General Question 01 Flashcards
Not limited to immediate harm - R v Mwai
In R v Mwai the defendant faced multiple counts in relation to two women who he infected with HIV, and several others whom he put at risk, through unprotected sex.
In affirming his conviction for “causing grievous bodily harm with reckless disregard for the safety of others”, the Court of Appeal held that section 188 is not limited to the immediate harmful consequences of the offender’s actions, such as external assault or injury from a blow of some kind.
Explain R v Taisalika in relation to intoxication and intent
Taisalika argued unsuccessfully that he had been so intoxicated he could not remember the incident, therefore he could not have had the necessary intent. The Court held that loss of memory of past events is not the same as lack of intent at the time.
R v Taisalika - The nature of the blow and the gash which it produced on the complainant’s head would point strongly to the presence of the necessary intent.
Bodily harm
“Bodily harm” in s188 includes really serious psychiatric injury identified as such by appropriate specialist evidence.
R v Donovan - 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.
Proving Recklessness
Acting “recklessly” involves consciously and deliberately taking an unjustifiable risk.
It must be proved not only that the defendant was aware of the risk and proceeded regardless
(a subjective test),
but also that it was unreasonable for him to do so
(an objective test).
R v Harney ..
Two-fold test for intent - Aggravated Wounding
In R v Tihi it was held that in proving an offence against section 191, the prosecution must satisfy a ‘two-fold’ test for intent:
- The defendant intended to facilitate the commission of an imprisonable offence (or one of the other intents
specified in paras (a), (b) or (c), and - He or she intended to cause the specified harm, or was reckless as to that risk.
R v Tihi -
In addition to one of the specific intents outlined in Sec 191(1) paragraphs (a), (b) or (c), “it must be shown that the offender either meant to cause the specified harm, or foresaw that the actions undertaken by him were likely to expose others to the risk of suffering it.”
R v Skivington
“Larceny or theft is an element 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 elements in the offence of robbery, without proof of which the full offence is not made out.”
Difference between people smuggling and trafficking
Migrant smuggling involves a person who has freely consented to be brought into New Zealand as an illegal immigrant and is not subjected to coercion or deception.
People trafficking involves a person who is brought into New Zealand by means of coercion and/or deception. People are often trafficked in order to exploit them in the destination country, e.g. as forced labour, for removal of their organs or most commonly, for sexual exploitation.
The differences between the two offence types are:
• consent
• the purpose of the travel or movement
• the relationship between the person moved and the people enabling the movement
• violence, intimidation or coercion
• liberty
• profit.
Using firearm against law enforcement officer - Section, Ingredients, case law
Section 198A(1) Crimes Act 1961 - 14 Yrs
- Every one who
- Uses any firearm in any manner whatever
- Against any constable, or any traffic officer, or any prison officer, acting in the course of his or her duty
- Knowing that or
Being reckless whether or not, that person is a member of the Police or a traffic officer or a prison officer so acting.
R v Parker - Using a firearm in any manner is to contemplate a situation short of actually firing the weapon and to present a rifle too, I think, is the equivalent or means the same thing.
R v Swain
R v Harney (reckless only)
Aggravated Wounding - Section, Ingredients, case law
Section 191(1)(a) or (b) or (c) CA - 14 Yrs Imp 1. (a) With Intent to commit or facilitate the commission of any imprisonable offence OR
(b) With intent to avoid detection of himself or any other person in the commission of any imprisonable offence
(c) With intent to avoid arrest or facilitate flight of himself or any other person in the commission or attempted commission of any imprisonable offence
- -Wounds any person OR
- Maims any person OR
- Disfigures anyone OR
- Causes GBH to any person OR
- Stupefies any person OR
- Renders unconscious any person OR
- By any violent menas renders any person incapable of resistance
R v Tihi - (Addition to specific intents)
R v Wati (Proof of offence)
R v Taisalika - (GBH Intent) DPP v Smith (GBH) R v Waters - (Wounds) R v Rapana and Murray - (Disfigures) R v Sturm - (Stupefies) R v Crossan (Incapable of resistance)
Abduction - Section, Ingredients, case law
Section 208 (a) or (b) or (c) CA - 14 Yrs Imp
- Unlawfully
- Takes Away OR Detains
- A Person
- Without his or her consent OR With his or her consent obtained by fraud or duress.
- (a) With intent to Marry him or her OR
(b) With intent to have sexual connection with him or her OR
(c) Cause him or her to be married to or to have sexual connection with some other person.
R v Crossan - (Take away vs Detains) R v Wellard - (Essence of kidnapping) R v Pryce - (Detaining concept) R v Cox - (Consent) R v Mohi - (Taking away intent)
Wounding with intent to Injure - Section, Ingredients, case law
Section 188(2) CA - 7 Yrs Imp
- With intent to Injure anyone OR With Reckless disregard for the safety of others.
- Wounds OR Maims OR Disfigures OR Causes GBH.
- Any person
R v Taisalika - (GBH Intent) R v Harney (Recklessness) R v Waters - (Wounds) R v Rapana and Murray - (Disfigures) DPP v Smith (GBH)
Assault with intent to Rob - Being together with - Section, Ingredients, case law
Section 236(1)(c) CA - 14 Yrs Imp
- With intent to Rob
- Any Person
- Being together with any other person or persons
- Assaults
- That person or any other person
R v Galey - (Being together intent)
R v Joyce - (Persons present)
Kidnapping - Section, Ingredients, case law
Section 209 (a) or (b) or (c) CA - 14 Yrs Imp
- Unlawfully
- Takes Away OR Detains
- A Person
- Without his or her consent OR With his or her consent obtained by fraud or duress.
- (a) To hold him or her for ransom or to service OR
(b) To cause him or her to be imprisoned or confined OR
(c) To cause him or her to be sent or taken out of NZ
R v Crossan - (Take away vs Detains) R v Wellard - (Essence of kidnapping) R v Pryce - (Detaining concept) R v Cox - (Consent) R v Mohi - (Taking away intent)
For a conviction under s210(1) of the Crimes Act 1961 the Crown must prove
- The defendant took, enticed or detained a person under the age of 16 years
- The taking, enticement or detention was deliberate or intentional
- The taking, enticement or detention was from a person who had lawful care of the young person
- The defendant knew the other person had lawful care of the young person
- The taking, enticement or detention was “unlawful”and
- It was done with intent to deprive a parent, guardian” or other person having lawful care or charge of the young person” of possession of that young person.
