ABDUCTION - Section 208 (a) or (b) or (c) C.A.61 - PENALTY 14 years Unlawfully R V CHARTRAND Takes away OR Detains R V CROSSAN R v WELLARD R v PRYCE A person Without his or her consent OR With his or her consent obtained by fraud OR With his or her consent obtained by duress R v COX R v CORT PAO ON v LAU YIU LONG With intent to: R v MOHAN R v WAAKA R v MOHI (a) Marry him/her OR (b) Have sexual connection with him/her OR (c) Cause him/her to be married or have sexual connection with some other person

KIDNAPPING Section 209 (a) or (b) or (c) C.A.61 - PENALTY 14 years Unlawfully R V CHARTRAND Takes away OR Detains R V CROSSAN R v WELLARD R v PRYCE A person Without his or her consent OR With his or her consent obtained by fraud OR With his or her consent obtained by duress R v COX R v CORT PAO ON v LAU YIU LONG With intent to: R v MOHAN R v WAAKA R v MOHI (a) Hold him/her for ransom or service OR (b) Cause him/her to be confined or imprisoned OR (c) Cause him/her to be sent or taken out of New Zealand

Prereq All Flashcards by Samuel Me

ABDUCTION

ABDUCTION - Section 208 (a) or (b) or (c) C.A.61 - PENALTY 14 years

Unlawfully

R V CHARTRAND

Takes away OR Detains

R V CROSSAN

R v WELLARD

R v PRYCE

A person
Without his or her consent OR With his or her consent obtained by fraud OR With his or her consent obtained by duress

R v COX

R v CORT

PAO ON v LAU YIU LONG

With intent to:

R v MOHAN

R v WAAKA

R v MOHI

(a) Marry him/her OR
(b) Have sexual connection with him/her OR
(c) Cause him/her to be married or have sexual connection with some other person

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KIDNAPPING

Section 209 (a) or (b) or (c) C.A.61 - PENALTY 14 years

Unlawfully

R V CHARTRAND

Takes away OR Detains

R V CROSSAN

R v WELLARD

R v PRYCE

A person
Without his or her consent OR With his or her consent obtained by fraud OR With his or her consent obtained by duress

R v COX

R v CORT

PAO ON v LAU YIU LONG

With intent to:

R v MOHAN

R v WAAKA

R v MOHI

(a) Hold him/her for ransom or service OR
(b) Cause him/her to be confined or imprisoned OR
(c) Cause him/her to be sent or taken out of New Zealand

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ABDUCTION OF YOUNG PERSON UNDER 16 YEARS (1)

ABDUCTION OF YOUNG PERSON UNDER 16 - 210(1) Crimes Act 1961

Everyone is liable to a term of imprisonment not exceeding 7 years who:

With intent:
To deprive a parent or guardian or other person having lawful care or charge of a young person
Of the possession of the young person
Unlawfully takes OR entices away OR detains
The young person

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ABDUCTION OF YOUNG PERSON UNDER 16 YEARS (2)

ABDUCTION OF YOUNG PERSON UNDER 16 - 210(2) Crimes Act 1961

Everyone is liable to a term of imprisonment not exceeding 7 years who:

Receives a young person
Knowing that he or she has been unlawfully taken OR enticed away OR detained
With intent to
Deprive a parent or guardian or other person having lawful care or charge of a young person

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Statutory defence of good faith

Statutory defence of good faith - 210A Crimes Act 1961

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 s209 or s210 because he or she gets possession of the young person.

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Person

Gender neutral, proven by judicial notice or circumstantial evidence.

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Consent

A person’s conscious and voluntary agreement to do something desired or proposed by another.

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Consent - Defence s209A Crimes Act 1961

Consent - Section 209A Crimes Act 1961

A person under 16 years cannot give consent to being taken away or detained.

Defence - S209A, Crimes Act 1961

Consent is not a defence to charges under s208 - s210 when the person taken is under 16 years (s209A CA 61)

For the purpose of s208 & s209, a person under the age of 16 years cannot consent to being taken away or detained.

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Consent Obtained by Fraud (Deception)

With Consent Obtained by Fraud (Deception)

Consent obtained by the misrepresentation of the facts or the offenders intentions.

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Consent Obtained by Duress

With Consent Obtained by Duress

Consent obtained by actual or implied threat of force to the victim or another person. Can include other forms of pressure or coercion.

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Intent

A person does something intentionally if the mean to do it. They desire a specific result and act with the aim or purpose of achieving it. (MOHAN, WAKKA & MOHI).

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Ransom

A sum of money demanded or paid for the release of a person being held captive.

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Service

Offender intends to keep the victim as a servant or slave.

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Imprisoned

Put in prison or confine as if in prison.

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Sent or Taken Out of New Zealand

Sent - Offenders intent is that victim leave New Zealand.

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Marry

Engage in a marriage solemnised in accordance with the provisions of the Marriage Act 1955.

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When the Offence is Complete + Case Law

When the Offence is Complete (R v Mohi)

In abduction, marriage and sexual connection appear only a matter of intent, it is not necessary to prove that they actually occurred or were even attempted.

R v MOHI

Offence is committed at the time of the taking away, so long as there is at the moment the necessary intent. Crown does not need to show that the intent was carried out.

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Sexual Connection - S2, Crimes Act 1961

Connection effected by the introduction into the genitalia or anus of one person, otherwise than for genuine medical purpose of:

A part of the body of another person (or)
An object held or manipulated by another person OR

Connection between the mouth or tongue of one person and part of another person’s genitalia or anus OR
The continuation of connection of a kind described in paragraph (a) or paragraph (b).

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R v Chartrand - Unlawfully

R v Chartrand

Unlawfully means “without lawful justification, authority or excuse”

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R v Wellard - Kidnapping

R v Wellard

Kidnapping is the “deprivation of liberty coupled with the carrying away from the place where the victim wants to be”.

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R v Pryce - Detaining

R v Pryce

Detaining is an active concept meaning “to keeping confinement or custody” in contrast to the passive concept of “labouring” or mere failure to hand over.

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R v Mohi - offence is complete

R v Mohi

The offence is complete at the time of taking or the period of detention has commenced accompanied with the necessary intent (regardless if intent carried out or not).

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R v Crosson - Taking away

R v Crosson

Taking away and detaining are “separate and distinct offences”. The first consists of taking the victim away; the second, detaining them.

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R v Cox - Consent

R v Cox

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

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R v MOHAN, R v WAKKA, R v MOHI - Intent

R v MOHAN Intent involves a decision to bring about in so far as it lies within the accused’s power, the commission of the offence. R v WAAKA A fleeting or passing thought is not sufficient; there must be a firm intent or a firm purpose to effect an act. R v MOHI Offence is commited at the time of the taking away, so long as there is at the moment the necessary intent. Crown does not need to show that the intent was carried out.

Accessory After the Fact (1)

Accessory After the Fact - s71(1) CA61 - PENALTY 7 years/5 years/1/2 * Knowing any person to be a party to an offence * Receives, comforts or assists that person OR Tampers with or actively suppresses any evidence. * In order to enable him to escape after arrest OR Avoid arrest or conviction

Accessory After the Fact (2)

Accessory After the Fact - s71(2) CA61 * No married person whose spouse or civil union partner has been a party to an offence shall become an accessory after the fact to that offence by doing an act to which this section applies. * In order to enable the spouse or civil union partner or the spouse or civil union partner of any other person who has been a party to the offence, to escape after arrest or to avoid arrest or conviction.

Accessory After the Fact (Penalty)

Accessory After the Fact (Penalty) – s312 CA61 Everyone who is an accessory after the fact to any imprisonable offence, * being an offence in respect of which no express provision is made by this Act or by some other enactment for the punishment of an accessory after the fact, * is liable to imprisonment for a term not exceeding 7 years if the maximum punishment for that offence is imprisonment for life, and not; 5 years if max punishment 10 years; half maximum penalty in all other cases.

Knowing + Case Law

Knowing The accused must have knowledge that the person that they are being an accessory to was party to an offence at the time of assisting them. Simester and Brookbanks: Principles of Criminal Law Knowing means “correctly believing.” The defendant may believe something wrongly but cannot “know” something that is false.

Party to

Party – Section 66(1) Crimes Act 1961 Everyone is party to and guilty of an offence who: Actually commits the offence; OR Does or omits an act for the purpose of aiding any person to commit the offence; OR Abets any person in the commission of the offence OR Incites, counsels or procures any person to commit the offence.

Offence

Offence “Offence” and “crime” are words that are used interchangeably in statute, and there is no material difference between them. They may be described as an act or omission that is punishable on conviction under any enactment, and are demarcated into four categories.

Proof of Offence Committed

Proof of Offence Committed The offence must be complete in order to be an accessory. Where the person is involved before or during the commission of the offence you should consider whether they are a party to the offence or a conspirator. A person charged with being an accessory after the fact is entitled to assist on proof of the principal crime and to challenge the evidence of it even if the principal offender has pleaded guilty.

Receives/Comforts/Assists

Receives/Comforts/Assists The accused does a deliberate act for the purpose of assisting the person to evade justice. The act done must actually help the person in some way.

Tampers with OR actively suppresses any evidence + Case Law

Tampers with OR actively suppresses any evidence Must do a deliberate act in relation to evidence against offender for purpose of assisting person evade justice. The act must actually help the person. R v MANE The act done by the accessory must be done after the completion of the offence.

R v CROOKS - Knowledge

R v CROOKS Knowledge means actual knowledge or belief in the sense of having no real doubt that the person assisted was a party to the relevant offence.

R v BRIGGS - wilful blindness

R v BRIGGS Knowledge may also be inferred from wilful blindness that the offence was committed.

R v MANE - completion of the offence.

R v MANE The act done by the accessory must be done after the completion of the offence.

ATTEMPTS

ATTEMPTS – s72 CA61 Everyone who, * having an attempt to commit an offence * does or omits an act * for the purpose of accomplishing his object, * is guilty of an offence to commit the offence intended, * whether in the circumstances it was possible to commit the offence or not.

R v DONNELLY - stolen property

R v DONNELLY Where stolen property has been returned to the owner or legal title to any such property has been acquired by any person, it is not an offence to subsequently receive it, even though the receiver may know that the property had previously been stolen or dishonestly obtained.

POLICE v JAY

POLICE v JAY A man bought hedge clippings believing they were cannabis.

R v RING - intention to steal

R v RING Offender intended to steal property by putting his hand into the victims pocket. Unbeknown to him, the victim’s pocket was empty. Despite this he was successfully convicted of attempted theft due to the intent to steal the property being present.

R v HARPUR - proximity

R v HARPUR The court may have regard to the conduct viewed cumulatively up to the point when the conduct in question stops... the defendants conduct may be considered in its entirety. Considering how much remains to be done... is always relevant, thought not determinative.

ARSON (1)(a)

ARSON s267(1)(a) CA61 – Penalty 14 years * Intentionally OR Recklessly R v MOHAN R v WAAKA R v HARNEY * Damages by fire OR Damages by means of any explosive R v ARCHER * Any property * Knowing or ought to know danger to life is likely to ensue Simester and Brookbanks: Principles of Criminal Law

ARSON (1)(b)

ARSON s267(1)(b) CA61 – Penalty 14 years * Intentionally OR Recklessly R v MOHAN R v WAAKA R v HARNEY * And without claim of right * Damages by fire OR Damages by means of explosive R v ARCHER * Any immovable property OR Vehicle OR Aircraft OR Ship * In which that person has no interest

ARSON (1)(c)

ARSON s267(1)(c) CA61 – Penalty 14 years * Intentionally R v MOHAN R v WAAKA * Damages by fire OR Damages by means of explosive R v ARCHER * Any immovable property OR Vehicle OR Aircraft OR hip * With intent to obtain any benefit OR to cause loss to any person R v MOHAN R v WAAKA R v MORLEY

ARSON (2)(a)

ARSON s267(2)(a) CA61 – Penalty 7 years * Intentionally OR Recklessly R v MOHAN R v WAAKA R v HARNEY * And without claim of right * Damages by fire OR Damages by means of explosive R v ARCHER * Any property in which that person has no interest (other than property listed in section 267(1))

ARSON (2)(b)

ARSON s267(2)(b) CA61 – Penalty 7 years * Intentionally OR Recklessly R v MOHAN R v WAAKA R v HARNEY * Damages by fire OR Damages by means of explosive R v ARCHER * Any property (other than property referred to in 267(1)) * With intent to obtain any benefit OR to cause loss to any person

ATTEMPTED ARSON

ATTEMPTED ARSON – s268 CA 61 Everyone is liable to a term of imprisonment not exceeding 10 years who * _attempts_ to * _commit arson _in respect of any * _immovable property_ or _any vehicle_, _ship_ or _aircraft_.

Intent + Case Law

Intent A person does something intentionally if the mean to do it. They desire a specific result and act with the aim or purpose of achieving it. (MOHAN, WAKKA & MOHI). R v MOHAN Intent involves a decision to bring about in so far as it lies within the accused’s power, the commission of the offence. R v WAAKA A fleeting or passing thought is not sufficient; there must be a firm intent or a firm purpose to effect an act. R v MOHI Offence is commited at the time of the taking away, so long as there is at the moment the necessary intent. Crown does not need to show that the intent was carried out.

Recklessness + Case Law

Recklessness A conscious and deliberate taking of an unjustifiable risk. R v HARNEY Foresight of dangerous consequences that could well happen together with an intention to continue the course of conduct regardless of the risk.

Damages by Fire + Case Law

Damages by Fire Widens the scope of arson to include situations where property is damaged by fire not necessarily set alight. For example heat damage, melting, oxidation, and smoke damage. R v ARCHER Property may be damaged if it suffers permanent or temporary physical harm or permanent or temporary impairment of its use or value.

Danger to Life

Danger to Life Danger to life is given a commonsense meaning requiring the danger to life of some person other than the defendant.

Explosive

Explosive – Section 2, Arms Act 1983 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 eg gun powder, gelignite.

Property

Property - Section 2 Crimes Act 1961 Includes any real or 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.

Knows or Out to know

Knows or Out to know The fact that the defendant knowingly puts another persons life at risk is an aggravating factor that brings the offending within s267(1) CA61. Simester and Brookbanks: Principles of Criminal Law Knowing means “correctly believing.” The defendant may believe something wrongly but cannot “know” something that is false. This provision involves a mixed subjective/objective test as to the defendant’s degree of knowledge. Subjective Test - what was the defendant thinking at the time? Did the defendant know that human life was likely to be endangered by his actions? Objective Test - what would a reasonable person have thought in the same circumstances? Would a reasonable person have recognised the risk?

Claim of Right

Claim of Right - Section 2 Crimes Act 1961 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.

Immovable Property

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 movable. In general, it relates to buildings and land and things growing on land, such as forests.

Vehicle

Vehicle - Section 2 LTSA1998 A contrivance equipped with wheels, tracks, or revolving runners on which it moves or is moved.

Ship

Ship - Section 2, Crimes Act 1961 Any vessel used in navigation, however propelled and includes any barge, lighter, dinghy, raft, or like vessel and also includes any ship belonging to or used as a ship of the armed forces of any country.

Aircraft

Aircraft - Section 2 Civil Aviation Act 1990 means 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

Interest

Interest No claim or interest in property.

Obtain

Obtain - Section 217, Crimes Act 1961 In relation to any person means to obtain or retain for himself/herself or for any other person.

Benefit

Benefit - Section 267(4) Crimes Act 1961 Means any benefit, pecuniary advantage, privilege, property, service, valuable consideration.

Cause Loss

Cause Loss Criminality can only arise from direct loss; indirect losses such as expectation loss (loss of a bargain) and loss of anticipated future profits are not included.

R v HARNEY - Recklessness

R v HARNEY Foresight of dangerous consequences that could well happen together with an intention to continue the course of conduct regardless of the risk.

R v ARCHER - damaged property

R v ARCHER Property may be damaged if it suffers permanent or temporary physical harm or permanent or temporary impairment of its use or value.

R v HARPUR - proximity

Aggravated Burglary (1)(a)

Aggravated Burglary – s232(1)(a) CA 61 Penalty: 14 Years * While committing burglary * Has a weapon with him OR Uses anything as a weapon POLICE V PITMAN R V EDMONDS R V STEELE

Aggravated Burglary (1)(b)

Aggravated Burglary – s232(1)(b) CA 61 Penalty: 14 Years * Having committed burglary * Has a weapon with him OR Uses anything as a weapon POLICE V PITMAN R V EDMONDS R V STEELE * While still in the building or ship PRITCHARD V POLICE

Conspiracy

Conspiracy – s310(1) CA61 - Penalty 7 Years * Conspires MULCAHY V R R V SANDERS * With any person R V WHITE * To commit any offence CHURCHILL v WALTON

Conspiratorial Agreement

The conspiratorial agreement requires the operation of both the physical and mental faculties. The actus reus (physical element) of conspiracy is the agreement between two or more people to put their common design into effect. The mens rea (mental intent) necessary for a conspiracy is: * an intention of those involved to agree, _and_ * an intention that the relevant course of conduct should be pursued by those party to the agreement.

R v SANDERS - continuation/agreement ## Footnote

R V SANDERS “A conspiracy does not end with the making of the agreement. The conspiratorial agreement continues in operation and therefore in existence until it is ended by completion of its performance or abandonment or in any other manner by which agreements are discharged”.

R v WHITE - parties unknown

R v WHITE The conspiracy may be by a person who could not commit the crime and where you can prove that a suspect conspired with other parties whose identities are unknown, that suspect can still be convicted even if the identity of the other parties is never established and remains unknown.

TAKING/OBTAINING A DOCUMENT (a)

TAKING/OBTAINING A DOCUMENT s228(a) Crimes Act 1961 - PENALTY 7 years * With intent R v MOHAN R v WAAKA R V MORLEY * to obtain * any Property OR Service OR Pecuniary Advantage OR Valuable Consideration R V CARA R v HAYES x 2 * Dishonestly * And without claim of right * Takes OR Obtains * a document R V MISIC

USES/ATTEMPTS TO USE A DOCUMENT (b)

USES/ATTEMPTS TO USE A DOCUMENT s228(b) Crimes Act 1961 - PENALTY 7 years * With intent R v MOHAN R v WAAKA R V MORLEY * To obtain * Any Property OR Service OR Pecuniary Advantage OR Valuable Consideration R V CARA R v HAYES x 2 * Dishonestly * And without claim of right * Uses OR Attempts to use * Any document R V MISIC

DECEPTION - (1)(a)

DECEPTION - s240(1)(a) C.A.61 - PENALTY 7 years, 1 year, 3 mth * By any deception R V MORLEY * And without claim of right * Obtains ownership OR possession of OR control over WARNER v MET POL COMMISSIONER SULLIVAN V EARL OF CAITHNESS R v HAYES x 2 * Any Property OR Any Privilege OR Service OR Pecuniary Advantage OR Benefit OR Valuable Consideration R V CARA R v HAYES x 2

DECEPTION - (1)(b)

DECEPTION - s240(1)(b) C.A.61 - PENALTY 7 years, 1 year, 3 mth * By any deception R V MORLEY * And without claim of right * In incurring any debt OR Liability * Obtains Credit FISHER V RAVEN R V MCKAY

DECEPTION - (1)(c)

DECEPTION - s240(1)(c) C.A.61 - PENALTY 7 years, 1 year, 3 mth * By any deception R V MORLEY R V LAVERTY * And without claim of right * Induces OR causes any other person to * Deliver over OR execute OR make OR accept OR endorse OR destroy OR alter * Any document or thing * Capable of being used to * Derive a pecuniary advantage

DECEPTION - (1)(d)

DECEPTION - s240(1)(d) C.A.61 - PENALTY 7 years, 1 year, 3 mth * By any deception R V MORLEY R V LAVERTY * And without claim of right * Causes Loss to any person R V MORLEY

False Representation

False Representation Must be false and the defendant must know or believe that it is false in a material particular, or be reckless whether it is false Absolute certainty is not required and wilful blindness as to the falsity of the statement will suffice

Intent to Deceive

Intent to Deceive Offender must know representation is false and intend other person to act upon it as genuine. R v MORLEY An intention to deceive requires that the deception is practised in order to deceive the affected party. Purposeful intent is necessary and must exist at the time of the deception

Claim of Right

Claim of Right – Section 2 Crimes Act 1961 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.

Obtain

Obtain - Section 217 Crimes Act 1961 In relation to any person means obtain or retain for him/her self or for any other person.

Possession

Possession May be actual or constructive.

Actual Possession

Actual Possession Actual possession arises where the thing in question is in a person's physical custody; it is on or about their person, or immediately at hand. WARNER v MET POL COMMISSIONER Ideal possession is: * Complete physical control * Knowledge of existence, situation, qualities.

Constructive Possession

Constructive Possession Constructive possession arises when something is not in a person’s physical custody, but they have ready access to it or can exercise control over it. SULLIVAN V EARL OF CAITHNESS “[Possession includes} not merely those who have physical custody of firearms ... but also those who have firearms under their control at their behest, even though for one reason or another they may be kept at [another location]."

CONTROL

CONTROL To “control” something means to exercise authoritative or dominating influence or command over it

Property

Property - Section 2, Crimes Act 1961 Property includes 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.

Privilege or Benefit

Privilege or Benefit Special right or advantage.

Pecuniary advantage & Case Law

Pecuniary advantage Economic or monetary advantage. R v HAYES A pecuniary advantage is “anything that enhances the accused’s financial position. It is that enhancement which constitutes the element of advantage.”

Valuable Consideration & Case Law

Valuable Consideration: Receiving compensation or a fee R v HAYES A valuable consideration is “anything capable of being valuable consideration, whether of a monetary kind or of any other kind; in short, money or money’s worth”.

Value

Value Value must be established to determine max penalty.

Credit/OBLIGATION TO PAY & Case Law

Credit/OBLIGATION TO PAY FISHER v RAVEN Refers to the obligation on the debtor to pay or repay in the time given to do so by the creditor. The obligation to pay must be legally enforceable R v MCKAY Intention to deceive must exist when credit obtained.

Recklessness & Case Law

Recklessness A conscious and deliberate taking of an unjustifiable risk. R v HARNEY Recklessness involves foresight of dangerous consequences that could well happen together with an intention to continue the course of conduct regardless of the risk.

MATERIAL PARTICULAR

MATERIAL PARTICULAR Prosecution must establish that the defendant knows or believes his representation is false in a material particular, or is reckless as to whether it is false. A minor detail may amount to a “material particular” if it is of consequence to the facts of the case. Not defined in the Crimes Act given its usual meaning of an important, essential or relevant detail.

Document & Case Law

Document - Section 217 Crimes Act 1961 Includes part of a document in any form, and includes: Paper/material containing anything that can be read Photos, negatives and related items Discs, tapes, cards or other devices/equipment on which information is stored and can be reproduced R v MISIC Essentially a document is a thing, which provides evidence or information or serves as a record.

LOSS & Case Law

LOSS Is likely to include financial and property losses and may also encompass emotional, cultural and intellectual losses. This term is broad and encompassing. It may include financial or non-financial loss. R v MORLEY “The loss alleged by the victim must have been induced by, or caused in reliance, upon the deception. But the deception need not be the only operative factor, so long as it played a material part in occasioning the loss.”

Dishonestly & Case Law

Dishonestly - Section 217, Crimes Act 1961 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. R v HAYES The question is whether the belief is actually held, not whether that belief is reasonable. However, reasonableness may be relevant as evidence on the issue of whether the belief was actually held:

Takes

Takes – Section 219(4) Crimes Act 1961 For tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved.

Uses & Case Law

Uses “Use” can include a single action such as the handing over of a document to it’s intended recipient or the continuing use of a document. R v HAYES Unsuccessful use of a document is as much “use” as a successful one. The concept of attempt relates to the use not to the obtaining of advantage therefore it may be difficult to draw a line between use and attempted use.

Attempts

Attempts – Section 72, Crimes Act 1961 Everyone who, having an attempt to commit an offence does or omits an act for the purpose of accomplishing his object, is guilty of an offence to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.

Concept of title

Concept of title “Title” is not defined in the Crimes Act 1961. The Concise Oxford Dictionary defines title as ‘a right or claim to the ownership of property’. Title simply means a legal right to the property.

Dishonesty other than deceit

Dishonesty other than deceit There is a difference between theft and obtaining by deceit. A thief never gets title. Deception or inducement causing another to hand over goods with the intention of passing on title does.

Voidable title

Voidable title A title obtained by deception, fraud, duress or misrepresentation is called a voidable title. This means that the title can be avoided by the seller.

R v MORLEY - intention to deceive ## Footnote

R v MORLEY The intention to deceive requires that the deception be practiced in order to deceive the affected party. Purposeful intent must exist at the time of the deception

R v HAYES - pecuniary advantage

R v HAYES A _pecuniary advantage_ is “anything that enhances the accused’s financial position. It is that enhancement which constitutes the element of advantage.”

R v HAYES - valuable consideration

R v HAYES A _valuable consideration_ is “anything capable of being valuable consideration, whether of a monetary kind or of any other kind; in short, money or money’s worth”.

FISHER v RAVEN - obligation to pay or repay

FISHER v RAVEN Refers to the obligation on the debtor to pay or repay in the time given to do so by the creditor. The obligation to pay must be legally enforceable

R v MCKAY - Intention to deceive

R v MCKAY Intention to deceive must exist when credit obtained.

R V LAVERTY - prove inducement

R V LAVERTY It is necessary for the prosecution to prove that the person parting with the property was induced to do so by the false representation made

R V MORLEY - Loss

R V MORLEY “The loss alleged by the victim must have been induced by, or caused in reliance, upon the deception. But the deception need not be the only operative factor, so long as it played a material part in occasioning the loss.”

Import/Export Controlled Drug

Import/Export Controlled Drug s6(1)(a) Misuse of Drugs Act 1975 - PENALTY Life/14 years/8Years * Imports OR Exports SAXTON v POLICE R v HANCOX R v STRAWBRIDGE * Any Controlled Drug R v EMERALI * Into NZ OR out of NZ

Produce/Manufacture Controlled Drug

Produce/Manufacture Controlled Drug s6(1)(b) Misuse of Drugs Act 1975 - PENALTY Life/14 years/8Years * Produce OR manufacture R v RUA R v STRAWBRIDGE * Any Controlled Drug R v EMERALI

SUPPLY ADMINISTER/OFFER TO SUPPLY OR ADMINISTER CLASS A/B CONTROLLED DRUG

SUPPLY ADMINISTER/OFFER TO SUPPLY OR ADMINISTER CLASS A/B CONTROLLED DRUG s6(1)(c) Misuse of Drugs Act 1975 - PENALTY Life/14 years * Supplies OR Administers OR Offers to Supply/Administer OR otherwise deals R v MAGINNIS R v DONALD R v KNOX BLACK LAW’S DICTIONARY R v DURING R v BROWN x 2 * Class A/B controlled Drug POLICE V EMERALI R v STRAWBRIDGE * To any person

SUPPLY CLASS C CONTROLLED DRUG TO PERSON UNDER 18 YEARS

SUPPLY CLASS C CONTROLLED DRUG TO PERSON UNDER 18 YEARS s6(1)(d) Misuse of Drugs Act 1975 - PENALTY 8 years * Supplies OR Administers OR Offers to Supply/Administer OR otherwise deals R v MAGINNIS R v DONALD R v KNOX BLACK LAW’S DICTIONARY R v DURING R v BROWN * Class C controlled Drug POLICE V EMERALI R v STRAWBRIDGE * To person under 18 years of age R v FORREST AND FORREST

SELL/OFFER TO SELL CLASS C CONTROLLED DRUG TO PERSON OF OR OVER 18 YEARS

SELL/OFFER TO SELL CLASS C CONTROLLED DRUG TO PERSON OF OR OVER 18 YEARS s6(1)(e) Misuse of Drugs Act 1975 - PENALTY 8 years * Sells OR Offers to Sell R v STRAWBRIDGE R v DURING R v BROWN * Class C controlled drug POLICE V EMERALI * To a person of or over 18 years of age R v FORREST AND FORREST

POSSESSION OF CONTROLLED DRUG FOR SUPPLY

POSSESSION OF CONTROLLED DRUG FOR SUPPLY s6(1)(f) Misuse of Drugs Act 1975 - PENALTY 8 years * Possession of WARNER v METROPOLITION POLICE COMMISSIONER SULLIVAN V EARL OF CAITHNESS * Any controlled drug * For any of the purposes set out in paragraph (c), (d) or (e) POLICE V EMERALI R V STRAWBRIDGE

s6(2A) Misuse of Drugs Act 1975

s6(2A) Misuse of Drugs Act 1975 (2A) Everyone who conspires with any other person to commit an offence against subsection (1) of this section commits an offence against this Act and is liable on conviction to imprisonment for a term: * Not exceeding 14 years where a class A controlled drug was the controlled drug or one of the controlled drugs in relation to which the offences was committed. * Not exceeding 10 years where paragraph (a) of this subsection does not apply but a Class B controlled drug was the controlled drug or one of the controlled drugs in relation to which the offences was committed. * Not exceeding 7 years in any other case.

Section 12A(1) Misuse of Drugs Act 1975

Section 12A(1) Misuse of Drugs Act 1975 Equipment, material, and substances used in production or cultivation of controlled drugs (1) Every person commits an offence against this Act who supplies, produces, or manufactures— (a) Any equipment or material that is capable of being used in, or for, the commission of an offence against section 6(1)(b) or section 9 ; or (b) Any precursor substance — Knowing that the equipment, material, or substance is to be used in, or for, the commission of an offence against those provisions What must be proven? * The defendant has supplied, produced or manufactured equipment, material or precursors; * Those items are capable of being used in the production or manufacture of controlled drugs or the cultivation of prohibited plants; * That the defendant knows those items are to be used for such an offence by another person

Section 12A(2) Misuse of Drugs Act 1975

Section 12A(2) Misuse of Drugs Act 1975 (2) Every person commits an offence against this Act who has in his or her possession— (a) Any equipment or material that is capable of being used in, or for, the commission of an offence against section 6(1)(b) or section 9 ; or (b) Any precursor substance— with the intention that the equipment, material, or substance is to be used in, or for, the commission of an offence against that provision What must be proven? * The defendant has equipment, material or precursors in his possession; * The items are capable of being used in the production or manufacture of controlled drugs, or the cultivation of prohibited plants * The defendant intends that those items are to be used for such an offence, either by himself or another person (3) Every person who commits an offence against this section is liable on conviction; (a) In the case of an offence against subsection (1), to imprisonment for a term not exceeding 7 years: (b) In the case of an offence against subsection (2), to imprisonment for a term not exceeding 5 years.

What must be proven for importation (Mens Rea)?

What must be proven for importation (Mens Rea)? The crown must prove that the defendant’s conduct contributed to the importation of the drug. It must also prove guilty knowledge, i.e. the defendant; * Knew about the importation; and * Knew the imported substance was a controlled drug; and * Intended to cause the importation

Imports

Imports - Section 2 Customs & Excise Act 1996 In relation to any goods, means the arrival of goods into New Zealand in any manner, whether lawfully or unlawfully, from a point outside New Zealand.

Exports

Exports - Section 53 Customs & Excise Act 1996 For the purposes of this Act, the time of exportation is the time when the exporting craft leaves the last Customs place at which that craft calls immediately before proceeding to a point outside New Zealand.

Must prove Guilty Knowledge & Case Law

Must prove Guilty Knowledge Prove that defendant; Knew about the drug offending, and Knew the substance was a controlled drug, and Intended to cause the drug offending. R V STRAWBRIDGE If the accused honestly believed on reasonable grounds that her act was innocent, then she is entitled to be acquitted unless the jury is satisfied beyond reasonable doubt that this was not so.

Controlled Drug

Controlled Drug - Section 2, MODA 1975 Any substance, preparation, mixture or article specified or described in schedule 1,2 or 3 to this Act and includes any controlled drug analogue. R V EMERALI In any drug offence the quantity of drug involved must be measurable and useable.

Controlled Drug Analogue

Controlled Drug Analogue - Section 2, MODA 1975 Any substance that has a structure substantially similar to that of any controlled drug. There are some exceptions. R V EMERALI In any drug offence the quantity of drug involved must be measurable and useable.

Produce

Produce To bring something into being, or to bring something into existence from it’s raw materials or elements.

Manufacture

Manufacture The process of synthesis, combining components or processing raw materials to create a new substance. R v RUA The statute is not intended to create separate crimes of producing and manufacturing a controlled drug. Rather, we are inclined to the view that the use of the words ‘produce or manufacture’ are to be read as complementary and to broadly cover the process of the creation of controlled drugs.

Complete

Complete Offence is complete once the prohibited substance is created, whether or not it is in a useable form.

Possession

Possession Possession may be actual or constructive.

Actual Possession & Case Law

Actual Possession Actual possession arises where the thing in question is in a person's physical custody; it is on or about their person, or immediately at hand. WARNER v METROPOLITION POLICE COMMISSIONER The term "possession" must be given a sensible and reasonable meaning in its context. Ideally, a possessor of a thing has: Complete physical control over it Knowledge of its existence, its situation and its qualities

Constructive Possession & Case Law

Possession - Section 2(2), Misuse of Drugs Act 1975

Possession - Section 2(2), Misuse of Drugs Act 1975 For the purposes of this Act, the things which a person has in his possession include any thing subject to his control which is in the custody of another.

Supply - Section 2, MODA 1975 & Case Law

Supply - Section 2, MODA 1975 Includes to distribute, give or sell. Distribution is complete when the defendant has done all that is necessary to accomplish delivery of the drug to others. R v MAGINNIS Supply involves more than a mere transfer of physical control, it includes enabling the recipient to apply the thing to purposes for which he desires. R v DONALD “The distribution of … jointly owned property amongst its co-owners …” is caught within the meaning of supply. R v KNOX Giving includes giving back

Administer

Administer BLACK LAW’S DICTIONARY In the context of drug dealing, the appropriate meaning of “administer” is to direct and cause a drug to be taken into the system of another person.

Sell

Sell A quantity or share in a drug is exchanged for some valuable consideration.

Presumption of Sale & Case Law

Presumption of Sale – Section 6(5) MODA 1975 For the purposes of Section 6(1)(e), if proved that a person has supplied a controlled drug it shall be deemed to have been sold unless proved to the contrary. Offers R v DURING Intimation to another person that he’s ready on request to supply drugs prohibited by the statute, to them. R v BROWN have drug/intend to supply/offer to sell dont have drug/intend to get/offer to sell think have drug but dont/offer to sell pretend to have/offer to sell

Otherwise deals

Otherwise deals Includes bartering or exchanging.

Purpose

Purpose In this context can be equated to aim or intention. (c) Supply or administer, or offer to supply or administer, any Class A controlled drug or Class B controlled drug to any other person, or otherwise deal in any such controlled drug; OR (d) Supply or administer, or offer to supply or administer, any Class C controlled drug to a person under 18 years of age; OR (e) Sell, or offer to sell, any Class C controlled drug to a person of or over 18 years of age;

R V STRAWBRIDGE - reasonable grounds

R V STRAWBRIDGE If the accused honestly believed on reasonable grounds that her act was innocent, then she is entitled to be acquitted unless the jury is satisfied beyond reasonable doubt that this was not so.

R V EMERALI - quantity

R V EMERALI In any drug offence the quantity of drug involved must be measurable and useable.

R v RUA - ‘produce or manufacture’

R v RUA The statute is not intended to create separate crimes of producing and manufacturing a controlled drug. Rather, we are inclined to the view that the use of the words ‘produce or manufacture’ are to be read as complementary and to broadly cover the process of the creation of controlled drugs.

R v MAGINNIS - Supply

R v MAGINNIS Supply involves more than a mere transfer of physical control, it includes enabling the recipient to apply the thing to purposes for which he desires.

R v DURING - Intention

R v DURING Intention is that the person will believe a real offer has been made.

R v BROWN - Intent to supply ## Footnote

R v BROWN have drug/intend to supply/offer to supply dont have drug/intend to get/offer to supply think have drug but dont/offer to supply pretend to have drug/offer to supply

DISCHARGES FIREARM WITH INTENT TO DO GBH (a)

DISCHARGES FIREARM WITH INTENT TO DO GBH s198(1)(a) CA1961 - 14 Years * With intent to do GBH R v MOHAN R v WAAKA DPP V SMITH * Discharges any Firearm OR Airgun OR Similar weapon * At any person R v PEKEPO

DOING A DANGEROUS ACT WITH INTENT TO GBH (b)

DOING A DANGEROUS ACT WITH INTENT s198(1)(b) CA1961 - 14 Years * With intent to cause GBH R v MOHAN R v WAAKA DPP V SMITH * Sends or delivers to any person OR puts in any place * Any explosive OR Injurious substance or device

DOING A DANGEROUS ACT WITH INTENT GBH (c)

DOING A DANGEROUS ACT WITH INTENT s198(1)(c) CA1961 - 14 Years * With intent to cause GBH R v MOHAN R v WAAKA DPP V SMITH * Sets fire to * To any property

DISCHARGES A FIREARM WITH INTENT TO INJURE

DISCHARGES A FIREARM WITH INTENT TO INJURE s198(2)(a) CA1961 - 7 Years * With intent to R v MOHAN R v WAAKA * Injure R v DONOVAN * Any person * OR with reckless disregard for the safety of others R v HARNEY * Discharges any Firearm OR Airgun OR Similar weapon R v PEKEPO

DOING A DANGEROUS ACT WITH INTENT TO INJURE (b)

DOING A DANGEROUS ACT WITH INTENT s198(2)(b) CA1961 - 7 Years * With intent to R v MOHAN R v WAAKA * Injure R v DONOVAN * Any person * OR with reckless disregard for the safety of others R v HARNEY * Sends or delivers to any person OR puts in any place * Any explosive OR Injurious substance or device

DOING A DANGEROUS ACT WITH INTENT INJURE (c)

DOING A DANGEROUS ACT WITH INTENT s198(2)(c) CA1961 - 7 Years * With intent to R v MOHAN R v WAAKA * Injure R v DONOVAN * Any person * OR with reckless disregard for the safety of others R v HARNEY * Sets fire to * To any property

USES A FIREARM AGAISNT A LAW ENFORCEMENT OFFICER ETC

USES A FIREARM AGAISNT A LAW ENFORCEMENT OFFICER ETC s198A(1) CA1961 - 14 Years * Uses a firearm in any manner whatever POLICE v PARKER * Against any Constable, acting in the course of his or her duty * Knowing that the person is a constable so acting OR Being reckless to whether or not that person is constable so acting SIMESTER & BROOKBANKS R V HARNEY

USES A FIREARM AGAISNT A LAW ENFORCEMENT OFFICER ETC

USES A FIREARM AGAISNT A LAW ENFORCEMENT OFFICER ETC Section 198A(2) CA1961 - 10 Years * Uses a firearm in any manner whatever POLICE v PARKER * With intent to resist the lawful arrest OR Detention of himself or Any other person R v MOHAN R v WAAKA R v FISHER

COMMISSION OF AN IMPRISONABLE OFFENCE WITH FIREARM (a)

USES A FIREARM AGAISNT A LAW ENFORCEMENT OFFICER ETC s198B(1)(a) CA1961 - 10 Years * In committing any imprisonable offence * Uses any Firearm

COMMISSION OF AN IMPRISONABLE OFFENCE WITH A FIREARM (b)

COMMISSION OF A CRIME WITH A FIREARM s198B(1)(b) CA1961 - 10 Years * While committing any imprisonable offence * Has any firearm with him or her R v KELT * In circumstances that prima facie show an intention to use it in connection with that imprisonable offence TULI V POLICE R v MOHAN R v WAAKA

COMMITING

COMMITING Must be in the commission of committing a crime

Imprisonable offence

An imprisonable offence Normal meaning – any offence punishable by a term of imprisonment

Firearm

Firearm - Section 2, Arms Act 1983 Anything from which any shot, bullet, missile or other projectile can be discharged by force of explosive. Includes: * Anything capable of doing so by adaption, completion, replacement of parts or repair of defect. * Any dismantled firearm. * Any especially dangerous airgun.

Airgun

Airgun - Section 2, Arms Act 1983 Airgun includes any air rifle and any air pistol and any weapon from which, by the use of gas or compressed air (and not by force of explosive), any shot bullet, missile or other projectile can be discharged.

Explosive

Constable

Constable - Section 4, Police Act 2008 means a Police employee who— (a) holds the office of constable (whether appointed as a constable under the Police Act 1958 or this Act); and (b) includes a constable who holds any level of position within the New Zealand Police

Acting in the course of their duty

Acting in the course of their duty The term includes every lawful act which a constable does while on duty, and may include acts done where the circumstances create a professional obligation for a Constable to exercise policing duties while off duty. However, an officer who is acting unlawfully, cannot be said to be “acting in the course of his or her duty.”

Knowing that the person is a constable so acting

Knowing that the person is a constable so acting – The accused must know the victim is a police officer and know that the officer is acting in the course of his or her duty, or be reckless as to those facts. SIMESTER & BROOKBANKS Knowing means correctly believing. The defendant may believe something wrongly, but cannot know something that is false.

Intent & Case Law

Intent A person does something intentionally if they mean to do it, they desire a specific result and act with the aim or purpose of achieving it. R v MOHAN Intent involves a decision to bring about in so far as it lies within the accused power, the commission of the offence. R v WAAKA A fleeting or passing thought is not sufficient, there must be a firm intent or a firm purpose to effect an act.

Reckless Disregard & Case Law

Reckless Disregard While it is necessary to prove that the defendant foresaw the risk of injury to others, it is not necessary that he recognized the extent of the injury that would result. R V MOWATT It is quite unnecessary that the accused should have foreseen that his unlawful act might cause physical harm of the gravity described in the section, i.e. a wound or serious physical injury. Foresight “that some physical harm to some person, albeit of a minor character, might result” is all that is required.

Injure & Case Law

Injure – Section 2, Crimes Act 1961 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 be more than merely transitory or trifling.

Grievous Bodily Harm & Case Law

Grievous Bodily Harm GBH can be defined simply as harm that is really serious. DPP V SMITH 'Bodily harm' needs no explanation, 'grievous' means no more and no less than 'really serious'.

Uses

Uses The primary meaning of “use” is to fire it.

Uses in any manner whatever & Case Law

Uses in any manner whatever Can be used as a weapon in any way, including as a club. POLICE v PARKER Uses in any manner is to contemplate a situation short of actually firing the weapon and to present a rifle is equivalent to or means the same thing. R V SWAIN To use in any manner includes taking the firearm from a bag the offender has with him.

Has With Him & Case Law

Has With Him Must knowingly have the firearm with him. R V KELT Having firearm with him requires a very close physical link and a degree of immediate control over the weapon.

DPP V SMITH - GBH

DPP V SMITH'Bodily harm' needs no explanation, 'grievous' means no more and no less than 'really serious'.

R v PEKEPO - A reckless discharge

R v PEKEPOA reckless discharge of a firearm in the general direction of a passer-by who happens to be hit is not sufficient proof. An intention to shoot that person must be established.

R V DONOVAN - Bodily harm

R V DONOVANBodily harm includes any hurt or injury calculated to interfere with the health or comfort of the victim. It need not be permanent but must be more than merely transitory or trifling.

R V HARNEY - Recklessness

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

POLICE v PARKER - Use in any manner whatever

POLICE v PARKERUse in any manner whatever is to contemplate a situation short of actually firing the weapon and to present a rifle is equivalent to or means the same thing.

R V KELT - immediate control

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

TULI V POLICE - Prima facie circumstances

TULI V POLICEPrima facie circumstances are those which are sufficient to show or establish intent in the absence of evidence to the contrary.

158 Homicide defined & Case Law

Homicide defined The following sections of the Crimes Act 1961 define key aspects of homicide offences. 158 Homicide defined Homicide is the killing of a human being by another, directly or indirectly, by any means whatsoever. Homicide must be culpable to be an offence however, in cases of: Manslaughter; an organisation can be convicted as a party to the offence (section 66(1)) Murder, an organisation cannot be convicted as either a principal offender or a party to the offence. This is because the offence carries a mandatory life sentence. Murray Wright Ltd Because the killing must be done by a human being, an organisation (such as a hospital or food company) cannot be convicted as a principal offender:

159 Killing of a child

159 Killing of a child A child becomes a human being within the meaning of this Act when it has completely proceeded in a living state from the body of its mother, whether it has breathed or not, whether it has an independent circulation or not, and whether the navel string is severed or not. The killing of such child is homicide if it dies in consequence of injuries received before, during, or after birth.

160 Culpable homicide

160 Culpable homicide (1) Homicide may be either culpable or not culpable. (2) Homicide is culpable when it consists in the killing of any person— * By an unlawful act; or * By an omission without lawful excuse to perform or observe any legal duty; or * By both combined; or * By causing that person by threats or fear of violence, or by deception, to do an act which causes his death; or * By wilfully frightening a child under the age of 16 years or a sick person. (3) Except as provided in section 178 of this Act, culpable homicide is either murder or manslaughter. (4) Homicide that is not culpable is not an offence.

s160(2)(a) By unlawful act:

s160(2)(a) By unlawful act: The term “unlawful act” is defined in the section 2 of the Crimes Act 1961 as follows: Unlawful Act – means a breach of any Act, regulation, rule, or bylaw. R v Myatt [Before a breach of any Act, regulation or bylaw would be an unlawful act under s 160 for the purposes of culpable homicide] it must be an act likely to do harm to the deceased or to some class of persons of whom he was one.

s160(2)(b) Omission to perform legal duty:

s160(2)(b) Omission to perform legal duty: Culpable homicide includes any death caused by an omission, without lawful excuse, to perform or observe any legal duty as defined by s160(2)(b). Duties imposed by statute are mainly common law duties that have been embodied in statute. The Crimes Act 1961 defines duties to: · provide the necessaries and protect from injury (s151) · provide necessaries and protect from injury to your charges when you are a parent or guardian (s152) * provide necessaries as an employer (s153) * use reasonable knowledge and skill when performing dangerous acts, such as surgery (s155) * take precautions when in charge of dangerous things, such as machinery (s156) * avoid omissions that will endanger life (s157).

s160(2)(c) Unlawful acts and omission of duty: ## Footnote

s160(2)(c) Unlawful acts and omission of duty: Sometimes both unlawful acts and the omission to perform a legal duty are applicable to the same act. For example, to drive a car so recklessly that you kill a pedestrian is both an unlawful act and an omission to observe your duty to take precautions when you are in charge of a dangerous thing (s156).

s160(2)(d) Threats, fear of violence and deception

Threats, fear of violence and deception: s160(2)(d) A person is guilty of culpable murder if they cause the victim by threats, fear of violence or deception to do an act that results in the victim’s death. You must prove that the fear of violence was well founded, but you do not need to show that the deceased’s action was the only means of escape. R v Tomars Formulates the issues in the following way: 1. Was the deceased threatened by, in fear of or deceived by the defendant? 2. If they were, did such threats, fear or deception cause the deceased to do the act that caused their death? 3. Was the act a natural consequence of the actions of the defendant, in the sense that reasonable and responsible people in the defendant’s position at the time could reasonably have foreseen the consequences? 4. Did these foreseeable actions of the victim contribute in a [significant] way to his death? Examples of culpable homicide caused by actions prompted by threats, fear of violence or deception are when a person: · jumps or falls out of a window because they think they are going to be assaulted · jumps into a river to escape an attack and drowns · who has been assaulted and believes their life is in danger, jumps from a train and is killed.

s160(2)(e) Frightening a child or sick person:

s160(2)(e) Frightening a child or sick person: In this instance, the fright need not be a result of fear of violence as under s160(2)(d), but may be caused by any act that frightens the child or sick person, so long as it is done wilfully. “Wilfully frightening” is regarded as “intending to frighten, or at least be reckless as to this”. Adams on Criminal Law “Wilfully” here will require that the offender intended to frighten, or is at least subjectively reckless as to the risk of that. Mens rea should be interpreted as applying to all the elements in s160(2)(e), so that the defendant must at least have been aware of a real risk that the victim is under 16 or sick (Simester and Brookbanks, 3rd ed, Principles of Criminal Law, p541).

162 Death must be within a year and a day

162 Death must be within a year and a day (1) No one is criminally responsible for the killing of another unless the death takes place within a year and a day after the cause of death. (2) The period of a year and a day shall be reckoned inclusive of the day on which the last unlawful act contributing to the cause of death took place. (3) Where the cause of death is an omission to fulfil a legal duty, the period shall be reckoned inclusive of the day on which such omission ceased. (4) Where death is in part caused by an unlawful act and in part by an omission, the period shall be reckoned inclusive of the day on which the last unlawful act took place or the omission ceased, whichever happened last.

163 Killing by influence on the mind

163 Killing by influence on the mind No one is criminally responsible for the killing of another by any influence on the mind alone, except by wilfully frightening a child under the age of 16 years or a sick person, nor for the killing of another by any disorder or disease arising from such influence, except by wilfully frightening any such child as aforesaid or a sick person.

164 Acceleration of death

164 Acceleration of death Every one who by any act or omission causes the death of another person kills that person, although the effect of the bodily injury caused to that person was merely to hasten his death while labouring under some disorder or disease arising from some other cause.

165 Causing death that might have been prevented

165 Causing death that might have been prevented Every one who by any act or omission causes the death of another person kills that person, although death from that cause might have been prevented by resorting to proper means. R v Blaue Those who use violence must take their victims as they find them.

166 Causing injury the treatment of which causes death

166 Causing injury the treatment of which causes death Every one who causes to another person any bodily injury, in itself of a dangerous nature, from which death results, kills that person, although the immediate cause of death be treatment, proper or improper, applied in good faith.

167 Murder defined

167 Murder defined Culpable homicide is murder in each of the following cases: 1. (a) If the offender means to cause the death of the person killed: 2. (b) If the offender means to cause to the person killed any bodily injury that is known to the offender to be likely to cause death, and is reckless whether death ensues or not: 1. (c) If the offender means to cause death, or, being so reckless as aforesaid, means to cause such bodily injury as aforesaid to one person, and by accident or mistake kills another person, though he does not mean to hurt the person killed: 1. (d) If the offender for any unlawful object does an act that he knows to be likely to cause death, and thereby kills any person, though he may have desired that his object should be effected without hurting any one.

168 Further definition of murder

168 Further definition of murder (1) Culpable homicide is also murder in each of the following cases, whether the offender means or does not mean death to ensue, or knows or does not know that death is likely to ensue: 1. (a) If he means to cause grievous bodily injury for the purpose of facilitating the commission of any of the offences mentioned in subsection (2) of this section, or facilitating the flight or avoiding the detection of the offender upon the commission or attempted commission thereof, or for the purpose of resisting lawful apprehension in respect of any offence whatsoever, and death ensues from such injury: 1. (b) If he administers any stupefying or overpowering thing for any of the purposes aforesaid, and death ensues from the effects thereof: (c) If he by any means wilfully stops the breath of any person for any of the purposes aforesaid, and death ensues from such stopping of breath.

172 Punishment of murder

172 Punishment of murder (1) Every one who commits murder is liable to imprisonment for life. (2) Subsection (1) is subject to section 102 of the Sentencing Act 2002.

Attempting to commit an offence

Attempting to commit an offence Section 72, Crimes Act 1961 Definition of attempts (1) Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not. (2) The question whether an act done or omitted with intent to commit an offence is or is not only preparation for the commission of that offence, and too remote to constitute an attempt to commit it, is a question of law. (3) An act done or omitted with intent to commit an offence may constitute an attempt if it is immediately or proximately connected with the intended offence, whether or not there was any act unequivocally showing the intent to commit that offence. R v Murphy When proving an attempt to commit an offence it must be shown that the accused’s intention was to commit the substantive offence. For example, in a case of attempted murder it is necessary for the Crown to establish an actual intent to kill: 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.

s173 Attempt to murder

s173 Attempt to murder s173 creates a separate offence of attempted murder. With an attempt to murder charge, the Crown is responsible for establishing the mens rea and actus rea as set out in s72:

Punishment of attempted murder

Punishment of attempted murder 173 Attempt to murder Every one who attempts to commit murder is liable to imprisonment for a term not exceeding 14 years.

174 Counselling or attempting to procure murder

174 Counselling or attempting to procure murder Every one is liable to imprisonment for a term not exceeding 10 years who incites, counsels, or attempts to procure any person to murder any other person in New Zealand, when that murder is not in fact committed.

175 Conspiracy to murder

175 Conspiracy to murder 1. Every one is liable to imprisonment for a term not exceeding 10 years who conspires or agrees with any person to murder any other person, whether the murder is to take place in New Zealand or elsewhere. 2. For the purposes of this section, the expression To murder includes to cause the death of another person out of New Zealand in circumstances that would amount to murder if the act were committed in New Zealand.

176 Accessory after the fact to murder

176 Accessory after the fact to murder Every one is liable to imprisonment for a term not exceeding 7 years who is an accessory after the fact to murder. The definition of an accessory after the fact is given in section 71(1) of the Crimes Act 1961 R v Mane For a person to be an accessory the offence must be complete at the time of the criminal involvement. One cannot be convicted of being an accessory after the fact of murder when the actus reus of the alleged criminal conduct was wholly completed before the offence of homicide was completed.

177 Punishment of manslaughter

177 Punishment of manslaughter (1) Every one who commits manslaughter is liable to imprisonment for life. v

178 Infanticide

178 Infanticide Where a woman causes the death of any child of hers under the age of 10 years in a manner that amounts to culpable homicide, and where at the time of the offence the balance of her mind was disturbed, by reason of her not having fully recovered from the effect of giving birth to that or any other child, or by reason of the effect of lactation, or by reason of any disorder consequent upon childbirth or lactation, to such an extent that she should not be held fully responsible, she is guilty of infanticide, and not of murder or manslaughter, and is liable to imprisonment for a term not exceeding 3 years.

179 Aiding and abetting suicide

179 Aiding and abetting suicide Every one is liable to imprisonment for a term not exceeding 14 years who— (a) Incites, counsels, or procures any person to commit suicide, if that person commits or attempts to commit suicide in consequence thereof; or (b) Aids or abets any person in the commission of suicide.

180 Suicide pact

180 Suicide pact (1) Every one who in pursuance of a suicide pact kills any other person is guilty of manslaughter and not of murder, and is liable accordingly. (2) Where 2 or more persons enter into a suicide pact, and in pursuance of it one or more of them kills himself, any survivor is guilty of being a party to a death under a suicide pact contrary to this subsection and is liable to imprisonment for a term not exceeding 5 years; but he shall not be convicted of an offence against section 179 of this Act. (3) For the purposes of this section the term suicide pact means a common agreement between 2 or more persons having for its object the death of all of them, whether or not each is to take his own life; but nothing done by a person who enters into a suicide pact shall be treated as done by him in pursuance of the pact unless it is done while he has the settled intention of dying in pursuance of the pact.

181 Concealing dead body of child

181 Concealing dead body of child Every one is liable to imprisonment for a term not exceeding 2 years who disposes of the dead body of any child in any manner with intent to conceal the fact of its birth, whether the child died before, or during, or after birth.

WHERE BODY IS NOT LOCATED

WHERE BODY IS NOT LOCATEDR V HORRY Death should be provable by such circumstances as render it morally certain and leave no ground for reasonable doubt – that the circumstantial evidence should be so cogent and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for.

R v Tomars

R v Tomars Formulates the issues in the following way: 1. Was the deceased threatened by, in fear of or deceived by the defendant? 2. If they were, did such threats, fear or deception cause the deceased to do the act that caused their death? 3. Was the act a natural consequence of the actions of the defendant, in the sense that reasonable and responsible people in the defendant’s position at the time could reasonably have foreseen the consequences? as 4. Did these foreseeable actions of the victim contribute in a [significant] way to his death?

Murray Wright Ltd

Murray Wright Ltd Because the killing must be done by a human being, an organisation (such as a hospital or food company) cannot be convicted as a principal offender:

R v Myatt

R v Myatt [Before a breach of any Act, regulation or bylaw would be an unlawful act under s 160 for the purposes of culpable homicide] it must be an act likely to do harm to the deceased or to some class of persons of whom he was one.

R v Horry

R v Horry Death should be provable by such circumstances as render it morally certain and leave no ground for reasonable doubt – that the circumstantial evidence should be so cogent and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for.

R v Murphy

R v Murphy When proving an attempt to commit an offence it must be shown that the accused’s intention was to commit the substantive offence. For example, in a case of attempted murder it is necessary for the Crown to establish an actual intent to kill:

R v Harpur

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 Mane

R v Mane For a person to be an accessory the offence must be complete at the time of the criminal involvement. One cannot be convicted of being an accessory after the fact of murder when the actus reus of the alleged criminal conduct was wholly completed before the offence of homicide was completed.

R v Blaue

R v Blaue Those who use violence must take their victims as they find them.

Party to

Party – Section 66(1) Crimes Act 1961 1. Everyone is party to and guilty of an offence who: * Actually commits the offence; _or_ * Does or omits an act for the purpose of aiding a ny person to commit the offence; _or_ * Abets any person in the commission of the offence; _or_ * Incites, counsels or procures any person to commit the offence. 1. Where 2 or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of then in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose.

R V PENE - Intention to help or encourage

R V PENE - Intention to help or encourage must exist A party must intentionally help or encourage - it is insufficient if they were reckless as to whether the principal was assisted or encouraged.

R V RENATA - Multiple offenders

R V RENATA - Multiple offenders Three offenders beat the victim to death in the car park of a tavern. The prosecution was unable to establish which blow was the fatal one or which of the three offenders administered it. The court held that where the principal offender cannot be identified, it is sufficient to prove that each individual accused must have been either the principal or a party in one of the ways contemplated by s66(1).

LARKINS V POLICE - Actual proof of assistance

LARKINS V POLICE - Actual proof of assistance is required While it is unnecessary that the principal should be aware that he or she is being assisted, there must be proof of actual assistance. The mere commission of an act intended to have that effect is insufficient. Absence of knowledge by the principal that he is being assisted removes a common foundation for a finding of actual assistance, namely that the principal was able to proceed with his enterprise with the additional confidence gained because his accomplice was on the lookout for unwanted intervention.

ASHTON V POLICE - Legal duty

ASHTON V POLICE - Legal duty An example of a secondary party owing a legal duty to a third person or to the general public is a person teaching another person to drive. That person is, in New Zealand, under a legal duty to take reasonable precautions, because under s156 of the Crimes Act 1961 he is deemed to be in charge of a dangerous thing.

R V RUSSELL - Special relationship

R V RUSSELL - Special relationship The accused was charged with the murder of his wife and two sons. Following an argument between the accused and his wife, the wife, in the presence of the accused, allegedly jumped into a swimming pool with both children, drowning them all. The accused failed to render assistance to his wife or their children. The court held that the accused was morally bound to take active steps to save his children, but by his deliberate abstention from so doing, and by giving the encouragement and authority of his presence and approval to his wife’s act he became an aider and abettor and thus a secondary offender.

R V BETTS AND RIDLEY – Common Intention

R V BETTS AND RIDLEY – Common Intention An offence where no violence is contemplated and the principal offender in carrying out the common aim uses violence, a secondary offender taking no physical part in it would not be held liable for the violence used.

RECEIVING

RECEIVING - Section 246(1) C.A.61 - PENALTY 7 years, 1 year, 3 Mth * Receives WARNER v METROPOLITION POLICE COMMISSIONER SULLIVAN V EARL OF CAITHNESS R v DONNELLY * Any property R v LUCINSKY * Stolen OR Obtained by any other imprisonable offence * Knowing that property to have been stolen or so obtained OR Being reckless as to whether or not the property has been stolen or so obtained R V KENNEDY Simester and Brookbanks: Principals of Criminal Law R v HARNEY

Punishment of Receiving

Punishment of Receiving s247 CA61 Every person who is guilty of receiving is liable as follows: 1. If the value of the property received exceeds $1,000, to imprisonment for a term not exceeding 7 years: 2. If the value of the property received exceeds $500 but does not exceed the sum of $1,000, to imprisonment for a term not exceeding 1 year: 3. If the value of the property received does not exceed $500, to imprisonment for a term not exceeding 3 months.

RECEIVES

RECEIVES SECTION 246(3), CRIMES ACT 1961 (3) The act of receiving any property stolen or obtained by any other imprisonable offence is complete as soon as the offender has, either exclusively or jointly with the thief or any other person, possession of, or control over, the property or helps in concealing or disposing of the property.

POSSESSION

POSSESSIONPossession may be actual or constructive.

ACTUAL POSSESSION

ACTUAL POSSESSION Actual possession arises where the thing in question is in a person's physical custody; it is on or about their person, or immediately at hand.WARNER v METROPOLITION POLICE COMMISSIONERThe term "possession" must be given a sensible and reasonable meaning in its context. Ideally, a possessor of a thing has:• Complete physical control over it• Knowledge of its existence, its situation and its qualities

CONSTRUCTIVE POSSESSION

CONSTRUCTIVE POSSESSION Constructive possession arises when something is not in a person’s physical custody, but they have ready access to it or can exercise control over it. SULLIVAN V EARL OF CAITHNESS "[Possession includes} not merely those who have physical custody of firearms ... but also those who have firearms under their control at their behest, even though for one reason or another they may be kept at [another location]."

RECKLESSNESS

RECKLESSNESSConsciously and deliberately taking an unjustifiable risk.R v HARNEYRecklessness involves foresight of dangerous consequences that could well happen together with an intention to continue the course of conduct regardless of the risk.

PROPERTY

PROPERTY - Section 2, Crimes Act 1961Includes any real or personal property. Any estate or interest in any real or personal property. Anything in action. Any other right of interest.R v LUCINSKYProperty received must be property stolen or obtained by a crime. The property or part of it.

OBTAINS

OBTAINS - Sec. 217, Crimes Act 1961Means obtains or retains for himself or herself or for any other person.

GUILTY KNOWLEDGE

GUILTY KNOWLEDGESIMESTER AND BROOKBANKS: PRINCIPALS OF CRIMINAL LAWKnowing means "correctly believing" ... the defendant may believe something wrongly, but cannot "know" something that is false.R V KENNEDY A guilty knowledge that the thing has been stolen or dishonestly obtained must exist at the time of receiving

VALUE OF THE PROPERTY

VALUE OF THE PROPERTYThe property value is essential to the sentence as per s247, CA 1961.

Concept of title

R v KENNEDY - Intent

R v KENNEDY - IntentThe prosecution must prove intent on the part of the receiver to possess the property.

R v KENNEDY – guilty knowlegde

R v KENNEDY – guilty knowlegdeThe guilty knowledge that the thing has been stolen or dishonestly obtained must exist at the time of receiving.

WARNER v METROPOLITAN POLICE COMMISSIONER – ideal possession

WARNER v METROPOLITAN POLICE COMMISSIONER – ideal possessionIdeally, a possessor of a thing has complete physical control over it; he has knowledge of its existence, its situation and its qualities; he has received it from a person who intends to confer possession of it, and he has himself the intention to possess it exclusively of others.

SULLIVAN v EARL OF CAITHNESS – constructive possession

SULLIVAN v EARL OF CAITHNESS – constructive possession Possession includes “not merely those who have physical custody of firearms ... but also those who have firearms under their control at their behest, even though for one reason or another they may be kept at [another location].”

R v LUCINSKY – property stolen/illegally obtained

R v LUCINSKY – property stolen/illegally obtainedThe property received must be the property stolen or illegally obtained (or part thereof), and not some other item for which the illegally obtained property had been exchanged or which are the proceeds.

R v HARNEY - recklessness

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

R v DONNELLY – stolen property returned

R v DONNELLY – stolen property returnedWhere stolen property has been physically recovered by the Police, it is legally impossible to commit the crimes of receiving or attempted receiving in respect of it, although there may be evidence of conspiring to receive property dishonestly obtained.

ROBBERY

ROBBERY s234 CA61 – Penalty 10 years * Theft R V SKIVINGTON. R V LAPIER WARNER v METROPOLITION POLICE COMMISSIONER SULLIVAN V EARL OF CAITHNESS * Accompanied by violence OR threats of violence R V MAIHI PENEHA v POLICE R v BROUGHTON * To any person OR property * Used to extort the property stolen OR to prevent or overcome resistance to it being stolen

AGGRAVATED ROBBERY (a)

AGGRAVATED ROBBERY s235(a) CA61 – Penalty 14 years * Robs * Any person * And at the time OR immediately before OR immediately after * Causes GBH DPP V SMITH * To any person

AGGRAVATED ROBBERY(b)

AGGRAVATED ROBBERY s235(b) CA61 – Penalty 14 years * Being together with any other person R v JOYCE R v GALEY * Robs * Any person

AGGRAVATED ROBBERY(c)

AGGRAVATED ROBBERY s235(c) CA61 – Penalty 14 years * Being armed with an offensive weapon OR Instrument OR anything appearing to be such and offence weapon or instrument R v BENTHAM * Robs * Any person

ASSAULT WITH INTENT TO ROB (1)(a)

ASSAULT WITH INTENT TO ROB s236(1)(a) CA61 – Penalty 14 years With intent R v MOHAN R v WAAKA To rob Any person Causes GBH to DPP v SMITH That person or any other person

ASSAULT WITH INTENT TO ROB (1)(b)

ASSAULT WITH INTENT TO ROB s236(1)(b) CA61 – Penalty 14 years * With intent R v MOHAN R v WAAKA * To rob * Any person * Being armed with an offensive weapon OR Instrument OR anything appearing to be such and offence weapon or instrument R v BENTHAM * Assaults * That person or any other person

ASSAULT WITH INTENT TO ROB(1)(c)

ASSAULT WITH INTENT TO ROB s236(1)(c) CA61 – Penalty 14 years * With intent R v MOHAN R v WAAKA * To rob * Any person * Being together with any other person R v JOYCE R v GALEY * Assaults * That person or any other person

Demanding with intent to steal, etc

Demanding with intent to steal, etc s239 CA 1961 1. Every one is liable to imprisonment for a term not exceeding 14 years who: * without claim of right, * by force or with any threat, * compels any person to * execute OR make OR accept OR endorse OR alter OR destroy * any document * capable of conferring * a pecuniary advantage with * intent to obtain any benefit. 1. Every one is liable to imprisonment for a term not exceeding 7 years who, with menaces or by any threat, demands any property from any persons with intent to steal it.

WOUNDING WITH INTENT TO CAUSE GBH (1)

WOUNDING WITH INTENT TO CAUSE GBH s188(1) CA61 – 14 years * With intent R v MOHAN R v WAAKA R v TAISALIKA * To cause GBH DPP v SMITH * To anyone * Wounds OR maims OR Disfigures OR Causes GBH R v WATERS Q v RAPANA & MURRAY DPP v SMITH * To any person

WOUNDING WITH INTENT TO INJURE (2)

WOUNDING WITH INTENT TO INJURE s188(2) CA61 – 7 years * With intent R v MOHAN R v WAAKA R v TAISALIKA * To injure OR with reckless disregard for the safety of others R v DONOVAN R v HARNEY * Wounds OR maims OR Disfigures OR Causes GBH R v WATERS Q v RAPANA & MURRAY DPP v SMITH * To any person

INJURING WITH INTENT TO CAUSE GBH (1)

INJURING WITH INTENT TO CAUSE GBH s189(1) CA61 – 10 years * With intent R v MOHAN R v WAAKA R v TAISALIKA * To cause GBH DPP v SMITH * To any person * Injures R v DONOVAN * To any person

INJURING WITH INTENT TO INJURE (2)

INJURING WITH INTENT TO INJURE s189(2) CA61 – 5 years * With intent to R v MOHAN R v WAAKA R v TAISALIKA * Injure OR with reckless disregard for the safety of others R v DONOVAN R v HARNEY * Injures R v DONOVAN * To any person

AGGRAVATED WOUNDING (1)

AGGRAVATED WOUNDING s191(1)(a) or (b) or (c) CA61 – 14 years * With intent to R v MOHAN R v WAAKA R v TIHI 1. To commit OR facilitate the commission of any imprisonable offence OR 2. To avoid the detection of himself or any other person in the commission of any imprisonable offence OR 3. To avoid the arrest or facilitate the flight of himself or any other person upon the commission or attempted commission of any imprisonable offence R v WATI R v STRUM * Wounds OR maims OR disfigures OR causes GBH OR stupefies OR renders unconscious OR by any violent means renders incapable of resistance R v WATERS Q v RAPANA & MURRAY DPP v SMITH R v STRUM R v CROSSAN * Any person

AGGRAVATED WOUNDING (2)

AGGRAVATED WOUNDING s191(2) CA61 – 7 years Every one is liable to imprisonment for a term not exceeding 7 years who: * with any such intent as aforesaid (1) * injures * any person.

THEFT

THEFT - Section 219(1), Crimes Act 1961 * Dishonestly * without claim of right * takes * any property * with intent to * deprive any owner permanently of that property or of any interest in that property. * Theft is complete the moment the item is moved with the intent to steal it. 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 ingredients in the offence of robbery, without proof of which the full offence is not made out.” R V LAPIER Robbery is complete the instant the property is taken, even if possession by the thief is only momentary.

PROPERTY

PROPERTY - s2, Crimes Act 1961Property includes real and personal property, and any estate or interest in any real or personal property, [money, electricity,] and any thing in action and any other right or interest.

ASSAULT

ASSAULT – s2, Crimes Act 1961assault means the act of intentionally applying or attempting to apply force to the person of another, directly or indirectly, or threatening by any act or gesture to apply such force to the person of another, if the person making the threat has, or causes the other to believe on reasonable grounds that he has, present ability to effect his purpose.

PROVING INTENT/INFERRED INTENT

PROVING INTENT/INFERRED INTENTCircumstantial evidence from which an offender’s intent may be inferred can include:• the offender’s actions and words before, during and after the event • the surrounding circumstances • the nature of the act itself. R v COLLISTER The demeanour of the prisoner and the circumstances of the case are such that an ordinary reasonable man would understand that a demand for money was being made on him

VIOLENCE

VIOLENCE In the context of robbery, must be more than a minimal degree of force and more than a technical assault but does not require physical bodily injury. Whether or not the degree of violence used is sufficient to amount to robbery is a matter of fact for determination in each case. PENEHA v POLICE It is sufficient that the actions of the defendant forcibly interfere with personal freedom or amount to forcible, powerful or violent action or motion producing a very marked or powerful effect tending to cause bodily injury or discomfort.

Threats

Threats A threat of violence is generally a direct or veiled warning that violence will be used if the victim does not submit to the demands of the robber. However threats may also be conveyed by inference through the defendant’s conduct, demeanour or even appearance, depending on the circumstances. In the context of robbery, violence must involve more than a minimal degree of force and more than a technical assault, but need not involve the infliction of bodily injury. Whether or not the degree of violence used is sufficient to amount to robbery is a matter of fact for determination in each case. R v BROUGHTON A threat of violence is “the manifestation of an intention to inflict violence unless the money or property be handed over. The threat may be direct or veiled. It may be conveyed by words or conduct, or a combination of both.”

Extort

Extort To “extort” means “to obtain by coercion or intimidation.” Extortion implies an overbearing of the will of the victim, and the prosecution must show that the threats induced the victim to part with his property.

To Prevent

To Prevent To “prevent or overcomes” means “to keep from happening.”

Overcome

Overcome To “defeat; to prevail over; to get the better of in a conflict.”

ROBS

ROBS Robbery - Section 234(1), CA61 Theft accompanied by violence or threats of violence to any person or property used to extort the property stolen or used to overcome resistance to the property being stolen. All ingredients must be proved.

Causes

Causes Person causes GBH if his actions make him criminally responsible for it.

Grievous Bodily Harm

Grievous Bodily Harm GBH can be defined as harm that is really serious. DPP v SMITH Bodily harm needs no explanation, grievous means no more and no less than really serious.

PERSON

PERSON Gender neutral proven by judicial notice or circumstantial evidence

At the time

At the time During the commission of the theft, at the time of taking with the required intent.

Being together with

Being together with: There must be proof that, in committing the robbery, the defendant was part of a joint enterprise by two or more persons who were physically present at the robbery. R v JOYCE Crown must establish that at least two persons were physically present at the time of the robbery was committed or assault occurred. R v GALEY “Being together” in the context of S235(b) involves two or more persons having a common intention to use combined force either in any event or as circumstances might require, directly in the perpetration of the crime.”

Being Armed

Being Armed The defendant is carrying the item or has it available for immediate use as a weapon.

Offensive Weapon

Offensive Weapon – Section 202A (1) Crimes Act 1961 Any article made or altered for the use of causing bodily injury or intended by the person having it with him for such a use.

Instrument

Instrument Not defined by statute but will include any item intended to be used as a weapon or to intimidate and overbear the victims will to resist.

Anything appearing as such

Anything appearing as such It must be proved both that the appeared to be an offensive weapon or instrument to the victim and that the defendant intended or was at least reckless as to the possibility that it would be perceived as a weapon. R V BENTHAM A “thing” does not include a part of a person’s body.

Intent

Intent A person does something intentionally if the mean to do it. They desire a specific result and act with the aim or purpose of achieving it. (MOHAN, WAKKA & MOHI). R v Mohan Intent involves “a decision to bring about, in so far as it lies within the accused’s power, the commission of the offence R v Waaka A “fleeting or passing thought” is not sufficient; there must be a “firm intent or a firm purpose to effect an act” 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.

Grievous bodily harm

Grievous bodily harm 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”.

Actual bodily harm

Actual bodily harm Actual bodily harm may be internal or external, and it need not be permanent or dangerous. 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.

PERSON

PERSON Gender neutral proven by judicial notice or circumstantial evidence

WOUND

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

MAIMS

MAIMS Will involve mutilating, crippling or disabling a part of the body so the victim is deprived of the use of a limb or one of the senses.

DISFIGUREMENT

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

Reckless Disregard

COMMIT

COMMIT To do, perform, perpetrate

FACILITATE

FACILITATE To make possible or to make easy or easier.

IMPRISONABLE OFFENCE

IMPRISONABLE OFFENCE Normal meaning – any offence punishable by a term of imprisonment

Avoid Detection

Avoid Detection Offender causes the specified harm to prevent himself or another person from being caught in the act.

Avoid Arrest

Avoid Arrest Acts done by offenders to avoid their own or other's arrest

INTENT & OFFENCE PROVEN (Two-fold test for intent)

INTENT & OFFENCE PROVEN (Two-fold test for intent) In R v Tihi it was held that in proving an offence against s191, 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 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”.

Stupefy

Stupefy R V STURM 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.

RENDER UNCONCIOUS

RENDER UNCONCIOUS To cause to be rendered unconscious. Must cause victim to lose consciousness.

Incapable of Resistance

Incapable of Resistance R V CROSSAN 'Incapable of resistance' includes a powerlessness of the will as well as a physical incapacity.

R v SKIVINGTON

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 ingredients in the offence of robbery, without proof of which the full offence is not made out.”

R v LAPIER

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

R v MAIHI

R v MAIHI “It is implicit in ‘accompany’ that there must be a nexus (connection or link) between the act of stealing ... and a threat of violence. Both must be present.” However the term “does not require that the act of stealing and the threat of violence be contemporaneous ...”

PENEHA v POLICE

PENEHA v POLICE It is sufficient that “the actions of the defendant forcibly interfere with personal freedom or amount to forcible powerful or violent action or motion producing a very marked or powerful effect tending to cause bodily injury or discomfort”.

R v BROUGHTON

R v BROUGHTON A threat of violence is “the manifestation of an intention to inflict violence unless the money or property be handed over. The threat may be direct or veiled. It may be conveyed by words or conduct, or a combination of both.”

R v JOYCE

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.”

R v GALEY

R v GALEY “Being together” in the context of s235(b) involves “two or more persons having the common intention to use their combined force, either in any event or as circumstances might require, directly in the perpetration of the crime.”

R v MOHAN & R v WAAKA

R v MOHAN Intent involves “a decision to bring about, in so far as it lies within the accused’s power, the commission of the offence R v WAAKA A “fleeting or passing thought” is not sufficient; there must be a “firm intent or a firm purpose to effect an act”

R v TAISALIKA

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.

DPP v SMITH

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

R v WATERS

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

R v DONOVAN

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.

R v HARNEY

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

R v TIHI

R v TIHIIn 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”.

No presumption because of age

s127, CA 1961 - No presumption because of age There is no presumption of law that a person is incapable of sexual connection because of his or her age. This provision means that any person of any age is capable, in a legal sense, of being involved in sexual connection. Therefore it would not be a defence to a sex-related charge to say that either of the parties was too young or too old to have sexual connection.

Sexual violation defined

s128, CA 1961 - Sexual violation defined (1) Sexual violation is the act of a person who— 1. rapes another person; or 2. has unlawful sexual connection with another person. (2) Person A rapes person B if person A has sexual connection with person B, effected by the penetration of person B's genitalia by person A's penis,— 1. without person B's consent to the connection; _and_ 2. without believing on reasonable grounds that person B consents to the connection. (3) Person A has unlawful sexual connection with person B if person A has sexual connection with person B — 1. without person B's consent to the connection; _and_ 2. without believing on reasonable grounds that person B consents to the connection. (4) One person may be convicted of the sexual violation of another person at a time when they were married to each other.

Attempted sexual violation & assault with intent to commit sexual violation

s129, CA 61 - Attempted sexual violation and assault with intent to commit sexual violation 1. Every one who _attempts_ to _commit sexual violation_ is liable to imprisonment for a term not exceeding _10 years_. 2. Every one who _assaults_ another _person_ with _intent to commit sexual violation_ of the other person is liable to imprisonment for a term not exceeding _10 years_.

Sexual conduct with child under 12

s132, CA 61 - Sexual conduct with child under 12 (1) Every one who _has_ _sexual connection_ with a _child_ is liable to imprisonment for a term not exceeding _14 years_. (2) Every one who _attempts_ to have _sexual connection_ with a _child_ is liable to imprisonment for a term not exceeding _10 years_. (3) Every one who _does_ an _indecent act_ on a _child_ is liable to imprisonment for a term not exceeding _10 years_. (4) It is _not a defence_ to a charge under this section that the person charged, _believed that the child_ was of or _over the age of 12 years._ (5) It is _not a defence_ to a charge under this section that the _child consented_. (6) In this section,— 1. _child_ means a person under the age of 12 years; _and_ 2. doing an _indecent act_ on a child _includes_ _indecently assaulting_ the child.

Sexual conduct with a young person under 16

s134, CA 61 - Sexual conduct with a young person under 16 (1) Every one who _has sexual connection_ with a _young person_ is liable to imprisonment for a term not exceeding _10 years_. (2) Every one _who attempts_ to have _sexual connection_ with a _young person_ is liable to imprisonment for a term not exceeding _10 years_. (3) Every one who _does an indecent act_ on a _young person_ is liable to imprisonment for a term not exceeding _7 years_. (4) _No person can be convicted_ of a charge under this section _if he or she was married_ to the _young person_ concerned _at the time_ of the _sexual connection_ or _indecent act_ concerned. (5) The _young person_ in respect of whom an offence against this section was committed _cannot be charged as a party_ to the offence _if the person who committed the offence_ was of or _over_ the age of _16 years_ _when the offence was committed_. (6) In this section,— 1. _young person_ means a person under the age of 16 years; _and_ 2. _doing an indecent act_ on a _young person includes indecently assaulting_ the young person.

Defence to charge under section 134

s134A, CA 61 - Defence to charge under section 134 (1) It is a defence to a charge under section 134 if the person charged proves that, — 1. _before_ the _time of the act_ concerned, he or she had _taken reasonable steps_ to _find out_ whether the _young person_ concerned was _of or over the age of 16_ years; **_and_** 2. _at_ the _time of the act_ concerned, he or she _believed on reasonable grounds_ that the _young person_ was _of or over the age of 16_ years; **_and_** 3. the _young person_ _consented_. (2) Except to the extent provided in subsection (1),— 1. it is _not a defence_ to a charge under section 134 that the _young person_ concerned _consented_; **_and_** 2. it is _not a defence_ to a charge under section 134 that the _person charged believed_ that the _young person_ concerned was _of or over the age of 16_ years.

Indecent assault

s135, CA61 - Indecent assault Every one is liable to imprisonment for a term not exceeding 7 years who * indecently * assaults * another person.

Assault on a child, or by a male on a female

s194 CA61, Assault on a child, or by a male on a female Every one is liable to imprisonment for a term not exceeding 2 years who — * Assaults * any child under the age of 14 years; _or_ * Being a male * assaults any female.

s195 Ill-treatment or neglect of child or vulnerable adult

s195 CA61 - Ill-treatment or neglect of child or vulnerable adult (1) Every one is liable to imprisonment for a term not exceeding 10 years who, being a person described in subsection (2), * intentionally * engages in conduct that, or * omits to discharge or perform any legal duty the omission of which, * is likely to cause suffering, injury, adverse effects to health, or any mental disorder or disability * to a child or vulnerable adult (the victim) * if the conduct engaged in, or the omission to perform the legal duty, * is a major departure from the standard of care to be expected of a reasonable person. (2) The persons are— (a) a person who has actual care or charge of the victim; _or_ (b) a person who is a staff member of any hospital, institution, or residence where the victim resides. (3) For the purposes of this section and section 195A, a child is a person under the age of 18 years.

s195A - Failure to protect child or vulnerable adult

s195A - Failure to protect child or vulnerable adult 1. Every one is liable to imprisonment for a term not exceeding 10 years who, being a person described in subsection (2), has frequent contact with a child or vulnerable adult (the victim) _and_ — 1. knows that the victim is at risk of death, grievous bodily harm, or sexual assault as the result of— 1. an unlawful act by another person; _or_ 2. an omission by another person to discharge or perform a legal duty if, in the circumstances, that omission is a major departure from the standard of care expected of a reasonable person to whom that legal duty applies; and 2. fails to take reasonable steps to protect the victim from that risk. 2. The persons are — 1. a member of the same household as the victim; _or_ 2. a person who is a staff member of any hospital, institution, _or_ residence where the victim resides. 3. A person may not be charged with an offence under this section if he or she was under the age of 18 at the time of the act or omission. 4. For the purposes of this section, — 1. a person is to be regarded as a member of a particular household, even if he or she does not live in that household, if that person is so closely connected with the household that it is reasonable, in the circumstances, to regard him or her as a member of the household: 2. where the victim lives in different households at different times, the same household refers to the household in which the victim was living at the time of the act or omission giving rise to the risk of death, grievous bodily harm, or sexual assault. 5. In determining whether a person is so closely connected with a particular household as to be regarded as a member of that household, regard must be had to the frequency and duration of visits to the household and whether the person has a familial relationship with the victim and any other matters that may be relevant in the circumstances

Sexual violation defined

s128, CA 1961 - Sexual violation defined 1. _Sexual violation_ is the act of a person who— 1. rapes another person; or 2. has unlawful sexual connection with another person. 2. Person A _rapes_ person B if person A has sexual connection with person B, effected by the penetration of person B's genitalia by person A's penis,— 1. without person B's consent to the connection; _and_ 2. without believing on reasonable grounds that person B consents to the connection. 3. Person A has _unlawful sexual connection_ with person B if person A has sexual connection with person B — 1. without person B's consent to the connection; _and_ 2. without believing on reasonable grounds that person B consents to the connection. 4. One person may be convicted of the sexual violation of another person at a time when they were married to each other.

RAPE DEFINED

s128(2) – RAPE DEFINED 1. Person A rapes person B if person A has sexual connection with person B, effected by the penetration of person B's genitalia by person A's penis,— 1. without person B's consent to the connection; and 2. without believing on reasonable grounds that person B consents to the connection.

Genitalia

s2, CA61 - Genitalia Includes a surgically constructed or reconstructed organ analogous to naturally occurring male or female genitalia (whether the person concerned is male, female, or of indeterminate sex)

Penis

Penis The male organ of reproduction Penis - s2, CA61 Includes a surgically constructed or reconstructed organ analogous to naturally occurng penis. (whether the person concerned is male, female or of indeterminate sex).

Consent

Consent Consent is a person’s conscious and voluntary agreement to do something desired or proposed by another. R v COX Consent must be 'full, voluntary, free and informed…freely and voluntarily given by a person in a position to form a rational judgement'.

Non consent under certain circumstances

s128A, CA 61 - Non consent under certain circumstances A person does not consent to sexual activity under certain circumstances. Matters that do not constitute consent: * not protesting or offering physical resistance use of force, threats of force, or fear of force * asleep or unconscious * so affected by alcohol / drugs they cannot consent * so affected by mental or physical impairment they cannot consent * mistaken ID * mistaken as to nature and quality of the act

Reasonable Grounds

Reasonable Grounds (a 3 step process): * Subjective test – Absence of consent - What was the complainant thinking at the time? Was she consenting? * Subjective test – Belief in consent -If she wasn't consenting, did the offender believe she was consenting? What was the offender thinking at the time. * Objective test – Reasonable grounds for belief in consent - If the offender believed complainant was consenting, was that belief reasonable in the circumstances. Ie what would a reasonable person have believed if placed in the same position as the defendant? R v GUTUAMA Under the objective test the crown must prove that “no reasonable person in the accused's shoes could have thought that the complainant was consenting."

PROOF OF AGE

PROOF OF AGE In practice this generally involves producing the victim's birth certificate in conjunction with independent evidence that identifies the victim as the person named in the certificate. R v FORREST AND FORREST The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victim’s age.

Unlawful Sexual Connection

s128(3) CA61 – Unlawful Sexual Connection 3) Person A has unlawful sexual connection with person B if person A has sexual connection with person B — (a) without person B's consent to the connection; and (b) without believing on reasonable grounds that person B consents to the connection.

Slightest degree of penetration is sufficient

s2(1A), CA 61 - Slightest degree of penetration is sufficient (1A) For the purposes of paragraph (a) of the definition in subsection (1) of “sexual connection”, introduction to the slightest degree is enough to effect a connection. So, while under paragraph (a) penetration of the genitalia or anus must be proved, the extent of penetration is not relevant; any degree of penetration, no matter how slight or fleeting, is sufficient.

s134(6), CA 61 - Sexual conduct with a young person under 16

s134(6), CA 61 - Sexual conduct with a young person under 16 6) In this section,— young person means a person under the age of 16 years

s132(6), CA 61 - Sexual conduct with child under 12

s132(6), CA 61 - Sexual conduct with child under 12 (6) In this section,— child means a person under the age of 12 years

indecent act

indecent act An ‘indecent act’ is generally accepted to be an act accompanied by circumstances of indecency. Indecent acts are usually consensual acts. In age-specific sexual offences, doing an indecent act with a child or young person can also include indecently assaulting that child or young person.

Indecent assault

s135, CA61 - Indecent assault Every one is liable to imprisonment for a term not exceeding 7 years who: * indecently * assaults * another person. R v Leeson “The definition of ’indecent assault’ ... is an assault accompanied with circumstances of indecency ...”

R v KOROHEKE

R v KOROHEKE The genitalia comprise the reproduction organs, interior and exterior ... they include the vulva [and] the labia, both interior and exterior, at the opening of the vagina.

R v COX

R v COX Consent must be “full, voluntary, free and informed ... freely and voluntarily given by a person in a position to form a rational judgment”.

R v GUTUAMA

R v GUTUAMA Under the objective test the Crown must prove that “no reasonable person in the accused's shoes could have thought that [the complainant] was consenting”.

R v HARPUR

R v HARPUR An attempt includes “an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime”.

R v FORREST AND FORREST

R v FORREST AND FORREST “The best evidence possible in the circumstances should be adduced by the prosecution in proof of [the victim's] age.”

R v COURT

R v COURT Indecency means “conduct that right-thinking people will consider an affront to the sexual modesty of [the complainant]”.

R v LEESON

R v LEESON “The definition of ’indecent assault’ ... is an assault accompanied with circumstances of indecency ...”

s8 Consideration of just cause for continued detention

s8 Consideration of just cause for continued detention (1) In _considering_ whether there is _just cause for continued detention_, the _court must take into account_— (a) _whether there is a ... risk_ that— (i) the _defendant may fail to appear_ in court on the date to which the defendant has been remanded; **or** (ii) the may _interfere_ with _witnesses or evidence_; **or** (iii) the defendant may _offend while on bail_; **and** (b) _any matter_ that _would make it unjust to detain_ the defendant. (2) In _considering_ whether there is _just cause for continued detention_ under subsection (1), _the court may take into account_ the following: (a) the _nature of the offence_ with which the defendant is charged, and _whether it is a grave or less serious_ one of its kind: (b) the _strength of the evidence_ and the _probability of conviction_ or otherwise: (c) the _seriousness of the punishment_ to which the _defendant is liable_, and the _severity of the punishment_ that is _likely_ to be imposed: (d) the _character and past conduct or behaviour_, in particular _proven criminal behaviour_, of the defendant: (e) whether the defendant has a _history of offending while on bail_, or _breaching court orders_, including orders imposing bail conditions: (f) the likely _length of time before_ the matter comes to _hearing or trial_: (g) the possibility of p_rejudice to the defence_ in the _preparation of the defence_ if the defendant is remanded in custody: (h) _any other special matter_ that is relevant in the particular circumstances.

s40 Warrant to remove child or young person

40 Warrant to remove child or young person (1) Where an application for a declaration under section 67 of this Act has been made in respect of a child or young person, _any District Court Judge_ or, if no District Court Judge is available, [any issuing officer (within the meaning of section 3 of the Search and Surveillance Act 2012) _may_, on _application in writing_ verified in accordance with section 99 of that Act], where there are _reasonable grounds for believing_ that the _child or young person is_— (a) _Suffering, or is likely to suffer, ill-treatment, serious neglect, abuse, serious deprivation, or serious harm_; **or** (b) So _seriously disturbed_ as to be _likely_— (i) To _act in a manner harmful_ to the _child or young person_ or _any other person_; **or** (ii) To _cause serious damage to property_, — _issue a warrant_ _authorising_ any _[constable] or a Social Worker_, either by name or generally, to _search for the child or young person._ (2) An _application for a warrant under_ subsection (1) of this section _may be made by a [constable] or a Social Worker_. (3) The _alleged commission of an offence_ shall _not_ of itself be _sufficient grounds_ for the _issue_ of a _warrant_ under this section. (4) _Any person authorised_ by _warrant_ under this section _to search for any child or young person may_— (a) _Enter and search_, by _force if necessary_, any _dwellinghouse, building, aircraft, ship, carriage, vehicle, premises or place_: (b) Either— (i) _Remove or detain_, by f_orce if necessary_, the _child or young person_ and _place_ the child or young person _in the custody of the [chief executive]_; **or** (ii) Where the _child or young person_ is _in a hospital_, direct the _Medical Superintendent_ of that hospital _to keep that child or young person_ in that hospital. (5) Where _any direction_ is issued pursuant to _subsection (4)(b)(ii)_ of this section in respect of any child or young person, that child or young person shall be _deemed_ to have been _placed in the custody of the [chief executive]_ pursuant to this section.

s42 Search without warrant

42 Search without warrant (1) Any [_constable_] who _believes on reasonable grounds_ that it is _critically necessary_ to _protect_ a _child or young person_ from _injury or death_ may, _without warrant_,— (a) _Enter and search_, by _force if necessary_, any _dwellinghouse, building, aircraft, ship, carriage, vehicle, premises or place_: (b) _Remove or detain_, by _force if necessary_, the _child or young person_ and _place_ the _child or young person_ in the _custody of the_ _[chief executive]_. (2) Every [_constable_] who _exercises any powers_ conferred by subsection (1) of this section _shall_, on first _entering_ any _dwellinghouse, building, aircraft, ship, carriage, vehicle, premises or place_, and _if requested_, at any subsequent time,— (a) _ Produce evidence of identity_; **and** (b) _Disclose_ that those _powers_ are being _exercised_ under this section. (3) A [_constable_] who _exercises the power_ conferred by subsection (1) of this section shall, _within 3 days after_ the day on which the _power is exercised_, forward to the _Commissioner of Police_ a _written report_ on the _exercise of the power_ and the _circumstances_ in which it came to be exercised.

s214 Arrest of child or young person without warrant

214 Arrest of child or young person without warrant (1) Subject to [section 214A and] sections 233 and 244 of this Act, where, under any enactment, any _enforcement officer_ has a _power of arrest without warrant_, that _officer shall not arrest_ a _child or young person_ pursuant to that power _unless_ that officer is _satisfied, on reasonable grounds_,— (a) That it is _necessary_ to _arrest that child or young person_ _without warrant_ for the purpose of— (i) _Ensuring the appearance_ of the child or young person before the _Court_; **or** (ii) _Preventing_ that child or young person from _committing further offences_; **or** (iii) _Preventing_ the _loss or destruction of evidence_ relating to an offence committed by the child or young person or an offence that the enforcement officer has reasonable cause to suspect that child or young person of having committed, or _preventing_ _interference with any witness_ in respect of any such offence; **and** (b) Where the _child or young person_ _may_ be _proceeded against by way of summons_, that proceeding by way of _summons would not achieve that purpose_. (2) _Nothing_ in subsection (1) of this section _prevents a [constable] from arresting_ a _child or young person_ _without warrant_ on a _charge of any offence_ where— (a) The [constable] has _reasonable cause to suspect_ that the _child or young person_ has _committed_ a [_category 4 offence or category 3 offence_ for which the _maximum penalty_ available is or includes _imprisonment_ for l_ife or for at least 14 years_]; **and** (b) The [constable] _believes, on reasonable grounds_, that the _arrest of the child or young person_ is required in the _public interest_. (3) Every _enforcement officer_ who _arrests_ a _child or young person_ _without warrant_ shall, _within 3 days_ of making the arrest, _furnish a written_ _report_— (a) Where that enforcement officer is a [_constable_], to the _Commissioner of Police_: [(b) Where that enforcement officer is a _traffic officer_ who is a [[Police employee who is not a constable]], to the _Commissioner of Police_:] (c) Where that enforcement officer is an _officer or employee of the Public Service_, to the _chief executive of the Department_ of which that person is an officer or employee: (d) Where that enforcement officer is an _officer of a local authority_, to the _[chief executive]_ of that local authority. (4) Every report furnished pursuant to subsection (3) of this section in respect of the arrest of any child or young person shall _state the reason_ why the _child or young person was arrested_ without warrant.

s215 Child or young person to be informed of rights before questioned by enforcement officer

215 Child or young person to be informed of rights before questioned by enforcement officer (1) Subject to sections 233 and 244 of this Act, every enforcement officer shall, before questioning any child or young person [whom there are _reasonable grounds to suspect_ of having _committed an offence_, or _before asking_ any _child or young person_ _any question_ intended _to obtain an admission_ of an offence], _explain_ to that _child or young person_— (a) Subject to subsection (2) of this section, if the circumstances are such that the _enforcement officer_ would have _power to arrest_ the _child or young person_ _without warrant_, that the child or young person may be arrested _if,_ by _refusing to give his or her name and address_ to the enforcement officer, the _child or young person_ _cannot be served_ with a _summons_; **and** (b) Subject to subsection (2) of this section, that the _child or young person_ is _not obliged to accompany_ the enforcement officer _to any place_ for the _purpose of being questioned_, and that _if_ the _child or young person_ _consents_ to do so, that he or she _may withdraw that consent_ at any time; **and** (c) That the _child or young person_ is under n_o obligation to make or give any statement_; **and** (d) That _if_ the _child or young person_ _consents_ to _make or give a statement_, the child or young person _may withdraw that consent_ at any time; **and** (e) That _any statement made or given_ may be _used in evidence_ in any proceedings; **and** (f) That the child or young person is _entitled to consult with_, _and make or give any statement_ in the _presence_ of, a _barrister or solicitor and any person nominated_ by the child or young person in accordance with section 222 of this Act. (2) _Nothing in paragraph (a) or (b)_ of subsection (1) of this section _applies_ where the _child or young person is under arrest_. [(3) Without limiting subsection (1) of this section, where_, during the course of questioning_ a _child or young person_, an _enforcement officer_ _forms the view_ that there are _reasonable grounds to suspect_ the _child or young person_ of having _committed an offence_, the _enforcement officer shall_, _before continuing the questioning_, _give the explanation required_ by that subsection.]

s218 Explanations to be given in manner and language appropriate to age and level of understanding of child or young person

218 Explanations to be given in manner and language appropriate to age and level of understanding of child or young person _Every explanation required to be given_ to a _child or young person_ pursuant to section 215 (or s215A or s216 or s217 )of this Act shall be _given in a manner and in language_ that is _appropriate_ to the _age and level of understanding_ of the _child or young person_.

s222 Persons who may be nominated for the purposes of section 221(2)(b) or (c)

222 Persons who may be nominated for the purposes of section 221(2)(b) or (c) (1) Subject to subsection (2) of this section, a _child or young person_ may _nominate_ one of _the following persons_ for the purposes of section 221(2)(b) or (c) of this Act: (a) A _parent or guardian_ of the child or young person: (b) An _adult member of the family, whanau, or family group_ of the child or young person: (c) _Any other adult selected_ by the child or young person: (d) _If_ the _child or young person refuses or fails to nominate_ any person referred to in any of paragraphs (a) to (c) of this subsection, _any adult_ (not being an enforcement officer) _nominated_ for the purpose _by an enforcement officer_. (2) Where an _enforcement officer believes, on reasonable grounds_, that any _person nominated_ by a child or young person pursuant to subsection (1)(a) or (b) or (c) of this section,— (a) _If permitted to consult_ with the _child or young person_ pursuant to section 221(2)(b) of this Act, _would attempt_, or would be _likely to attempt_, to _pervert the course of justice_; **or** (b) _Cannot with reasonable diligence be located_, _or_ will _not be available within a period_ of time that is _reasonable_ in the circumstances, — that enforcement _officer may refuse_ to allow the _child or young person_ to _consult with that person_. (3) _Where_, pursuant to subsection (2) of this section, a _child or young person is not permitted to consult_ with a _person nominated_ by that _child or young person_ pursuant to subsection (1) of this section, that _child or young person shall_, subject to _subsection (2)_ of this section, _be permitted to consult with any other person nominated_ by that _child or young person_ pursuant to subsection (1) of this section. (4) It is the _duty of any person nominated_ pursuant to subsection (1) of this section— (a) To take _reasonable steps to ensure_ that the _child or young person understands_ the matters explained to the child or young person under section 221(2)(a) of this Act; **and** (b) To _support the child or young person_— (i) _Before and during any questioning_; **and** (ii) _If_ the _child or young person agrees_ to make or give any _statement_, _during the making or giving_ of the statement.]

s13 Full disclosure

13 Full disclosure [(1) The _prosecutor must disclose_ to the _defendant_ the _information described in subsection (2)_ as _soon as is reasonably practicable_ after a _defendant has pleaded not guilty_.] (2) The _information referred_ to in subsection (1) is— (a) _any relevant information_, including, without limitation, the information (standard information) described in subsection (3); and (b) a _list of any relevant information_ that the _prosecutor refuses_ under _s15, 16, 17, or 18_ _to_ _disclose_ to the defendant together with— (i) the _reason for the refusal_; **and** (ii) _if the defendant_ so _requests_, the _grounds in support of that reason_, _unless_ the giving of those grounds would itself _prejudice the interests protected by s16, 17, or 18_ **and** (in the case of the interests protected by section 18) there is _no overriding public interest_. (3) The _standard information_ referred to in subsection (2)(a) is— (a) a copy of _any statement_ made by a _prosecution witness_; **and** (b) a copy of _any brief of evidence_ that has been prepared in relation to _a prosecution witness_; **and** (c) the _name and, if disclosure is authorised under section 17, the address_ of a_ny person interviewed_ by the prosecutor who _gave_ _relevant information_ and whom the _prosecutor_ _does not intend to call as a witness_; **and**— (i) _any written account_ of the _interview_, whether signed or unsigned, **and** any other _record of the interview_; and (ii) _any statement_ made to the _prosecutor_ by the person; **and** (d) _any convictions of a prosecution witness_ that are _known to the prosecutor_ and that may _affect the credibility_ of that witness; and (e) a _list of all exhibits_ that the _prosecutor proposes to have introduced as evidence_ as part of the case for the prosecution; **and** (f) a _list of all relevant exhibits_ in the _possession of the prosecutor_ that the _prosecutor does not propose_ to have _introduced as evidence_; **and** (g) a copy of _any information supplied to the prosecutor_ in connection with the case by _any person_ or persons whom the _prosecutor proposes to call_ to _give evidence as an expert_ _witness_ or witnesses; **and** (h) a copy of a_ny relevant information supplied to the prosecutor_ by a _person_ or persons whom _the prosecutor_ considered _calling to give evidence as an expert witness_ or witnesses, but elected not to do so. (4) The _obligation to disclose information_ to the defendant under this section _as soon as is reasonably practicable_ is subject to any order made under section 30 or 32. (5) If _information_ referred to in subsection (2) _comes into the possession or control of the prosecutor_, or is prepared in recorded form, _after_ the _prosecutor has disclosed_ information in accordance with subsection (1) _and before the hearing or trial is completed_, the _prosecutor must disclose the information_ to the defendant _as soon as is reasonably practicable_. (6) The _entitlement of a defendant to information_ under this section _continues while the criminal proceedings are in progress_ (including any appeal against conviction) and _during the period from the conviction until the expiry_ of the time for l_odging an appeal_ against conviction.

s7 Fundamental principle that relevant evidence admissible

7 Fundamental principle that relevant evidence admissible (1) _All relevant evidence is admissible_ in a proceeding _except_ evidence that is— (a) _inadmissible under this Act or any other Act_; **or** (b) _excluded under this Act or any other Ac_t. (2) _Evidence that is not relevant is not admissible_ in a proceeding. (3) _Evidence is relevant_ in a proceeding _if it has a tendency to prove or disprove_ _anything_ that is _of consequence_ to the _determination_ of the _proceeding_.

8 General exclusion

8 General exclusion (1) In any proceeding, the _Judge must exclude evidence_ if its _probative value is outweighed by the risk_ that the _evidence will_— (a) have an _unfairly prejudicial effect_ on the proceeding; **or** (b) _needlessly prolong the proceeding_. (2) In _determining_ whether the _probative value of evidence_ is _outweighed by the risk_ that the evidence will have an unfairly prejudicial effect on a criminal proceeding, the _Judge must take into account_ the _right_ of the _defendant to offer an effective defence_.

35 Previous consistent statements rule

35 Previous consistent statements rule (1) A _previous statement of a witness_ that is _consistent with the witness's evidence_ is _not admissible_ _unless_ _subsection (2) or subsection (3) applies_ to the statement. (2) A _previous statement of a witness_ that is _consistent with the witness's evidence_ is _admissible_ to the extent that the statement is _necessary to respond to a challenge to the witness's veracity_ or _accuracy_, based on a _previous inconsistent statement_ of the witness or on a _claim of recent invention_ on the part of the witness. (3) A _previous statement of a witness_ that is _consistent_ with the _witness's evidence_ i_s admissible if_— (a) the _circumstances_ relating to the _statement_ provide _reasonable assurance_ that the _statement is reliable_; **and** (b) the _statement provides the court_ with _information_ that the _witness is unable to recall_.

44 Evidence of sexual experience of complainants in sexual cases

44 Evidence of sexual experience of complainants in sexual cases (1) _In a sexual case_, _no evidence can be given_ and _no question can be put_ to a witness _relating directly or indirectly_ to the _sexual experience of the complainant_ with _any person other than the defendant,_ _except_ with the _permission of the Judge_. (2) In a sexual case, _no evidence can be given and no question can be put to a witness_ that relates _directly or indirectly_ to the r_eputation of the complainant_ in _sexual matters_. (3) In an _application for permission_ under subsection (1), the J_udge must not grant permission_ _unless satisfied_ that the _evidence or question_ is of _such direct relevance to facts in issue_ in the proceeding, or the _issue of the appropriate sentence_, that it would be _contrary to the interests of justice to exclude it_. (4) The permission of the Judge is not required to rebut or contradict evidence given under subsection (1). (5) In a _sexual case_ in which the _defendant is charged as a party_ and _cannot be convicted unless it is shown_ that _another person committed a sexual offence_ _against the complainan_t, subsection _(1) does not apply_ to any _evidence given, or any questio_n put, that _relates directly or indirectly_ to the _sexual experience of the complainant_ _with that other person_. (6) This section does not authorise evidence to be given or any question to be put that could not be given or put apart from this section.

s45 Admissibility of visual identification evidence

45 Admissibility of visual identification evidence (1) _If a formal procedure is followed_ by officers of an enforcement agency in _obtaining visual identification evidence_ of a _person alleged to have committed an offence_ or there was _a good reason for not following a formal procedure_, that e_vidence is admissible_ in a criminal proceeding _unless_ the _defendant proves on the balance of probabilities_ that the _evidence is unreliable_. (2) _ If a formal procedure is not followed_ by officers of an enforcement agency in _obtaining visual identification evidence_ of a _person alleged to have committed an offence_ and there was _no good reason for not following a formal procedure_, that _evidence is inadmissible_ in a criminal proceeding _unless_ the _prosecution proves beyond reasonable doubt_ that the circumstances in which the _identification_ was made have _produced a reliable identification_. (3) For the purposes of this section, a _formal procedure_ is _a procedure for obtaining visual identification evidence_— (a) that is _observed as soon as practicable after the alleged offence_ is reported to an officer of an enforcement agency; **and** (b) in which the _person to be identified is compared to no fewer than 7 other persons_ who are _similar in appearance_ to the person to be identified; **and** (c) in which _no indication is given to the person making the identification_ as to _who_ among the persons in the procedure is _the_ _person to be identified_; **and** (d) in which the _person making the identification_ is _informed_ that the _person to be identified_ _may or may not be among_ the persons in the procedure; **and** (e) that is the _subject of a written record of the procedure_ actually followed that is _sworn to be true and complete by the officer who conducted the procedure_ and _provided to the Judge and the defendant_ (but not the jury) at the hearing; **and** (f) that is the _subject of a pictorial record_ of what the witness looked at that is _prepared and certified to be true and complete by the officer who conducted_ the procedure and _provided_ to the _Judge and the defendant_ (but not the jury) at the hearing; **and** (g) that _complies with any further requirements_ provided for in regulations made under section 201. (4) The circumstances referred to in the following paragraphs are _good reasons for not following a formal procedure_: (a) a _refusal of the person to be identified to take part in the procedure_ (that is, by refusing to take part in a parade or other procedure, or to permit a photograph or video record to be taken, where the enforcement agency does not already have a photo or a video record that shows a true likeness of that person): (b) _the singular appearance of the person to be identified_ (being of a nature that cannot be disguised so that the person is similar in appearance to those with whom the person is to be compared): (c) _ a substantial change in the appearance of the person to be identified_ after the alleged offence occurred and before it was practical to hold a formal procedure: (d) _no officer involved in the investigation or the prosecution_ of the alleged offence _could_ _reasonably anticipate that identification would be an issue_ at the trial of the defendant: (e) if an _identification of a person_ alleged to have committed an offence has been _made to an officer_ of an enforcement agency _soon after the offence was reported_ and _in the course of that officer's initial investigation_: (f) if an _identification of a person_ alleged to have committed an offence has been _made to an officer_ of an enforcement agency _after a chance meeting between the person who made the identification_ and _the person alleged_ to have _committed_ the _offence_.

87 Privacy as to witness's precise address

87 Privacy as to witness's precise address (1) In _any proceeding_, the _precise particulars of a witness's address_ (for example, details of the street and number) _may not, without the permission of the Judge_, be— (a) the _subject of any question to a witness_ or _included in any evidence_ given; **or** (b) _included in any statement or remark_ made by a _witness, lawyer, officer of the court_, or _any other person_. (2) The _Judge must not grant permission_ under subsection (1) _unless satisfied_ that the _question_ to be put, the _evidence to be given_, or the _statement or remark to be made_, is of _sufficient direct relevance to the facts in issue_ that _to exclude it_ would be _contrary to the interests of justice_. (3) An _application for permission_ under subsection (1) _may be made before or after_ the commencement of any hearing, and is, where practicable, _to be made and dealt with in chambers_. (4) _Nothing_ in subsection (1) _applies_ in a criminal proceeding _if it is necessary to disclose the particulars_ in the charge _in order_ to ensure that the _defendant_ is _fully and fairly informed of the charge_.

s88 Restriction on disclosure of complainant's occupation in sexual cases

88 Restriction on disclosure of complainant's occupation in sexual cases (1) In a _sexual case_, _except_ with the _permission of the Judge_,— (a) _ no question_ may be put _to the complainant_ or _any other witness_, and _no evidence may be given_, concerning the _complainant's occupation_; **and** (b) _no statement or remark_ may be made in _court by a witness, lawyer, officer of the court, or any other person_ involved in the proceeding concerning the _complainant's occupation._ (2) The _Judge must not grant permission_ under subsection (1) _unless satisfied_ that the _question_ to be put, the _evidence to be given_, or the _statement or remark to be made_, is of _sufficient direct relevance to the facts in issue_ that to _exclude_ it would be _contrary to the interests of justice_. (3) An _application_ for permission under subsection (1) _may be made before or after_ the _commencement_ _of any hearing_, and is, where practicable, to be made and _dealt with in chambers_.

121 Corroboration

121 Corroboration Subpart 6—Corroboration, judicial directions, and judicial warnings (s 121 to s 127) (1) It is _not necessary_ in a criminal proceeding for the _evidence on which the prosecution relies to be corroborated_, _except_ with respect to the _offences_ of— (a) _perjury_ (section 108 of the Crimes Act 1961); **and** (b) _false oaths_ (section 110 of the Crimes Act 1961); **and** (c) f_alse statements or declarations_ (section 111 of the Crimes Act 1961); and (d) treason (section 73 of the Crimes Act 1961). (2) Subject to subsection (1) and section 122, _if_ in a criminal proceeding _there is a jury_, it is _not necessary for the Judge_ to— (a) _warn the jury_ that it is _dangerous_ to _act on uncorroborated evidence_ or to give a warning to the same or similar effect; **or** (b) _give a direction relating to the absence of corroboration_.

15 Entry without warrant to find and avoid loss of evidential material relating to certain offences

15 Entry without warrant to find and avoid loss of evidential material relating to certain offences A _constable_ may _enter and search_ a _place_ _without a warrant_ if he or she has _reasonable grounds_— (a) to _suspect_ that an _offence punishable by imprisonment_ for a term of _14 years or more_ has been _committed_, or is _being committed_, or is _about to be committed_; **and** (b) _ to believe_— (i) that _evidential material_ relating to the offence _is in that place_; **and** (ii) that, _if entry is delayed_ in order _to obtain a search warrant_, the _evidential material_ will be _destroyed_, _concealed_, _altered_, or _damaged_.

16 Searching people in public place without warrant for evidential material relating to certain offences

16 Searching people in public place without warrant for evidential material relating to certain offences A _constable_ may _search a person_ _without a warrant_ in a _public place_ if the _constable_ has _reasonable_ _grounds to believe_ that the _person_ is i_n possession of evidential material_ relating to an _offence punishable by imprisonment_ for a term of _14 years or more_.

17 Warrantless entry and search of vehicle for evidential material relating to certain offences

17 Warrantless entry and search of vehicle for evidential material relating to certain offences A _constable_ may, _without a warrant_, _enter and search a vehicle_ that is i_n a public place_ if he or she has _reasonable grounds to believe_ that _evidential material_ relating to an _offence punishable by imprisonment_ for a term of _14 years or more_ is i_n or on the vehicle_.

45 Restrictions on some trespass surveillance and use of interception device

45 Restrictions on some trespass surveillance and use of interception device (1) _Nothing_ in this subpart _authorises_ any _enforcement office_r to undertake _trespass_ _surveillance_ (other than by means of a tracking device) _except_ in order to _obtain evidential material_ in relation to an _offence_— (a) that is _punishable_ by a term of _imprisonment of 7 years or more_; **or** (b) against _s44, 45, 50, 51, 54, or 55_ of the _Arms Act 1983_ **or** (c) agains_t s25, 26, or 70 of the Psychoactive Substances Act 2013_. (2) _Nothing_ in this subpart _authorises_ any _enforcement officer_ to _use an interception device_ _except_ in order to _obtain evidential material_ in relation to an _offence_— (a) that is _punishable_ by a term of _imprisonment of 7 years or more_; **or** (b) against _s44, 45, 50, 51, 54, or 55 of the Arms Act 198_3 **or** (c) against _s25, 26, or 70 of the Psychoactive Substances Act 2013_.

46 Activities for which surveillance device warrant required

46 Activities for which surveillance device warrant required (1) _Except_ as provided in _s47 & 48,_ an _enforcement_ _officer_ who _wishes to undertake_ any _1 or more of the following activities_ **_must_** _obtain a surveillance device warrant_: (a) _use of an interception device to intercept a private communication_: (b) _use of a tracking device_, _except_ where a tracking _device is installed solely_ for the purpose of _ascertaining_ whether a _thing has been opened, tampered with, or in some other way dealt wit_h, and the _installation_ of the device _does not involve trespass_ to _land_ or _goods_: (c) _observation_ of _private activity in private premises_, **and** _any recording_ of that _observation_, by means of a _visual surveillance device_: (d) _use of a surveillance device_ that _involves_ _trespass to land or goods_: (e) _observation of private activity_ in the _curtilage of private premises_, and _any recording_ of that _observation_, _if any part of the observation or recording_ is _by_ means of a _visual surveillance device_, **and** the _duration of the observation_, for the _purposes of a single investigation, or a connected series_ of investigations, _exceeds_— (i) _ 3 hours in any 24-hour period;_ **or** (ii) _8 hours in total_. (2) This section is subject to section 45.

117 Special powers where application for search warrant pending

117 Special powers where application for search warrant pending (1) If an _application for a search warrant_ is _about_ to _be made_ or _has been made_ and _has not yet been granted or refused_ by an issuing officer, an _enforcement officer_ present _at the place or vehicle_ that is or is to be the _subject of the application_ _may_, _if authorised by subsection_ (2),— (a) _enter and secure_ the _place, vehicle, or other thing_ in respect of which _authorisation_ to enter and search _is being sough_t, and _secure any item or items found_ at that _place_ or in or on _that vehicle_ or _other thing_, _at any time that is reasonable_ in the circumstances: (b) _direct any person to assist_ with the _entry and securing_ of the _place or vehicle_ or _other thing_ or t_he securing of items in it_ (including, without limitation, a member of a hapū or an iwi if the place to be entered is of cultural or spiritual significance to that hapū or iwi). (2) The _powers_ conferred by subsection (1) _may be exercised_ if the enforcement _officer_ has _reasonable grounds to believe_ that _evidential material_ may be _destroyed, concealed, altered, damaged, or removed_ _before_ a decision is taken to _grant or refuse_ the issue of a search _warrant_. (3) The _powers_ conferred by subsection (1) may be _exercised until_ the first of the following occurs: (a) the _expiry of 6 hours_ from when the power is first exercised: (b) the _warrant is available for execution_ at that place or vehicle or in respect of that other thing: (c) the _application_ for a search _warrant is refused_. (4) A _person who exercises any power_ under subsection (1) _must, on the request of any person affected_ by the exercise of the power,— (a) _identify himself or herself_ either by _name_ or by _unique identifier_; **and** (b) state the _name of the enactment_ under which the _search is taking place_ and the _reason for the search_ under that enactment _unless it is impracticable to do so_ in the circumstances; **and** (c) _if not in Police uniform_, produce evidence of his or her _identity_.

123 Seizure of items in plain view

123 Seizure of items in plain view (1) This section _applies to an enforcement officer_ who, _as part of his or her duties_,— (a) _exercises a search_ power; **or** (b) is _lawfully in any place or in or on a vehicle_; or (c) is _conducting a lawful search of a person_. (2) An _enforcement officer_ to whom this section applies _may seize any item or items_ that he or she, or any person assisting him or her, _finds in the course of_ carrying out _the search_ or as a _result of observations_ at the _place_ or in or on the _vehicle_, if the _enforcement officer_ has _reasonable grounds to believe_ that he or she _could have seized_ the item or items under— (a) _any search warrant_ that could have been obtained by him or her _under this Act or any other enactment_; **or** (b) _any other search power_ exercisable by him or her _under this Act or any other enactment_. (3) _If_ an enforcement _officer_ _seizes any item or items_ under subsection (2), in circumstances where he or she is _not already exercising a search power_, the enforcement _officer_ may _exercise any applicable power conferred by section 110_ in relation to the _seizure_ of the _item or items_.

s30 Victim's views about release on bail of accused or offender

s30 _Victim's views about release on bail_ of accused or offender (1) This section _applies_ if— (a) the _victim is the victim of a specified offence_; **and** (b) the _person accused_ of the offence or, as the case requires, the offender, _applies to a court_ for release on _bail_. (2) If this section applies, the _prosecutor must_— (a) _make all reasonable efforts_ to ascertain any _views the victim has about the accused_, or, as the case requires, the offender, _being released on bail_; **and** (b) _inform the court of any views_ ascertained under paragraph (a).]

s31 Police to give victims of specified offences information about right to ask for notice and to appoint representative

s31 Police to give victims of specified offences information about right to ask for notice and to appoint representative (1) This section _applies_ in respect of a _victim of a specified offence_. (2) The _Commissioner of Police must_, as soon as practicable,— (a) _inform the victim_ of the matters required by _subsections (3) to (5)_; **and** (b) _inform a support person_ of the victim of the matters required by _subsection (6)_. (3) The _Commissioner_ of Police _must inform the victim_ that the victim has the _right to ask to be given any notice_ under sections 34 to 38 and that, _if_ he or she _asks to be given such notices_, then the _victim must_ at the same time _give_ to the _NZ Police_ his or her _address_ in accordance with _section 32B(1)(c)(i)_. (4) The _Commissioner_ of Police _must inform the victim_ that _if the victim asks to be given any notice_ under sections 34 to 38 and _gives_ the _NZ Police_ his or her _address_, then the _victim may also be given notice_ under the following provisions: (a) _s39_: (b) _s20 of the Prisoners' and Victims' Claims Act 2005_. (5) The _Commissioner_ of Police _must inform the victim_ that— (a) the _victim may appoint a representative_ under section 40 to request and receive on his or her behalf any notice given under sections 34 to 39; **and** (b) _if the victim appoints a representative_, the victim or his or her representative _must give_ to the _NZ Police_ the _name and address_ of the _representative_ in accordance with section 32B(1)(c)(ii). (6) If the _Commissioner_ of Police _knows, or ought reasonably to know_, that the _victim is not_, or may not be, _capable_ alone of doing any _of the following_, the _Commissioner_ _must inform a support person_ of the victim that a _representative_ of the victim _may be appointed_ under section 42: (a) _asking for, receiving, or understanding a notice_ under any of sections 34 to 39; and (b) _appointing a representative_ under section 40. (7) Subsection (6) does not limit subsections (3) to (5).]

s32 Police to give Secretary information about victims of specified offences

s32 Police to give Secretary information about victims of specified offences As _soon as practicable_ after _determining_ that the _offence_ that _affected_ the _victim_ is a _specified offence_, the _Commissioner_ of Police _must give to the Secretary_ the following information: (a) the _name_ of— (i) the _victim_; **and** (ii) the _victim's representative_ (if any); **and** (b) the _address_ of— (i) the _victim_; or (ii) the _victim's representative_

Section 4 of the Act defines an “expert” as?

Section 4 of the Act defines an “expert” as “a person who has specialised knowledge or skill, based on training, study or experience”

Under Section 4 of the Act, a hearsay statement is defined as?

Under Section 4 of the Act, a hearsay statement is defined as;a) "A statement that – was made by a person other than a witness; and b) is offered in evidence at the proceeding to prove the truth of its contents"Define "Hearsay statement"This is a statement that was made by a person other than a witness, and is offered in evidence in the proceeding to prove the truth of its contents. This definition means that out-of-court statements made by a "witness" are not excluded by the hearsay rule because the maker is available to be cross-examined. Such statements may still be excluded by a different rule. A statement offered for some purpose other than proving the truth of its contents, for example merely to show that the statement was made or uttered, is not a hearsay statement.

In relation to the reliability of hearsay statements, briefly outline the four reasons why hearsay evidence is generally excluded;

***In relation to the reliability of hearsay statements, briefly outline the four reasons why hearsay evidence is generally excluded;*** * *Where the maker of a statement _is not called as a witness, there is no opportunity to cross-examine them regarding its contents_,* *the circumstances in which it was made, and so on.* * *The rule addresses the concern that _juries cannot evaluate evidence properly without being able to see the demeanor of the person_ who made the statement in question* * *There is a danger that _witnesses will make mistakes about the meaning or content of statements made by other people_* * *The reason for the rule’s existence is therefore the danger attributing undeserved weight to evidence that cannot be adequately or properly tested. _There needs to be a ‘reasonable assurance’ of reliability_, which means that the evidence must be reliable enough for the fact-finder to consider it, and draw its own conclusions as to weight.*

Definition of "hostile witness"?

***Definition of "hostile witness";*** * *Exhibits, or appears to exhibit, a lack of veracity when giving evidence unfavourable to the party who called the witness on a matter about which the witness may reasonably be supposed to have knowledge; or* * *Gives evidence that is inconsistent with a statement made by that witness in a manner that exhibits, or appears to exhibit, an intention to be unhelpful to the party who called the witness; or* * *Refuses to answer questions or deliberately withholds evidence.*

Sexual Case - means?

***Sexual*** ***Case*** - means a criminal proceeding in which a person is charged with, or is waiting to be sentenced or otherwise dealt with for an offence against any of the provisions of sections 128 – 142A or section 144A CA 1961, or, any other offence against the person of a sexual nature.

s4 Interpretation

4 Interpretation (1) In this Act, unless the context otherwise requires,— Part 1 Preliminary provisions (s 3 to s 15) General **admission**, in relation to a civil proceeding, means a statement that is— 1. (a) made by a person who is or becomes a party to the proceeding; and 2. (b) adverse to the person's interest in the outcome of the proceeding **child** means a person under the age of 18 years **child complainant**, in relation to any proceeding, means a complainant who is a child when the proceeding commences **common bundle** means a compilation of documents that the parties to a civil proceeding wish to offer in evidence at the hearing of the proceeding, being a compilation that— 1. (a) is prepared in accordance with rules of court or the practice of a court; and 2. (b) is filed in court **communication assistance** means oral or written interpretation of a language, written assistance, technological assistance, and any other assistance that enables or facilitates communication with a person who— 1. (a) does not have sufficient proficiency in the English language to— 1. (i) understand court proceedings conducted in English; or 2. (ii) give evidence in English; or 2. (b) has a communication disability **conviction** means,— 1. (a) in sections 47 to 49, a subsisting conviction entered before or after the commencement of this Act by— 1. (i) a New Zealand court or a court-martial conducted under New Zealand law in New Zealand or elsewhere; or 2. (ii) a court established by, or a court-martial conducted under, the law of Australia, United Kingdom, Canada, or any other foreign country in respect of which an Order in Council has been made under section 140(5); and 2. (b) in sections 139 and 140, a subsisting conviction entered before or after the commencement of this Act by a New Zealand or foreign court or a court-martial conducted under New Zealand or foreign law **copy**, in relation to a document, includes a copy of a copy and a copy that is not an exact copy of the document but is identical to the document in all relevant respects **country** includes a State, territory, province, or other part of a country **court** includes the Supreme Court, the Court of Appeal, the High Court, and any District Court District Court includes— 1. (a) a Family Court; and 2. (b) a Youth Court **document** means— 1. (a) any material, whether or not it is signed or otherwise authenticated, that bears symbols (including words and figures), images, or sounds or from which symbols, images, or sounds can be derived, and includes— 1. (i) a label, marking, or other writing which identifies or describes a thing of which it forms part, or to which it is attached: 2. (ii) a book, map, plan, graph, or drawing: 3. (iii) a photograph, film, or negative; and 2. (b) information electronically recorded or stored, and information derived from that information **domestic violence** has the same meaning as in section 3(1) of the Domestic Violence Act 1995 **enforcement agency** means the New Zealand Police or any body or organisation that has a statutory responsibility for the enforcement of an enactment **expert** means a person who has specialised knowledge or skill based on training, study, or experience **expert evidence** means the evidence of an expert based on the specialised knowledge or skill of that expert and includes evidence given in the form of an opinion **foreign country** means a country other than New Zealand give evidence means to give evidence in a proceeding— 1. (a) in the ordinary way, as described in section 83; or 2. (b) in an alternative way, as provided for by section 105; or 3. (c) in any other way provided for under this Act or any other enactment **harassment** has the same meaning as in section 3 of the Harassment Act 1997 **hearsay rule** means the rule described in section 17 **hearsay statement** means a statement that— 1. (a) was made by a person other than a witness; and 2. (b) is offered in evidence at the proceeding to prove the truth of its contents **hostile, in relation to a witness,** means that the witness— 1. (a) exhibits, or appears to exhibit, a lack of veracity when giving evidence unfavourable to the party who called the witness on a matter about which the witness may reasonably be supposed to have knowledge; or 2. (b) gives evidence that is inconsistent with a statement made by that witness in a manner that exhibits, or appears to exhibit, an intention to be unhelpful to the party who called the witness; or 3. (c) refuses to answer questions or deliberately withholds evidence **incriminate** means to provide information that is reasonably likely to lead to, or increase the likelihood of, the prosecution of a person for a criminal offence **international organisation** means an organisation of States or governments of States or an organ or agency of an organisation of that kind, and includes the Commonwealth Secretariat **interpreter** includes a person who provides communication assistance to a defendant or a witness investigative questioning means questioning in connection with the investigation of an offence or a possible offence by, or in the presence of,— 1. (a) a [constable]; or 2. (b) a person whose functions include the investigation of offences **Judge** includes a Justice of the Peace, a community magistrate, and any tribunal lawyer means a barrister or solicitor, as those terms are defined in section 2 of the Law Practitioners Act 1982 **leading question** means a question that directly or indirectly suggests a particular answer to the question offer evidence includes eliciting evidence by cross-examining a witness called by another party opinion, in relation to a statement offered in evidence, means a statement of opinion that tends to prove or disprove a fact **opinion rule** means the rule described in section 23 party means a party to a proceeding previous consistent statements rule means the rule described in section 35 previous statement means a statement made by a witness at any time other than at the hearing at which the witness is giving evidence proceeding means— 1. (a) a proceeding conducted by a court; and 2. (b) any interlocutory or other application to a court connected with that proceeding **propensity rule** means the rule described in section 40 public document — (a) means a document that— (i) (ii) (iii) forms part of the official records of the legislative, executive, or judicial branch of the Government of New Zealand or of a foreign country or of a person or body holding a public office or exercising a function of a public nature under the law of New Zealand or a foreign country; or forms part of the official records of an international organisation; or is being kept by, or on behalf of, a branch of any government, person, body, or organisation referred to in subparagraph (i) or (ii), for the purpose of carrying out the official functions of that government, person, body, or organisation; but 6 (b) in sections 145 to 147, has the meaning set out in section 145 seal includes a stamp self-incrimination means the provision by a person of information that could reasonably lead to, or increase the likelihood of, the prosecution of that person for a criminal offence **sexual case** means a criminal proceeding in which a person is charged with, or is waiting to be sentenced or otherwise dealt with for,— 1. (a) an offence against any of the provisions of sections 128 to 142A or section 144A of the Crimes Act 1961; or 2. (b) any other offence against the person of a sexual nature **statement** means— 1. (a) a spoken or written assertion by a person of any matter; or 2. (b) non-verbal conduct of a person that is intended by that person as an assertion of any matter **veracity rules** means the rules described in section 37 **video record** means a recording on any medium from which a moving image may be produced by any means; and includes an accompanying sound track **visual identification** evidence means evidence that is— 1. (a) an assertion by a person, based wholly or partly on what that person saw, to the effect that a defendant was present at or near a place where an act constituting direct or circumstantial evidence of the commission of an offence was done at, or about, the time the act was done; or 2. (b) an account (whether oral or in writing) of an assertion of the kind described in paragraph (a) **voice identification** evidence means evidence that is an assertion by a person to the effect that a voice, whether heard first-hand or through mechanical or electronic transmission or recording, is the voice of a defendant or any other person who was connected with an act constituting direct or circumstantial evidence of the commission of an offence **witness** means a person who gives evidence and is able to be cross-examined in a proceeding. (2) A hearing commences for the purposes of this Act when at the substantive hearing of the issues that are the subject of proceedings the party having the right to begin commences to state that party's case or, having waived the right to make an opening address, calls that party's first witness.

s3 Interpretation

3 Interpretation (1) In this Act, unless the context otherwise requires,— **access**, in relation to any computer system, means instruct, communicate with, store data in, receive data from, or otherwise make use of any of the resources of the computer system **access information** includes codes, passwords, and encryption keys, and any related information that enables access to a computer system or any other data storage device **arms** means any firearm, airgun, pistol, restricted weapon, imitation firearm, or explosive (as those terms are defined in section 2 of the Arms Act 1983), or any ammunition **business context**, in relation to the acquisition of any information by a person, means the acquisition of the information in the person's capacity as— (a) a provider of professional services or professional advice in relation to a person who is being investigated, or 1 or more of whose transactions are being investigated, in respect of an offence; or (b) a director, manager, officer, trustee, or employee of an entity that is being investigated, or 1 or more of whose transactions are being investigated, in respect of an offence **category 3 offence** has the same meaning as in section 6 of the Criminal Procedure Act 2011 **category 4 offence** has the same meaning as in section 6 of the Criminal Procedure Act 2011 **chief executive**— (a) means the chief executive (however described) of any department of State, Crown entity, local authority, or other body that employs or engages enforcement officers as part of its functions; and (b) includes the Commissioner **Commissioner** means the Commissioner of Police **computer system**— (a) means— (i) a computer; or (ii) 2 or more interconnected computers; or (iii) any communication links between computers or to remote terminals or another device; or (iv) 2 or more interconnected computers combined with any communication links between computers or to remote terminals or any other device; and (b) includes any part of the items described in paragraph (a) and all related input, output, processing, storage, software, or communication facilities, and stored data **constable** has the same meaning as in section 4 of the Policing Act 2008 **controlled drug** has the same meaning as in section 2(1) of the Misuse of Drugs Act 1975 **Crown entity** has the same meaning as in section 7(1) of the Crown Entities Act 2004 **Customs officer** has the meaning given to it in section 2(1) of the Customs and Excise Act 1996 **District Court Judge** means a Judge appointed under the District Courts Act 1947 **enforcement officer** means— (a) a constable; or (b) any person authorised by an enactment specified in column 2 of the Schedule, or by any other enactment that expressly applies any provision in Part 4, to exercise a power of entry, search, inspection, examination, or seizure **equipment** includes fingerprint powder and any chemical or other substance used for law enforcement purposes **evidential material,** in relation to an offence or a suspected offence, means evidence of the offence, or any other item, tangible or intangible, of relevance to the investigation of the offence **examination order** means an examination order made under section 38 **informant** has the same meaning as in section 6(1) of the Criminal Disclosure Act 2008 **intercept**, in relation to a private communication, includes hear, listen to, record, monitor, acquire, or receive the communication either — (a) while it is taking place; or (b) while it is in transit **interception device**— (a) means any electronic, mechanical, electromagnetic, optical, or electro-optical instrument, apparatus, equipment, or other device that is used or is capable of being used to intercept or record a private communication (including a telecommunication); but (b) does not include a hearing aid or similar device used to correct subnormal hearing of the user to no better than normal hearing **issuing officer** means— (a) a Judge: (b) a person, such as a Justice of the Peace, Community Magistrate, Registrar, or Deputy Registrar, who is for the time being authorised to act as an issuing officer under section 108 **Judge** means a District Court Judge or a Judge of the High Court **law enforcement agency** means any department of State, Crown entity, local authority, or other body that employs or engages enforcement officers as part of its functions **local authority** means a local authority within the meaning of section 5(1) of the Local Government Act 2002 **medical practitioner** means a health practitioner who is, or is deemed to be, registered with the Medical Council of New Zealand continued by section 114(1)(a) of the Health Practitioners Competence Assurance Act 2003 as a practitioner of the profession of medicine **non-business context** means a context other than a business context **non-private premises** means premises, or part of a premises, to which members of the public are frequently permitted to have access, and includes any part of a hospital, bus station, railway station, airport, or shop **nurse** means a health practitioner who is, or is deemed to be, registered with the Nursing Council of New Zealand continued by section 114(1)(a) of the Health Practitioners Competence Assurance Act 2003 as a practitioner of the profession of nursing whose scope of practice permits the performance of general nursing functions **Police** article has the same meaning as in section 4 of the Policing Act 2008 **Police bail** has the same meaning as in Part 2 of the Bail Act 2000 **Police employee** has the same meaning as in section 4 of the Policing Act 2008 **Police uniform** has the same meaning as in section 4 of the Policing Act 2008 **precursor substance** has the same meaning as in section 2(1) of the Misuse of Drugs Act 1975 **private activity** means activity that, in the circumstances, any 1 or more of the participants in it ought reasonably to expect is observed or recorded by no one except the participants **private communication**— (a) means a communication (whether in oral or written form, or in the form of a telecommunication, or otherwise) made under circumstances that may reasonably be taken to indicate that any party to the communication desires it to be confined to the parties to the communication; but (b) does not include a communication of that kind occurring in circumstances in which any party to the communication ought reasonably to expect that the communication may be intercepted by some other person without having the express or implied consent of any party to do so **private premises** means a private dwellinghouse, a marae, and any other premises that are not within the definition of non-private premises **production order** means a production order made under section 74 raw surveillance data— (a) means actual video recordings or actual audio recordings; and (b) includes full transcripts, or substantial parts of transcripts, of audio recordings **remote access search** means a search of a thing such as an Internet data storage facility that does not have a physical address that a person can enter and search **road block** means any form of barrier or obstruction preventing or limiting the passage of vehicles **rub-down** search means a search described in sections 85(2), 86, and 87 **search power,** in relation to any provision in this Act, means— (a) every search warrant issued under this Act or an enactment set out in column 2 of the Schedule to which that provision is applied; and (b) every power, conferred under this Act or an enactment set out in column 2 of the Schedule to which that provision is applied, to enter and search, or enter and inspect or examine (without warrant) any place, vehicle, or other thing, or to search a person **strip search** means a search where the person conducting the search may require the person being searched to undress, or to remove, raise, lower, or open any item or items of clothing so that the genitals, buttocks, or (in the case of a female) breasts are— 10 s 4 (a) uncovered; or (b) covered only by underclothing surveillance device means a device that is any 1 or more of the following kinds of devices: (a) an interception device: (b) a tracking device: (c) a visual surveillance device thing seized does not include anything made or generated by a person exercising a search or surveillance power (for example, photographs, drawings, or audio or video recordings made by or on behalf of that person, or a forensic copy of a computer hard drive) **tracking device**— (a) means a device that may be used to help ascertain, by electronic or other means, either or both of the following: (i) the location of a thing or a person: (ii) whether a thing has been opened, tampered with, or in some other way dealt with; but (b) does not include a vehicle or other means of transport, such as a boat or helicopter **trespass surveillance** means surveillance that involves trespass to land or trespass to goods **unique identifier**, in relation to an enforcement officer, means an identifier, used to identify the officer, that is not his or her name and that— (a) is assigned to him or her by the law enforcement agency that employs or engages him or her for the purposes of its operations; and (b) uniquely identifies him or her in relation to the law enforcement agency **unlawfully at large,** in relation to a person, means that he or she is any 1 or more of the following: (a) a person for whose arrest a warrant (other than a warrant issued under Part 3 of the Summary Proceedings Act 1957) is in force: (b) unlawfully at large within the meaning of the Corrections Act 2004 or the Parole Act 2002: (c) a prison breaker within the meaning of section 119 of the Crimes Act 1961: (d) an escapee from lawful custody within the meaning of section 120 of the Crimes Act 1961: (e) a special patient or restricted patient within the meaning of the Mental Health (Compulsory Assessment and Treatment) Act 1992 who has escaped or failed to return on the expiry or cancellation of a period of leave: (f) a care recipient or special care recipient within the meaning of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 who has escaped or failed to return on the expiry or cancellation of a period of leave: (g) a young person within the meaning of the Children, Young Persons, and Their Families Act 1989 who is subject to an order made under section 311(1) of that Act and who is absconding from the custody of the chief executive (as defined in that Act) vehicle means any conveyance that is capable of being moved under a person's control, whether or not the conveyance is used for the carriage of persons or goods, and includes a motor vehicle, aircraft, train, ship, or bicycle **visual surveillance device**— (a) means any electronic, mechanical, electromagnetic, optical, or electro-optical instrument, apparatus, equipment, or other device that is used or is capable of being used to observe, or to observe and record, a private activity; but (b) does not include spectacles, contact lenses, or a similar device used to correct subnormal vision of the user to no better than normal vision * *visual trespass surveillance** means trespass surveillance involving the use of a visual surveillance device. (2) For the purposes of the definition of computer system, a computer is interconnected with another computer if it can be lawfully used to provide access to that other computer— (a) with or without access information; and (b) whether or not either or both computers are currently turned on; and (c) whether or not access is currently occurring.

Definition of Adult

Definition of Adult ## Footnote A person aged 17 years or older at the time of reporting a sexual assault.

Definition of Sexual Assault

Sexual assault: Sexual assault includes but is not limited to: * _sexual violation_ by _rape_ or _unlawful sexual connection_ * _indecent assault _ * any form of _unwanted or coercive touching_ or _actions of a sexual nature_ or in circumstances of _indecency_ * any _sexual abuse or exploitation_ by way of _coercion, deceit, power of authority or mistaken belief _ * _incest_.

Definition of Victim

Victim: * The person whom a sexual assault has been committed against. * Can also be referred to as the survivor.

KPP 3 – Appropriate Crisis Support

**KPP 3 – Appropriate Crisis Support** Appropriate sexual assault support for ASA victims is provided by * _Specially trained group or agency_ including Iwi and Maori groups providing _specialist sexual assault support or counselling services_ * Where there are no such groups available locally, _trained sexual assault counsellor_. Note: the _role_ of a _specialist sexual assault support_ group or agency or trained sexual assault counsellor is to _maximise the psychological and emotional well-being of the victim_. To this end, they may also be an independent advocate for the victim. **Arranging initial sexual Assault support** 1) _Advise victim ASAP_ after _receiving complaint_ of their _right to a support person_. * let them know _Police will arrange_. * _They can have input_ as to who provides support and when. 2) _Contact your local specialist sexual assault support_ _regardless of victims initial response_ to the offering of support. * Whatever the _victim_ initial response to the ASA is it is very _likely they will need specialist emotional support_ as the investigation progresses. * _encourage the victim to meet the support person alone_. This allows the _support person to inform the victim on what help they can give_. 3) If the _victim declines a support_ person and prefers to have family support them, _inform the victim of the implications_ of their decision * _Support person is experienced_ and they can still have _family present_. * _Family members may also be traumatised_ and require support. * _Family members_ may become _potential_ _witnesses_. * _Parents and intimate partners_ present can _create issues_ of frank and _open disclosures_. NOTE: _If the victim remains unwilling_ to accept Support Person _provide brochure_ with contact details.

KKP 4 Purpose of preliminary interviews

**KKP 4 Purpose of preliminary interviews** At this stage of the investigation process, _a full investigation should be underway_ and _information_ obtained during initial contacts _passed on to an ASA investigator_. In most sexual assault investigations, a _preliminary interview_ (the recognised interview/conversation with a victim) is _necessary_ for investigators _to gain a better understanding of what has occurred_ and to determine: * What _further investigative actions_ are necessary * Whether an _offence may have occurred_, and * Whether the _victim_ wishes to make a _formal complaint_. **Procedures for conducting preliminary interviews** _4 steps_ to preliminary interviews of ASA victims \