Module 10: Violence Flashcards

1
Q

What is Doctrine of transferred malice?

A

If the defendant has a mens rea of a particular crime, causes the actus reus of the same crime, they are guilty even though the result may be unintended, i.e. if the victim differs from the one intended. For example the accused assaulted another man with his belt but in addition to striking the intended victim, the belt struck a woman standing nearby. Although there was no intention to hit the woman, the doctrine of transferred malice applied and accused was also convicted of assaulting the woman.

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2
Q

Where is your power of arrest from?

A

Good cause to suspect that the offence has been committed and arrest is authorised under section 315 of the Crimes Act 1961 or section 39(1) of the Summary Offences Act 1981.

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3
Q

What is defence of consent in relation to an assault?

A

As a general rule a person can consent to the infliction of force that does not cause bodily harm.

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4
Q

What is implied consent in relation to assault?

A

People commit technical assaults every day when they touch, shake hands, kiss or hug. When they do these things, they assume the other person will consent. This is called implied consent.

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5
Q

Can a person consent to harm?

A

No, In R v Lee which related to manslaughter charges resulting from an exorcism it was held that no one may consent to the infliction of death upon themselves.

A person cannot consent to being assaulted by someone who intends harm. For example, a person inflicting harm for the sake of the victim’s sexual gratification may commit an assault, even if the victim consents.

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6
Q

What is the key difference between Migrant Smuggling and People Trafficking?

A

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.

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7
Q

The investigative approach options for this crime-type broadly fall into three categories
What are they?

A

Reactive investigation; Proactive investigation and Disruption investigation.

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8
Q

What is the penalty for Trafficking people by means of coercion or deception?

A

20 years imprisonment or a fine not exceeding $500.000 or both.

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9
Q

Do you need approval from the Attorney General to prosecute for offences under 98C and 98D Crimes Act 1961.

A

Yes but you do not need approval to arrest and appose bail.

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10
Q

What is the statutory defence to a charge of blackmail under section 237(2), Crimes Act 1961)?

A

A belief by the person making the threat that they are entitled to the benefit or to cause the loss is not in itself a defence to a charge under Section 237(1) unless the threat is, in the circumstances, a reasonable and proper means for effecting his/her purpose.

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11
Q

Under Section 210A Crimes Act 1961, state the statutory defence for Kidnapping
(s. 209) and Abduction (s 210)?

A

A person who claims in good faith a right to the possession of a young person under the age of 16 years cannot be convicted of an offence against this section because he or she gets possession of the young person. - Crimes Act 1961 s210A

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12
Q

What was held in R v Crossan in relation to Section 191 Crimes Act 1961?

A

Incapable of resistance includes a powerlessness of the will as well as a physical incapacity.

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13
Q

For a charge of Discharging a Firearm with intent to do Grievous bodily harm, the ‘firearm’ can include airgun. Explain your answer?

A

Discharging firearm or doing dangerous act with intent

(1) Every one is liable to imprisonment for a term not exceeding 14 years who, with intent to do grievous bodily harm,—
(a) Discharges any firearm, airgun, or other similar weapon at any person; or
(b) Sends or delivers to any person, or puts in any place, any explosive or injurious substance or device; or
(c) Sets fire to any property

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14
Q

What was held in R v Skivington?

A

Larceny or theft is an ingredient of robbery, and if the honest belief that a man has a claim of right defence to larceny, then it negatives one of the ingredients in the offence of robbery, without proof of which the full offence cannot be made out.

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15
Q

What factors elevate the offence of Robbery Section 234 Crimes Act 1961 to Aggravated Section 235 Crimes Act 1961?

A
  • GBH
  • Togther with
  • Armed with offensive weapon
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16
Q

John waits down the road as a look out. Bill runs in and uses violence to steal smokes! Although they have acted jointly in the offending why is it not an aggravated robbery by being together with?

A

Not physically present together during the robbery or assault. R v Joyce.

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17
Q

Can a finger up a jersey pretending to be a gun be defined as an instrument or an item appearing to be a offensive weapon. Explain your answer referring to case law?

A

No, what is possessed must be under the definition of a thing, a person hand or fingers are not a thing. R v Bentham

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18
Q

What was held in R v Crossan with regard to “taking away and detaining”?

A

Taking away and detaining are two separate and distinct offences, the first is taking the victim away and the second is detaining them.

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19
Q

Define Consent as set out in R v Cox?

A

Consent must be full, voluntary, free and informed … freely and voluntarily given by a person in a position to form a rational judgement.

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20
Q

List the three intents defined under Kidnapping Section, 209 (a),(b)and (c) of the Crimes Act 1961?

A

(a) With intent to hold for him or her for ransom or to service or
(b) With intent to cause him or her to be confined or imprisoned or
(c) With intent to cause him or her to be sent or taken out of New Zealand

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21
Q

For a conviction under s210 (1) of the Crimes Act 1961 the Crown must prove what?

A

The defendant took, enticed or detained a person under the age of 16 years;

(a) The taking, enticement or detention was deliberate or intentional;
(b) The taking, enticement or detention was from a person who had lawful care of the young person;
(c) The defendant knew the other person had lawful care of the young person;
(d) The taking, enticement or detention was “unlawful”; and
(e) 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.

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22
Q

Can a young person consent to being taken away for the purpose of Section 209 -210 Crimes Act 1961?

A

They cannot consent to being taken away. Section 210(3) Crimes Act 1961

For a the purposes of subsection (1) and (2) it is immaterial whether the offender believes the young person consents, or is taken or goes or is received at his or her own suggestion.

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23
Q

What is R v Joyce?

A

Crown must establish that at least two persons were physically present at the time the robbery was committed or assault occurred.

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24
Q

What is R v Crossan? (In relation to by any violent means renders capable of resistance)

A

‘Incapable of resistance’ includes a powerlessness of the will as well as a physical incapacity.

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25
Q

What is an accusation?

A

The word “accusation” will normally refer to an allegation that the defendant person is guilty of criminal conduct.

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26
Q

Abduction - Father takes daughter 15 yrs (who consents) but mum has court ordered custody. Still criminal?

A

Yes

27
Q

Two fold test for intent. What is R v Tihi?

A

In addition to one of the specific intents outlined in 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”.

28
Q

What is R v Harney?

A

“[Recklessness involves] foresight of dangerous consequences that could well happen, together with an intention to continue the course of conduct regardless of the risk.”

29
Q

What is R v Sturm?

A

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.

30
Q

What is the doctrine of transferred malice - R v Hunt?

A

Malice against the person cut is not essential; general malice is sufficient.

31
Q

Define injurious substance and provide an example?

A

The term injurious substance or device covers a range of things capable of causing harm to a person; for example a letter containing Anthrax powder that is mailed to a political target.

32
Q

What does R v Waters say a wound is?

A

A wound is the breaking in the continuity of the skin with the flow of blood and can be internal or external.

33
Q

What circumstantial evidence do you need for proof of intent for a serious assault? 3 things

A

1 - The offenders actions and words before, during and after the event.
2 - The surrounding circumstances.
3 - The nature of the act itself.

34
Q

What does R v Kelt say about having a firearm with him?

A

Having a firearm with him requires a very close physical link and a degree of immediate control over the weapon.

35
Q

Can a charge under Section 198A Crimes Act 1961 stand up if a Police officer was trespassing at the time?

A

Not acting in the course of his lawful duty therefore negating one of the ingredients.

36
Q

Jim threatens to give John the bash unless he puts $1000 in his letterbox. What is the offence? Explain your answer.

A

Robbery - threat to extort the property stolen. Money = property.

37
Q

A child in the custody of her mother has an argument with her and rings her dad telling him to come and pick her up, he does. What offence has he committed?

A

Abduction of a young person under 16 years.

38
Q

Explain recklessness and R v Harvey?

A

Acting recklessly involves consciously and deliberately taking an unjustifiable risk.

Recklessness involves foresight of dangerous consequences that could well happen together with an intention to continue the course of conduct regardless of the risk.

39
Q

What are the intents of blackmail Section 237(1) CA 1961?

A

With intent to obtain any benefit or cause loss to any person.

40
Q

What are the 3 main investigative approaches for people trafficking and migrant smuggling?

A

Reactive Investigation - victim lead, initiaed from victim approaching police.
Proactive Investigation - Police led, locate & prosecute trafficers.
Disruptive Investigation - Appropriate where risk to victim demands an immediate response.

41
Q

GBH not limited to immediate harm including R v Mwai?

A

GBH is not limited to immediate harmful consequences of the offenders action. HIV follows a steady relentless progression to AIDS then death which is GBH.

42
Q

Explain R v Taisalika in relation to intoxication and intent?

A

“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.”

The loss of memory “intoxication” of past events is not the same as lack of intent at the time.

43
Q

Proving intent in serious assault cases? 8 points

A
Prior Threats
Evidence of Premeditation
The use of a weapon
Whether any weapon used was opportunistic or purposely brought
The number of blows
The degree of force used
The body parts targeted by the offender
The degree of resistance or helplessness of the victim
44
Q

What is the difference between section 188(1) and 188(2)?

A
1 = intend to cause GBH and outcome GBH
2 = intend to injure and outcome GBH
45
Q

What is R v Crossan in relation to taking away and detaining?

A

Taking away and detaining are two separate and distinct offences, the first is taking the victim away and the second is detaining them.

46
Q

What is Secondary intent?

A

R v Wentworth - Intention is normally taken to embrace both ultimate (desire) consequences and the incidental (undesired but foreseen) consequences.
eg blow up plane for insurance but kills everyone on plane.

47
Q

Define GBH, wound, maims, disfigures?

A

GBH - Grevious bodily harm means harm that is really serious.
DPP v Smith - Bodily harm need no explanation and grevious means no more or no less.

wound - R v Waters - A wound is a breaking in the continuity of the skin with the flow of blood and can be internal or external.

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.

Disfigures - To deform, deface, to mar or alter the figure or appearance of a person.

R v Rapana & Murray - Disfigurement does not necessarily involve permanent injury or damage.

48
Q

What was held in R v Lapier?

A

Robbery is complete the instant the property is taken, even if the thief has possession only momentarily.

49
Q

What are the 3 intents of kidnapping?

A

With intent to:
Hold him/her for ransom or service.
Cause him/her to be confined or imprisoned.
Cause him/her to be sent or taken out of NZ.

50
Q

What must the prosecution prove against someone who abducts a young person under Section 210(2)? 4 points

A

The defendant received a person under 16.
The receiving was deliberate or intentional.
Defendant knew the young person had been unlawfully taken, enticed away or detained by another from a person who had lawful custody.
The defendant intended by reason of the receiving to deprive the person with lawful care of the young person.

51
Q

What was held in R v Joyce?

A

Two persons were physically present together at the time of the robbery was committed or assault occurred.

52
Q

What are the ingredient of Section 188 of the Crimes Act 1961?

A

(1) - With intent to cause GBH to anyone, wounds, maims, disfigures or causes GBH to any person. (14 years)
(2) - With intent to injure anyone, or with reckless disregard for the safety of others, wounds, maims, disfigures, or causes GBH to any person. (7 years)

53
Q

What are the ingredients of Section 189 of the Crimes Act 1961?

A

(1) - With intent to cause GBH to anyone, injures any person. (10 years)
(2) - With intent to injure anyone, or with reckless disregard for the safety of others, injures any person.

54
Q

What are the ingredients of Section 191(1) of the Crimes Act 1961?

A

(1) Liable to 14 years -
a) to commit or facilitate the commission of any imprisonable offence. or
b) To avoid the detection of himself or of any other person in the commission of any imprisonable offence.
c) To avoid arrest or facilitate flight of himself or any other person upon the commission or attempted commission of any imprisonable offence.
wounds, maims, disfigures, causes GBH, stupefies, renders unconscious or by any other violent means renders incapable of resistance.

55
Q

What is Section 192 of the Crimes Act 1961?

A

Aggravated assault, same as 191 but just assault (not as serious outcome).

56
Q

What is Section 198 of the Crimes Act 1961?

A

(1) - Everyone is liable to 14 years who:
a) Discharges any firearm, air gun, or other similar weapon at any person or;
b) Sends or delivers to any person, or puts in any place, any explosive or injurious substance or device.
c) Sets fire to any property.

57
Q

What is Section 198A of the Crimes Act 1961?

A

(1) Liable for 14 years if:
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 traffic officer or a prison officer.

(2) Liable for 10 years if:
uses any firearm in any manner whatever with intent to resist lawful arrest or detention of himself or herself or of any other person.

58
Q

What is Section 198B of the Crimes Act 1961?

A

(1) Everyone is liable to 10 years imprisonment who:
a) in committing any imprisonable offence, uses any firearm or;
b) While committing any imprisonable offence, has any firearm with him or her in circumstances that prima facie show an intention to use it in connection with the imprisonable offence.

59
Q

What are the ingredients of Blackmail Section 237(1) of the Crimes Act 1961?

A
  1. Any person
  2. Threatens (expressly or by implication)
  3. To make an accusation against any person (living or dead) or
    to disclose something about any person or
    to cause serious damage to property or endanger the safety of another person
  4. With intent to cause the person whom the threat is made to act in accordance with the will of the person making the threat
  5. and to obtain any benefit or
    cause loss to any other person.
60
Q

What are the ingredients to Demanding with intent to steal Section 239 of the Crimes Act 1961?

A

(1) - liable to 14 years if:
Without claim of right, by force or with any threat, compels any person to execute, make, accept, endorse, alter, or destroy any document capable of conferring a pecuniary advantage with intent to obtain any benefit.

61
Q

What is R v Donavan?

A

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.

62
Q

What is R v Wait?

A

Proof of the commission of the crime by the person whose arrest or flight he intends to avoid or facilitate.

63
Q

What is R v Pekapo?

A

A reckless discharge of a firearm in the general direction of a passer by is not sufficient proof, there must be an intention to shoot.