Exam 3 Flashcards
What is R v Collister
Circumstantial evidence can infer an offender’s intent
Words or actions before, during or after the event
The surrounding circumstances
The nature of the act itself
What is the case law in regards to recklessness
Cameron v R and R v Tipple
What is R v Cameron
Recklessness is established if the defendant recognizes there is a real possibility that
His/her actions would bring about the proscribed result
the proscribed circumstances existed
In regard to that risk, his/her actions were unreasonable
What is R v Tipple
A conscious appreciation of the risk and made a deliberate decision to run that risk
What are the elements of Abduction s208(b)
Unlawfully
takes away
OR
detains
any person
without their consent
OR
With consent obtained by fraud or duress
with intent to have sexual connection with the person
What are the elements of Abduction s208(c)
Unlawfully
Takes away
OR
Detains
any person
without their consent
OR
With consent obtained by fraud or duress
With intent to cause the person to go through a form of marriage or civil union
OR
With intent to cause the person to have sexual connection with any other person
What is R v Crossan (Kidnaps/Abducts)
Taking away and detaining are separate and distinct offences
What is R v Wellard
Kidnapping is the deprivation of liberty coupled with carrying away from the place a victim wants to be
What is R v Pryce
Detaining is to keep in confinement or custody
What is R v Cox (consent)
Consent must be full, voluntary, free and informed. Voluntarily and freely given by someone in a position to form a rational judgement
What is consent obtained by fraud
agreeing to a proposition by misrepresenting the facts or intentions
What is consent obtained by duress
violence or the threat of violence, expressed or implied to the victim or another person
What is R v Mohi
Offence is committed at the time of the taking, as long as at that moment there is necessary intent
What case law relates to Kidnapping and Abduction
R v Mohi, R v Wellard, R v Crossan, R v Pryce, R v Cox
What is ransom
Sum of money demanded or paid for the release of a person held captive
What is service
A slave
What is confining
restricting a person’s movements to a geographical area, exercising control and influence
What are the elements of Kidnapping s209(a)
Unlawfully
takes away
OR
detains
any person
without consent
OR
With consent obtained by fraud or duress
with intent to hold him or her for ransom or service
What does unlawfully mean
Without lawful justification or excuse
What are the elements of Kidnapping s209(b)
Unlawfully
Takes away
OR
Detains
Any person
Without their consent
OR
With consent obtained by fraud or duress
with intent to cause him or her to be confined or imprisoned
What are the elements of kidnapping s209(c)
Unlawfully
Takes away
OR
Detains
Any person
Without their consent
OR
With consent obtained by fraud or duress
With intent to cause him or her to be sent or taken out of NZ
What is Dishonestly
an act without a belief of implied or expressed consent by the owner
What is claim of right
a belief of proprietary or possessory right to the property at the time of the act
What is takes
to move an item or cause an item to be moved
What is R v Cox possesion
Mental and physical aspect
Physical - actual or potential custody or control
mental - knowledge and intent
What are the elements of Manufacture/Produce 6(1)(b) MODA 1975
Manufacture
OR
Produce
Any controlled drug
What does produce mean
bring something into being, change something from its original substance
What does manufacture mean
synthesis - creating a new substance from combining raw materials and components
What is R v Rua
form of process which changes the original substance into a controlled drug
What are two case law associated with all drug offences
R v Strawbridge and Police v Emerali
What is R v Strawbridge
Knowledge of the drug is presumed unless there is evidence to the contrary. Crown do not have to prove knowledge.
In liabilities still write knowledge if there is evidence
What is Police v Emerali
Usable Quantity
The serious offence of possession of a narcotic does not extend to a minute or useless residue of the substance
What act and section are lists of a controlled drug found
Section 2 MODA75
Schedule 1 for Class A
Schedule 2 for Class B
Schedule 3 for Class C
What are the elements for s6(1)(c) MODA75
Supply
OR
Administer
OR
Offer to Supply
OR
Offer to Administer
OR
Otherwise deal in
Any class A or class B controlled drug
To any other person
What does supply mean
Distribute, give or sell
What does distribution mean
Supply of drugs to multiple persons
What does give mean
to hand to over custody to a willing recipient
what does sell mean
Exchange of goods in return for valuable consideration
Do you have to physically hand over the goods to complete give
No, you can passively permit someone to help themselves to a cache of drugs
What does administer mean
To direct and cause a drug to be taken into the system of another person. With consent or without
What is R v Knox
if someone deposits drugs with you for safekeeping then you are still having possession with intent to supply if you intend to return the drugs to them later
What are the two things you must prove in an offer to supply
communication of the offer (actus reus)
the intention that the other person believed the offer to be genuine (mens rea)
What is the case law regarding offers to supply
R v During and R v Brown
What is R v During
The intimation from one person to another that they are ready to supply on request
What is R v Brown
The intimation was made with the intention that it is understood to be genuine
4 ways
offer to supply drugs on hand
offer to supply drugs to be procured at a future date
offer a drug that mistakenly believes he can supply
offers to supply a drug deceitfully, knows he won’t supply
What are the elements of Supplying class C to person under 18 years 6(1)(d) MODA75
Supply
OR
Administer
OR
Offer to supply
OR
Offer to administer
Any class C controlled drug
to any person under 18 years of age
What is R v Forrest and Forrest
The prosecution should adduce the best evidence possible when proving age of a victim
What are the elements for Sell/offer to sell a Class C controlled drug to a person 18+
Sell
OR
Offer to sell
any class C controlled drug
To any person of or over 18 years of age
What are the elements of possession of a controlled drug for supply 6(1)(f) MODA75
Has in his possession
Any controlled drug
for the purposes set out in paragraph (c), (d), (e) of s6(1) MODA75
What does control mean
to exercise a dominating or authoritative influence over something
What case law relates to drug possession and explain it
R v Cox
Possession involves two elements, physical and mental
Physical - actual or potential control or custody
mental - knowledge and intent
explain the two parts of the mental part of possession
knowledge the controlled drug is in their possession and an intent to exercise possession
explain the two options of the physical part of possession
actual control or custody - the drug is on their person or in their home, vehicle etc
potential control - the drug is in someone else’s possession on behalf
What are the four things the crown needs to prove regarding possession
knowledge the drug exists (is there)
knowledge that it is a controlled drug (characteristics)
some degree of control over it (actual or potential)
an intention to possess it (Collister/6(6)
Explain presumptive amount
Section 6(6) MODA1975 possession of and over certain amounts are presumed for supply unless they can prove otherwise
explain intent in drug possession and how it is proven
commit a deliberate act to get a specific result - proven by circumstantial evidence (R v Collister) and presumptive amount 6(6) MODA1975
According to S2(1A) MODA75 what are the presumptive amounts for meth, coke, heroin, MDMA, cannabis oil, cannabis plant
meth - 5g
coke - 0.5g
heroin - 0.5g
MDMA - 5g
cannabis oil - 5g
cannabis plant - 1oz(28g) or 100 cigarettes
Explain chain of causation
a connection between the actions of the defendant and final consequence must exist
What are five statutory defences listed in the CA1961
Infancy
Insanity
Compulsion
Defence of self or others
Defence of property
What are the six common law defences
Intoxication
Sane Automatism
Mistaken
Necessity
Consent
Impossibility
What is conspiracy
an agreement between two or more persons to commit an offence
in regard to conspiracy, what is an agreement
follow a course of conduct, plot or plan
is the agreement in conspiracy an act?
yes, is it is the actus reus, doesn’t need to carry out any related tasks
Can you charge someone with conspiracy if other parties are not identified
yes, R v White
If any part of the offence is planned to occur in NZ is the conspiracy deemed to have occurred in NZ if parties involved are overseas?
Yes
What does the judge decide regarding attempts
If the defendant has left the preparation stage and is trying to effect completion of the offence
Can a person be charged with attempts if the offence was physically impossible to commit
yes
What are the two factors for proximity in regard to attempts
Has the offender done anything more than getting himself in position to embark on an attempt
has the offender commenced execution
What are four ways someone can be party to an offence under s66(1) CA1961
actually commits the offence
does or omits any act in aiding a person
abets
incites, counsels, procures
What do you need to prove regarding party to an offence
the identity of the offender
the offence has been successfully committed
actually commits the offence
does or omits any act
abets
incites, counsels, procures
What is probable consequence
one offender must actually foresee the likelihood of their co-offender committing another offence while in the commission of the original offence
What is an accessory after the fact?
knowing any person to have been party to an offence
receives, comforts or assists that person or tampers with or actively suppresses evidence…. in order to enable to escape after arrest or avoid arrest or conviction
What is CADD
Concealed
Altered
Damaged
Destroyed
What is the definition of consent
A conscious and voluntary agreement to something proposed or desired by another
What are the elements for Kidnapping s209(1)(a)
Unlawfully
Takes away
OR
Detains
Any person
Without their consent
OR
With consent obtained by fraud or duress
with intent to hold him or her for ransom or service
What are the elements for Kidnapping s209(1)(b)
Unlawfully
Takes away
OR
Detains
Any person
Without their consent
OR
With consent obtained by fraud or duress
With intent to cause him or her to be confined or imprisoned
What are the elements for Kidnapping s209(1)(c)
Unlawfully
Takes away
OR
Detains
Any person
Without their consent
OR
With consent obtained by fraud or duress
With intent to cause him or her to be sent or taken out of NZ
Explain R v Crossan in relation to Kidnapping/Abduction
Detaining and Taking away are two distinct offences
What is the definition of taking away as per case law
R v Wellard
Deprivation of liberty coupled by carrying away from a place the victim wants to be.
What is the definition of detaining as per case law
R v Pryce
keep in confinement or custody
What is consent obtained by fraud
deceiving the victim into agreeing to a proposition by misrepresenting facts or intentions
What is consent obtained by duress
consent after applied force or threats of applied force, implied or expressed
What is case law regarding consent relating to kidnapping and abduction
R v Cox
Consent must be full voluntary, free and informed, voluntarily and consciously given by a person in a position to form a rational judgement
What is the case law relating to intent for kidnapping abduction
R v Mohi
The offence is committed at the time of the taking just as long as at that moment there is the necessary intent
What is unlawfully
Without lawful justification or excuse
what is a ransom
a sum of money requested or paid for the release of a person being held captive
what is confinement
restricting someone to a geographical area, exercising control and influence over victim
What are the elements for Abduction s208(1)(a)
Unlawfully
Takes away
OR
detains
any person
without their consent
OR
With consent obtained by fraud or duress
With intent to go through a form of marriage or civil union
What are the elements for Abduction s208(1)(b)
Unlawfully
Takes away
OR
detains
Any person
Without their consent
OR
With consent obtained by fraud or duress
With intent to have sexual connection with that person
What are the elements for Abduction s208(1)(c)
Unlawfully
Takes away
OR
detains
Any person
Without their consent
OR
With consent obtained by fraud or duress
With intent to cause the person to go through a form of marriage or civil union or have sexual connection with any other person
What is sexual connection
Sexual connection is connection effected by the introduction to the genitalia or anus of a person, except for genuine medical purpose,
A body part of another person
An object held or manipulated by another person
connection between the mouth or tongue of oner person and the genitalia or anus of another person
a continuation of a kind as set out in paragraphs a and b
what is the offence for s228(1)(a) and its elements
Dishonestly taking a document
Dishonestly
Without claim of right
takes or obtains
any document
with intent to obtain any
Pecuniary advantage
valuable consideration
service
property
what is the offence for s228(1)(b) and its elements
Dishonestly
Without claim of right
uses or attempts to use
any document
with intent to obtain any
property
service
pecuniary advantage
valuable consideration
What does dishonestly mean
no belief at the time of act or omission of expressed or implied consent by a entitled person
What is claim of right
a proprietary or possessory right to the item at the time of the act
can be based on mistake and item must relate to the offence
what is takes
moving the item or causing the item to be moved
what is obtains
to retain for himself/herself, acquire
Explain Hayes v R regarding use of the doocument
a successful use of the document is as much use as an unsuccessful one
according to case law, what is a document
R v Misic
anything that can provides information, evidence or record
what is property
real or personal property
According to case law, what is service
R v Cara
anything of economic or financial benefit
According to case law, what is pecuniary advantage
Hayes v R, anything that enhances the defendant’s financial position
According to case law, what is valuable consideration
anything capable of being valuable consideration
What are the elements of s240(1)(a)
Obtains by Deception
By any deception
Without claim of right
Obtains
possession
OR
control over
OR
ownership
of any
service
liability
property
valuable consideration
pecuniary advantage
benefit
directly or indirectly
what are the elements for 240(1)(b)
incurs by deception
By any deception
Without claim of right
in incurring any
debt
liability
obtains credit
What are the elements for 240(1)(d)
Causes loss by deception
By any deception
Without claim of right
causes loss to any other person
What is deception
an omission or false representation of the facts along with an intent to deceive
What are the three things required to prove intent to deceive
an intent to deceive
representation by the defendant
representation was false, the defendant knew or was reckless
What is a debt
money owed to another person
what is a liability
legally enforceable financial obligation to pay
what is a loss
direct financial detriment to the victim
what is title
the legal right to property
can a thief ever get title
No
What is voidable title
title obtained by deception, duress, fraud or misrepresentation
what is needed to void title
judicial determination
What are the elements for S198(1)(a)
Discharge firearm with intent
With intent to do GBH
Discharges any
firearm
airgun
any similar weapon
At any person
What are the elements for s198(1)(b)
with intent to do GBH
sends any person
OR
delivers to any person
OR
puts in any place
any explosive on injurious substance
What are the elements of s198B(1)(a) CA 1961
Commision of a crime with firearm
In committing any imprisonable offence
uses any firearm
What are the elements of s198B(1)(b)
Commission of crime with firearm
while committing any imprisonable offence
has any firearm with him or her
in circumstances prima facie show an intention to use it in connection with that imprisonable offence
What are the elements of s198A(1)(a)
uses any firearm in any manner whatever
against any constable, prison officer or traffic officer
acting in the course of his or her duty
knowing that, or being reckless whether or not that the person is a constable, traffic officer or prison officer, so acting
what are the elements for s198A(1)(b)
uses any firearm in any manner whatever
with intent to resist the lawful arrest or detention of himself, herself or any other person
What are the max prison terms for the 6 firearms offences
s198(1)(a) 14 years
s198(1)(b) 14 years
s198A(1)(a) 14 years
s198A(1)(b) 10 years
s198B(1)(a) 10 years
s198B(1)(b) 10 years
what is the case law for GBH
DPP v Smith
Bodily harm is self-explanatory. Grievous means no more or no less than really serious.
what is the case law in regards to discharge firearm
R v Pekepo
An intention to shoot a specific person or persons must be established
What is the case law regarding bodily harm, two names
R v McArthur and R v Donovan
Hurt or injury calculated to interfere with the health and comfort of the victim. Need not be permanent but must be more than trifling or transitory.
What is the case law relating to recklessness
Cameron v R
recklessness is established if the defendant recognizes the real possibility that
his or her actions could bring about the proscribed result
the proscribed circumstances exist
In regard to that risk, his or her actions are unreasonable
what is the case law relating to any manner whatever
Police v Parker
use in any manner whatever is anything short of firing the weapon
What is the case law relating to having a firearm
R v Kelt
physical link and immediate control over the weapon
What is the case law relating to prima facie
Police v Tuli
sufficient to show intent in absence of evidence to the contrary
What does prima facie mean
on the face of it
