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