Multi Choice

Question 1

What constitutes recklessness?

Answer 1

R v Harney
“Recklessness means the conscious and deliberate taking of an unjustified risk. In New Zealand it involves proof that the consequence complained of could well happen, together with an intention to continue the course of conduct regardless of risk.”

Question 2

What was held in R V Tihi?

Answer 2

R v Tihi
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”.

Question 3

What is the age for a charge of People Smuggling?

Answer 3

Any Person

Question 4

Jim sees billy with a new iphone which he wants to buy. He tells Billy to give him the phone to play with or else he will punch him in the head. Billy gives him the phone and runs away. What is Jims criminal liability?

Answer 4

Jim has committed the offence of Robbery.

Question 5

What was held in R V Crossnan?

Answer 5

R v Crossan
Taking away and detaining are “separate and distinct offences. The first consists of taking [the victim] away; the second of detaining her. The first offence was complete when the prisoner took the woman away against her will. Then, having taken her away, he detained her against her will, and his conduct in detaining her constituted a new and different offence.”

Question 6

In relation to any violent means, what was held in R v Crossan S191 Crimes Act

Answer 6

R v Crossan, Incapable of resistance includes a powerlessness of the will as well as a physical incapacity. The term violent means is not limited to physical violence and may include threats of violence depending on the circumstances

Question 7

Define ‘takes away’ and ‘detains’

Answer 7

“Taking away” and “detaining” are two separate and distinct acts giving rise to two different offences, and the prosecution should specify which of the acts is being alleged. Where there is evidence of both taking away and detaining, two charges should be filed.

R v Wellard
The essence of the offence of kidnapping is the “deprivation of liberty coupled with a carrying away from the place where the victim wants to be”.

Question 8

A child in the legal custody of her mother has an argument with her mother. She calls her father and tells him to pick her up. He agrees and pick hers up…

What offence has the father committed?

Answer 8

Abduction of a child as he has deprived the mother of possession. Section 210.

Question 9

What is held in R V Joyce?

Answer 9

R v Joyce
“The Crown must establish that at least two persons were physically present at the time the robbery was committed or the assault occurred.”

Question 10

In relation to blackmail an accusation is - A criminal allegation against a person.

Answer 10

The word “accusation” will normally refer to an allegation that the defendant person is guilty of criminal conduct. It will not require that any formal charges have been filed against the person (since clearly charges could not be brought against a person who is dead, nor that the accusation be one that would involve proceedings before a judicial tribunal).

Question 11

The difference between 188 & 189 – Victim’s outcome/injuries

Answer 11

The difference between S188 and S 189 is the outcome/injuries suffered by the victim. Under s 188 the outcome/injuries involves wounds, maims, disfigures, or GBH and under s 189 the outcome/injuries involves just injury

Question 12

The difference between migrant smuggling and people trafficking:

Answer 12

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.

Question 13

Explain the difference between Sec 188 (1) and 188(2):

Answer 13

s 188, subsections (1) and (2) both relate to actions that result in wounding, maiming, disfiguring or GBH to the victim. the outcome is the same in both; the difference between the two subsections is the offender’s intent.

S 188 (1) the offender intends to cause GBH.

S 188 (2) the offender intends to injure the victim or has reckless disregard for the safety of others but the outcome is a greater degree of harm than anticipated.

Question 14

A woman befriended an old lady, the woman finds out that the old lady has a lot of cash in her bank account. She demands the lady to give up the pin number or she’ll tell her family not to have anything to do with her anymore:

What offence has occurred?

Answer 14

Demands with intent to steal

Question 15

Detain and Takes away are different therefore prosecution must specify which one is being use:

Answer 15

The prosecution must determine which element to use

Question 16

What is circumstantial evidence regarding serious violence:

Answer 16

• the offender’s actions and words before, during and after the event
• the surrounding circumstances
• the nature of the act itself.
• 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 (eg the head)
• the degree of resistance or helplessness of the victim (eg unconscious).

Question 17

What is the difference between Wounds, Maims Disfigure and GBH

Answer 17

Wounds maims and disfigure relate to type of injury, GBH refers to degree of seriousness

Question 18

What is a claim of right?

Answer 18

‘Claim of right’ in relation to any act, means 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, although that belief may be based on ignorance or mistake of fact or of any matter of law other than the enactment against which the offence is alleged to have been committed

Question 19

What is Doctrine of Transferred Malice

Answer 19

It is not necessary that the person suffering the harm was the intended victim. Where the defendant mistakes the identity of the person injured, or where harm intended for one person is accidentally inflicted on another, he is still criminally responsible, under the Doctrine of Transferred Malice, despite the wrong target being struck.

This principle was applied in R v Hunt , where the defendant intended to stab the property owner, but accidentally wounded the man’s servant instead.

Question 20

Definition of injurous substance and device.

Answer 20

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.

Question 21

What was held in R V Skivington.

Answer 21

R v Skivington

“Larceny [or theft] is an ingredient 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.”

Question 22

There are three intents for kidnapping , parts A B and C. What are they

Answer 22

(a) with intent to hold 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.

Question 23

What questions must you ask when you receive information from a CHIS in relation to a robbery.

Answer 23

• Has the human source supplied reliable information previously
• Has the human source information come from more than one source
• Have the staff members who work on the premises of the intended robbery
noted suspicious people in the vicinity
• Does the company deal with large amounts of money, drugs or valuable
goods
• Can you corroborate the information received as correct

Question 24

What was found in the case of R V Waters.

Answer 24

R v Waters
“A breaking of the skin would be commonly regarded as a characteristic of a wound. The breaking of the skin will be normally evidenced by a flow of blood and, in its occurrence at the site of a blow or impact, the wound will more often than not be external. But there are those cases where the bleeding which evidences the separation of tissues may be internal.”

Question 25

What is the the statutory defence for Blackmail. 
Section 237(2) provides a defence to a charge of blackmail.

Answer 25

In R v Marshall 57the Court of Appeal said “an accused can avoid liability where he or she believes in an entitlement to obtain the benefit or to cause the loss, and, objectively viewed, the threat is a reasonable and proper means for bringing about that obtaining or that causing of the loss. It will be for the jury to determine whether the means were reasonable and proper:

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.

If the defence is raised, the court is required to determine whether the means were reasonable or proper given the circumstances of each case.

Question 26

Would a charge under 198A(1) fail if the police officer was trespassing? explain your answer

Answer 26

Yes.

Under s198A the officer must be “acting in the course of his or her duty”.

Police duties arise under statute and common law.

The term lawful act, is expected of a constable on duty but may also include officers with a professional obligation while off duty.

An officer who is acting unlawfully, for example using excessive force during an arrest, interfering with a person’s liberty without legal justification, or trespassing on private property without authority, cannot be said to be “acting in the course of his or her duty”.

Question 27

List the ingredients for demanding with intent to steal.

Answer 27

Demanding with intent to steal
Section 239(1),  CA 1961 ,
Penalty: 14 years 

• 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.

Question 28

List the ingredients for demanding with menaces.

Answer 28

Demanding with menaces,
Section 239(2) Crimes Act 1961,
Penalty: 7 years

• with menaces or by any threat,
• demands any property from any persons
• with intent to steal it.

Question 29

Definition Section 236(2) Assault with intent to rob?

Answer 29

Assault with intent to rob
Section 236(2) CA 61
Penalty: 7 years

• assaults any person
• with intent to rob that person or any other person

Question 30

The intents of blackmail.

Answer 30

(a)to cause the person to whom the threat is made to act in accordance with the
will of the person making the threat; and

(b) to obtain any benefit or to cause loss to any other person

Question 31

What are the three main investigative approach options for people trafficking and migrant smuggling.

Answer 31

Reactive investigation: Victim led and often initiated by an approach to Police by the victim or another person acting on behalf of the victim.

Proactive investigation: Police led. A combination of standard investigation techniques supplemented by intelligence resources to identify and locate the traffickers, gather evidence and instigate proceedings against them.

Disruptive investigation: Appropriate in circumstances where the level of risk to the victim demands an immediate response, and pro-active or reactive approaches are not practicable options.

Question 32

Definition of ‘stupefies’ (R v Sturm, section 191 CA 61).

Answer 32

In R v Sturm19 the defendant was convicted after administering alcohol, Ecstasy and other drugs to a number of male victims in order to dull their senses sufficiently to enable him to sexually violate them.

“stupefy” means to cause an effect on the mind or nervous system of a person, which really seriously interferes with that person’s mental or physical ability to act in any way which might hinder an intended crime.”

“stupefies” does not only describe a situation where a person is rendered senseless or unconscious but may also include circumstances where the administration of drugs has led to dis-inhibition and stimulated uncharacteristic behaviour.

Question 33

• What was found in the case (R v Mwai).

Answer 33

In R v Mwai7 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.
Expert medical evidence adduced at the time, that HIV follows “a steady relentless progression” leading to AIDS and then inevitably to death, was sufficient to establish that the defendant had caused grievous bodily harm.
Now, with advances in modern medicine, HIV doesn’t always lead to AIDS, the expert medical evidence adduced may have brought about a different outcome.
You need to be mindful that all that is required for the actus reus is an act causing grievous bodily harm. The link between cause and effect is a physical one, not one of time. Usually of course the effect is instant: a blow causes a wound. But it is not necessarily so. The consequences may be delayed, but they are consequences nonetheless.

Question 34

R v Taisalika in relation to intoxication and intent

Answer 34

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.

In R v Taisalika, the defendant crashed a party and in an unprovoked attack struck another party-goer on the side of the head with a glass. The glass shattered, causing a serious gash to the victim’s temple and multiple cuts to his face.
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.

Question 35

Define - GBH, Wounds, Maims and Injures

Answer 35

GBH: Grievous bodily harm can be defined simply as “harm that is really serious”.

DPP v Smith
“Bodily harm” needs no explanation and “grievous” means no more and no less than “really serious”.

Wound:
R v Waters
“A breaking of the skin would be commonly regarded as a characteristic of a wound. The breaking of the skin will be normally evidenced by a flow of blood and, in its occurrence at the site of a blow or impact, the wound will more often than not be external. But there are those cases where the bleeding which evidences the separation of tissues may be internal.”

Maims: Will involve mutilating, crippling, or disabling part of the body so the victim is deprived permanently of the use of a limb or one of the senses. Must have a degree of permanence.

Disfigures: Means to deform or deface, to mar or alter the figure or appearance of a person

R v Rapana and Murray
the word “disfigure” covers “not only permanent damage but also temporary damage.

Injures:
Section 2 CA 61,
To injure means to cause actual bodily harm.

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.

Question 36

What was held in R V Lapier

Answer 36

R v Lapier

Robbery is complete the instant the property is taken, even if possession by the thief is only momentary.

Question 37

What are the ingredients of Using a firearm against a law enforcement officer Section 198A, Crimes Act 1961 (14 years)

Answer 37

Using a firearm against a law enforcement officer Section 198A, Crimes Act 1961
Penalty: 14 years

.1 Uses any firearm in any manner whatever
.2 against any constable, or any traffic officer, or any prison officer,
.3 acting in the course of his or her duty
.4 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.

Question 38

Give an example of a non immediate harmful consequence GBH and support answer with case law
R V MWAI

Answer 38

Expert medical evidence that HIV follows “a steady relentless progression” leading to AIDS and then inevitably to death was sufficient to establish that the defendant had caused grievous bodily harm. All that is required for the actus reus is an act causing grievous bodily harm.

Question 39

What are the factors that increase the charge from a robbery to being aggravated:

Answer 39

a) Robs any person and, at the time of, or immediately before or immediately after, the robbery causes GBH to any person, OR
b) being together with any other person, robs any person OR
c) being armed with an offensive weapon, instrument or anything appearing to be such a weapon or instrument, robs any person

Question 40

• What must prosecution prove against someone who abducts a young person under Sec 210(2):

Answer 40

For a conviction under s 210(2) the Crown must prove that:

1. The defendant received a person under the age of 16 years;
2. The receiving was deliberate or intentional;
3. The defendant knew the young person had been unlawfully taken or enticed away or detained by another from a parent, guardian or other person having lawful care or charge of the him or her of the possession of that young person; and
4. The defendant intended by reason of the receiving to deprive a parent, guardian or other person having lawful care or charge of him or her of the possession of that young person.

Question 41

The “two fold” test relating to R v Tihi

Answer 41

1. 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
2. He or she intended to cause the specified harm, or was reckless as to that risk.

Question 42

Blackmail ingredients

Answer 42

Section 237, Crimes Act 1961
Blackmail

(1) Every one commits blackmail who threatens, expressly or by implication, to make any accusation against any person (whether living or dead), to disclose something about any person (whether living or dead), or to cause serious damage to property or endanger the safety of any person with intent—
(a) to cause the person to whom the threat is made to act in accordance with the will of the person making the threat; and
(b) to obtain any benefit or to cause loss to any other person.

Question 43

What is held in R v Cox (possession)

Answer 43

R v Cox
Possession involves two elements. The first, the physical element, is actual or potential physical custody or control. The second, the mental element, is a combination of knowledge and intention: knowledge in the sense of an awareness by the accused that the substance is in his possession; and an intention to exercise possession.

There must be evidence that the defendant not only had possession, in the sense that he or she knowingly had custody or control of a firearm, but also that it was at the time available and at hand for him or her to use while committing the imprisonable offence.

Question 44

Outlined the 2 specific types of intent

Answer 44

Deliberate act:
“Intent” means that act or omission must be done deliberately. The act or omission must be more than involuntary or accidental.

Intent to produce a result:
The second type of intent is an intent to produce a specific result. In this context result means “aim, object, or purpose”.

Question 45

Define dishonesty

Answer 45

Section 217, Crimes Act 1961

Dishonestly, in relation to an act or omission, means done or omitted without a belief that there was express or implied consent to, or authority for, the act or omission from a person entitled to give such consent or authority

Question 46

Define unlawfully

Answer 46

Without lawful justification, authority or excuse

Question 47

Define extort

Answer 47

To “extort” means “to obtain by violence, coercion or intimidation or to extract forcibly.”