some degree of permanence.
OR
DISFIGURES
To disfigure means to deform or deface, mar or alter the figure or appearance of a person.
The word disfigures covers not only permanent damage but also temporary damage
R v RAPANA and MURRAY
OR
GRIEVOUS BODILY HARM
Grievous bodily harm can be defined simply as harm that is really serious
Bodily harm needs no explanation and grievous means no more and no less than really serious
DPP v SMITH
With intent to injure anyone
OR
With reckless disregard for the safety of others
(Wounding with intent)
(injuring with intent)
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.
The nature of the blow and the gash which it produced on the complainants head would point strongly to the necessary intent.
R v TAISALIKA
INJURE Sec 2 CA 61
Means to cause actual bodily harm
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, no doubt, be more than merely transitory and trifling.
R v DONOVAN
OR
WITH RECKLESS DISREGARD FOR THE SAFETY OF OTHERS
While it is necessary to prove that the defendant foresaw the risk of injury to others, it is not necessary that he recognised the extent of the injury that would result.
Recklessness is 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 or risk
R v HARNEY
Injures
(Injuring with intent)
(Aggravated Injuring)
INJURE
Means to cause actual bodily harm
Sec 2 CA 61
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, no doubt, be more than merely transitory and trifling.
R v DONOVAN
(a) With intent to commit or facilitate the commission of an imprisonable offence
OR
(b) With intent to avoid detection of himself or any other person in the commission of an imprisonable offence
OR
(c) With intent to avoid arrest or facilitate flight of himself or any other person upon the commission or attempted commission of any imprisonable offence
(Aggravated wounding)
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.
The nature of the blow and the gash which it produced on the complainants head would point strongly to the necessary intent.
R v TAISALIKA
In addition to one of the specific intents outlined in paragraph (a) (b) (c) it must be shown the offender either meant to cause the specified harm or foresaw that the actions undertaken by him were likely to expose others to risk of suffering it
R v Tihi
SUB SECTION (a)
FACILITATE THE COMMISSION
To make possible or to make easy or easier
Under section 191(1)(a) “it is not necessary for the prosecution to prove the intended crime was actually subsequently committed
R v STURM
OR
SUB SECTION (b)
AVOID DETECTION
offences under section 191(1)(b) ariuse during the commission of an imprisonable where the offender causes the specified harm to prevent himself or another person from being “caught in the act”
OR
SUB SECTION (c)
FACILITATE FLIGHT
To make possible or to make easier.
The specified harm is caused to enable the offenders to more easily effect their escape, or to prevent their capture after the commission or attempted commission of an imprisonable offence
IMPRISONABLE OFFENCE SEC 5 CPA 2011
Imprisonable offence means, in the case of an individual, an offence punishable by imprisonment for life or by a term of imprisonment
There must be proof of the commission or attempted commission of a crime by either the person committing the assault or by the person whose arrest or flight he intends to avoid or facilitate
R v WATI
Wound any person OR Maim any person OR Disfigure any person OR Cause GBH to any person OR Stupefies any person OR Renders unconscious any person OR By any violent means renders any person incapable of resistance
(Aggravated Wounding)
(Aggravated Injuring)
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 were the bleeding which evidences the separation of tissues may be internal.
R v WATERS
OR
MAIMS
Will involve mutilating, crippling or disabling part of the body so the victim is deprived of the use of a limb or one of the senses. Needs to be some degree of permanence.
OR
DISFIGURES
To disfigure means to deform or deface, mar or alter the figure or appearance of a person.
The word disfigures covers not only permanent damage but also temporary damage
R v RAPANA and MURRAY
OR
GRIEVOUS BODILY HARM
Grievous bodily harm can be defined simply as harm that is really serious
Bodily harm needs no explanation and grievous means no more and no less than really serious
DPP v SMITH
OR
STUPEFIES
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 STURM
OR
RENDERS UNCONSCIOUS
To render a person unconscious, the offender’s actions must cause the victim to lose consciousness
OR
ANY VIOLENT MEANS
Includes the application of force that physically incapacitates a person
Incapable of resistance includes a powerlessness of the will as well as a physical incapacity.
R V CROSSAN
PERSON
Gender neutral. Proven by judicial notice or by circumstantial evidence.
With intent to obtain any property, service, pecuniary advantage or valuable consideration
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.
OBTAIN
Obtain, in relation to any person, means obtain or retain for himself or herself or any other person.
SEC 217 CA 61
PROPERTY
Includes real or personal property, and any estate or interest in any real or personal property, money, electricity, and any debt and anything in action, and any other right or interest
SEC 2 CA 61
OR
SERVICE
Not defined in the Crimes Act 1961
OR
PECUNIARY ADVANTAGE
Basically means an economic or monetary 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
OR
A valuable consideration is anything capable of being a valuable consideration, whether of a monetary kind or of any other kind, in short, money or money’s worth
HAYES v R
Dishonestly
DISHONESTLY
In relation to any 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
SEC 217 CA 61
And without claim of right
CLAIM OF RIGHT
In relation to any act, means a belief at the time 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 any matter of law other than the enactment against which the offences is alleged to have been committed
SEC 2 CA 61
Uses or attempts to use a document
USES OR ATTEMPTS TO USE
The prosecution must prove that the offender used or attempted to use the document with the intent to obtain the property, service, pecuniary advantage or valuable consideration.
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 a successful it may be difficult to draw a clear line between use and attempted use.
HAYES v R
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 or can be reproduced.
SEC 217 CA 61
Essentially a document is a thing which provides evidence or information or serves as a record.
R v MISIC
Takes or obtains a document
TAKES
For tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved.
SEC 219(4) CA 61
OR
OBTAINS
Means to obtain or retain for themselves or another person
SEC 217 CA 61
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 or can be reproduced.
SEC 217 CA 61
Essentially a document is a thing which provides evidence or information or serves as a record.
R v MISIC
Imports into
or
Exports from
New Zealand
IMPORTS
(a) in relation to any goods, means the arrival of the goods in New
Zealand in any manner, whether lawfully or unlawfully, from a point
outside New Zealand
SEC. 2 CUSTOMS AND EXCISE ACT 1996
To import includes “to introduce from abroad or to cause to be brought
in from a foreign country”.
SAXTON v POLICE
The element of importing exists from the time the goods enter New
Zealand until they reach their immediate destination … [ie] when they
have ceased to be under the control of the appropriate authorities and
have become available to the consignee or addressee”.
R v HANCOX
OR
EXPORTS
Time of exportation
For the purposes of this Act, the time of exportation is the time when the
exporting craft leaves the last Customs place at which that craft calls
immediately before proceeding to a point outside New Zealand.
SEC. 53 CUSTOMS AND EXCISE ACT 1996
MUST PROVE GUILTY KNOWLEDGE:
This will involve proof that the defendant:
· knew about the importation/exportation, and
· knew the imported/exported substance was a controlled drug,
and
· intended to cause the importation/exportation
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.
R v STRAWBRIDGE
USEABLE AMOUNT
In any drug offence the quantity of drug involved must be measurable
and useable.
“…the serious offence of … possessing a narcotic does not extend to
some minute and useless residue of the substance”.
POLICE v EMERALI
Any Controlled drug
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.
SEC 2 MODA 1975
Produce
or
Manufacture
PRODUCE
To “produce” means to bring something into being, or to bring something into
existence from its raw materials or elements.
OR
MANUFACTURE
Manufacturing is the process of synthesis; combining components or processing
raw materials to create a new substance.
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 RUA
COMPLETE
The offence is complete once the prohibited substance is created, whether or
not it is in a useable form.
MUST PROVE GUILTY KNOWLEDGE:
This will involve proof that the defendant:
· knew about the importation/exportation, and
· knew the imported/exported substance was a controlled drug,
and
· intended to cause the importation/exportation
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.
R v STRAWBRIDGE
USEABLE AMOUNT
In any drug offence the quantity of drug involved must be measurable
and useable.
“…the serious offence of … possessing a narcotic does not extend to
some minute and useless residue of the substance”.
POLICE v EMERALI
Supplies or Administers Or Offers to Supply Or Offers to Administer Or Otherwise deals in
Supply
Includes to distribute, give or sell.
SEC 2 MODA 1975
Supply involves “more than the mere transfer of physical control … [it
includes] enabling the recipient to apply the thing … to purposes for which
he desires …”
R v MAGINNIS
OR
ADMINISTERS
In the context of drug dealing, the appropriate meaning of “administer” is “to
direct and cause a … drug to be taken into the system” of another person.
BLACK’S LAW DICTIONARY
OR
OFFERS
Express readiness to do something for or on behalf of someone.
OXFORD DICTIONARY
OFFERS TO SUPPLY
“[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 DURING
OFFERING TO SUPPLY
· 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 BROWN
SUPPLY
Includes to distribute,give or sell.
SEC 2 MODA 75
OR
OFFERS
Express readiness to do something for or on behalf of someone.
OXFORD DICTIONARY
ADMINISTERS
In the context of drug dealing, the appropriate meaning of “administer” is “to
direct and cause a … drug to be taken into the system” of another person.
BLACK’S LAW DICTIONARY
OR
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
MUST PROVE GUILTY KNOWLEDGE:
This will involve proof that the defendant:
· knew about the importation/exportation, and
· knew the imported/exported substance was a controlled drug,
and
· intended to cause the importation/exportation
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.
R v STRAWBRIDGE
USEABLE AMOUNT
In any drug offence the quantity of drug involved must be measurable
and useable.
“…the serious offence of … possessing a narcotic does not extend to
some minute and useless residue of the substance”.
POLICE v EMERALI
Class A or B
Controlled drug
CLASS A CONTROLLED DRUG
Means any controlled drugs specified or described in Schedule 1 to this Act.
SEC 2 MODA 1975
OR
CLASS B CONTROLLED DRUG
Means any controlled drugs specified or described in Schedule 2 to this Act.
SEC 2 MODA 75
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.
SEC 2 MODA 75
Class C Controlled
drug
CLASS C CONTROLLED DRUG
Means the controlled drugs specified or described in Schedule 3 to this Act,
and includes any controlled drug analogue.
SEC 2 MODA 75
CONTROLLED DRUG
Means any substance, preparation, mixture or article specified or described
in Schedule 1, Schedule 2, or Schedule 3 to this Act and includes any
controlled drug analogue.
SEC 2 MODA 75
Sells
OR
Offers to sell
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
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
drug to that other person.
SEC 6(5) MODA 75
OR
OFFERS
Express readiness to do something for or on behalf of someone.
OXFORD DICTIONARY
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)
MUST PROVE GUILTY KNOWLEDGE:
This will involve proof that the defendant:
· knew about the importation/exportation, and
· knew the imported/exported substance was a controlled drug,
and
· intended to cause the importation/exportation
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.
R v STRAWBRIDGE
USEABLE AMOUNT
In any drug offence the quantity of drug involved must be measurable
and useable.
“…the serious offence of … possessing a narcotic does not extend to
some minute and useless residue of the substance”.
POLICE v EMERALI
Has in his
possession
(Drug Dealing)
POSSESSION
Possession involves two elements. The first, the physical element, is actual
or potential physical custody or control. The second, 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 COX
Possession may be actual or potential
ACTUAL POSSESSION
Means that the person actually has the drug in their custody or control
OR
POTENTIAL POSSESSION
Potential possession arises when the person has the potential to have the
thing in question in their control
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.
SEC 2(2) MODA 75
For any of the
purposes set out in
paras (c), (d) or (e)
(Drug Dealing)
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
deal in any such controlled drug;
SEC. 6(1)(c), MODA 75
OR
Supply or administer, or offer to supply or administer, any Class C
controlled drug to a person under 18 years of age;
SEC. 6(1)(d), MODA 75
OR
Sell, or offer to sell, any Class C controlled drug to a person of or over 18
years of age;
SEC. 6(1)(e), MODA 75
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)).
SEC. 6(6) MODA 1975
MUST PROVE GUILTY KNOWLEDGE:
This will involve proof that the defendant:
· knew about the importation/exportation, and
· knew the imported/exported substance was a controlled drug,
and
· intended to cause the importation/exportation
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.
R v STRAWBRIDGE
USEABLE AMOUNT
In any drug offence the quantity of drug involved must be measurable
and useable.
“…the serious offence of … possessing a narcotic does not extend to
some minute and useless residue of the substance”.
POLICE v EMERALI
