Everything Flashcards
Cameron v R
Recklessness is established if:
(a) The defendant recognised that there was a real possibility that:
(i) His or her actions would bring about the proscribed result; and/or
(ii) That the proscribed circumstances existed; and
(b) Having regard to that risk those actions were unreasonable
What is the caselaw in relation to recklessness?
Cameron v R
Recklessness is established if:
(a) The defendant recognised that there was a real possibility that:
(i) His or her actions would bring about the proscribed result; and/or
(ii) That the proscribed circumstances existed; and
(b) Having regard to that risk those actions were unreasonable
R v Archer
Property may be damaged if it suffers permanent or temporary physical harm or permanent or temporary impairment to its use or value.
What is the caselaw defining damage?
R v Archer
Property may be damaged if it suffers permanent or temporary physical harm or permanent or temporary impairment to its use or value.
R v Harpur
[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.
What is the caselaw in relation to cumulative actions done prior to an offence?
R v Harpur
[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 Morley
Loss… is assessed by the extent to which the complainant’s position prior to the [offence] has been diminished or impaired.
Which caselaw discusses loss?
R v Morley
Loss… is assessed by the extent to which the complainant’s position prior to the [offence] has been diminished or impaired.
Deliberate
There must be an intention to:
- commit the act
- go get a specific result
Intent
The act or omission must be done deliberately. More than accidental.
Who has the onus to prove the offender’s intent?
The Crown
How do you prove an offender’s intent?
R v Collister
The offender’s actions and words before/during/after the event and the surrounding circumstances.
Reckless
Consciously and deliberately taking an unjustifiable risk
What must you prove when recklessness is an element in an offence?
- That the defendant consciously and deliberately ran a risk (subjective test)
- That the risk was one that was unreasonable given the circumstances as they were known to the defendant (objective test – would a reasonable person have taken the risk)
Damage
R v Archer
Property may be damaged if it suffers permanent or temporary physical harm or permanent or temporary impairment to its use or value.
Fire
The result of the process of combustion - a chemical reaction between fuel and oxygen triggered by heat
Explosive
- Any substance or mixture or combination of substances which in its normal state is capable of either of decomposition at such rapid rate as to result in an explosion or of producing a pyrotechnic effect
- Includes gunpowder, nitroglycerine, dynamite, gun-cotton, blasting powder, fulminate of mercury or other metals, coloured flares, fog signals, percussion caps, detonators, cartridges and ammunition of all descriptions
- Any device, contrivance or article which uses any substance or mixture or combination of substances to which para a or b applies as an integral part of it for the purposes or producing an explosion or a ballistic or pyrotechnic effect
- Does not include a firearm or fireworks
Property
Real and personal property and any estate or interest in any real or personal property [money, electricity] and any debt, and any thing in action and any other right or interest
How can property be damaged?
It is not necessary that the property is actually set alight; melting, blistering or paint or significant smoke damage may be sufficient.
Only tangible property is capable of being damaged directly.
Intangible property may be damaged indirectly eg info on a computer destroyed by fire.
Knowing
Simester and Brookbanks – knowing or correctly believing.. The defendant may believe something wrongly but cannot ‘know’ something that is false.
Danger to life
Means human life.
Must be someone other than the defendant.
Claim of right
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,
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 moveable. Generally of higher value.
Vehicle
Contrivance equipped with wheels, tracks or revolving runner on which it moves or is moved
Aircraft
As per s2 Civil Aviation Act (any machine that can derive support in the atmosphere from the reactions of the air otherwise than by the reactions of the air against the surface of the earth) and includes any aircraft for the time being used as an aircraft of any of the armed forces of any country other than NZ
Interest
Not defined. Includes tenancy in a property (R v Wilson)
Obtain
In relation to any person, means obtain or retain for himself or herself or for any other person.
Benefit
Any benefit, pecuniary advantage, privilege, property, service or valuable consideration
Loss
Not defined. Generally involves financial detriment to the victim.
- R v Morley
- Not necessary that the victim’s loss results in any benefit to the offender
Person
Gender neutral. Judicial notice, circumstantial evidence.
Includes organisations, companies, inhabitants
Attempts
s72 Crimes Act
Intends to commit the offence AND take a reals and substantial step towards achieving that aim
Sufficiently proximate
The offender must have taken a ‘real and practical step’ towards committing the offence.
What must the Crown prove to show that someone is guilty of an attempt?
Crown must prove that the defendant intended to commit the full act of arson and acted as he or she did for the purpose of achieving that aim
To be guilty of an attempt the defendant must have progressed past the stage of preparation and commenced a process intended to lead to the commission of the full offence.
What must the court look at to determine if a persons actions are sufficiently proximate to constitute an offence?
The court will analyse the defendant’s conduct at the relevant time in conjunction with evidence of their intent
LIABILITY: Arson (danger to life)
Section 267(1)(a) Crimes Act 1961
Intentionally OR recklessly
Damages by fire OR damages by means of any explosive
Any property
If he or she knows or ought to know that danger to life is likely to ensue
LIABILITY: Arson (no interest)
Section 267(1)(b) Crimes Act 1961
Intentionally OR recklessly
Without claim of right
Damages by fire OR damages by means of any explosive
Any immovable property OR vehicle OR ship OR aircraft
In which that person has no interest
LIABILITY: Arson (obtain benefit/cause loss)
Section 267(1)(c) Crimes Act 1961
Intentionally
Damages by fire OR damages by means of any explosive
Any immovable property OR vehicle OR ship OR aircraft
With intent to obtain any benefit or cause loss to any other person
Attempted Arson
S268 Crimes Act 1961
Attempts to commit arson in respect of any immovable property or any vehicle, ship or aircraft
LIABILITY: Intentional Damage (danger to life)
S269(1) Crimes Act 1961 Intentionally or recklessly Destroys or damages Any property If he or she knows or ought to know that danger to life is likely to result
