Questions Part 1 (page 5 - 40) serious assaults Flashcards
To establish the appropriate serious assault charge what are the two things we generally focus on establishing?
- Offenders intent
- Degree of harm suffered by the victim
Define Person
Gender neutral, proved by judicial notice or circumstantial evidence
Is it necessary that the person suffering the harm is the intended victim?
No
Define intent
Intent to commit the act and intent to get a specific result
Circumstantial evidence from which an offenders intent can be inferred can include:
- offenders actions and words before, during and after the event
- surrounding circumstances
- nature of the act itself
In serious assault cases, additional circumstantial evidence that may assist in providing an offenders intent may include:
pick 4
- prior threats
- evidence of premeditation
- the use of a weapon
- whether any weapon used was opportunistic or purposely brought
- the number of blows
- the degree of force used
- the body parts targeted by the offender (eg the head)
- the degree of resistance or helplessness of the victim (eg unconscious).
*Wounding, maiming or disfiguration need not be grievous, if:
In causing that harm the defendant had the intent to cause really serious harm
*Does there need to be violence to cause GBH?
No
Define GBH
Harm that is really serious
What does a wound involve and what case law outlines this?
R v Waters – involves the breaking of the skin and the flowing of blood, either externally or internally.
What is the difference between wounding and grievous bodily harm?
The terms “wounds” “maims” “disfigures” refers to the type of injury caused, whereas the term “grievous” refers to the degree or seriousness of the injury
In practical terms, what does maiming involve?
Mutilating, crippling or disabling a part of the body so as to deprive the victim of the use of a limb of or one of the senses. It is suggested that there needs to be some degree of permanence.
Maiming is an archaic term that has limited applications today, as the loss of a limb or one of the senses would generally be considered really serious, and therefore classed as GBH.
*What does disfigure mean?
To deform or deface – an external injury that detracts from the personal appearance of the victim, however does not need to be permanent.
*Does a disfigurement need to be permanent?
No
*Explain the Doctrine of transferred malice
It is not necessary that the person suffering the harm was the intended victim.
*Define ‘injure’
S2 CA 1961 – To cause actual bodily harm
*Can actual bodily harm include psychiatric injury?
Yes
*What does acting “recklessly” mean?
Consciously and deliberately taking an unjustifiable risk
*What is required to prove that the defendant acted “recklessly”?
The defendant was aware of the risk and proceeded regardless (subjective test) AND
It was unreasonable for him to do so (objective test)
*In ‘reckless disregard for the safety of others’ it is necessary to prove that the defendant foresaw the risk of injury to others. Is it necessary that he recognised the extent of injury that would result?
No
*What is the difference between 189(1) and 189(2)?
In 1) the offender intends to cause GBH but injures
In 2) the offender intents to injure OR acts with reckless disregard, and injures
*Both 1) and 2) of 191 require proof of one of the specified intents. What are they?
- Intent to commit or facilitate the commission of any imprisonable offence
- intent to avoid the detection of himself or any other person in the commission of any imprisonable offence
- intent to avoid the arrest or facilitate the flight of himself or of any other person upon the commission or attempted commission of any imprisonable offence
*Where the offender assaults a person with one of the specified intents, but the victim suffers no actual bodily harm, what is the appropriate charge?
“aggravated assault” under s192
*What is the two fold test for intent for s191?
1) The defendant intended to facilitate the commission of an imprisonable offence (or one of the intents specified in a) b) c) AND
2) He or she intended to cause the specified harm, or was reckless as to that risk
*What does ‘facilitate’ mean?
To make possible, or make easy or easier
*What does ‘stupefy’ mean?
To cause an effect on the mind or nervous system of the person, which seriously interferes with that persons mental or physical ability to act in any way which may hinder an intended crime
*In ‘renders unconscious’ what does ‘render’ mean
To “cause to be” or “cause to become” – the offenders actions must cause the victim to lose consciousness
*Can ‘violent means’ include threats of violence?
Yes
*What are the three elements of Assault?
- The intention to apply or attempt to apply force
- Application or attempted application of force, whether directly or indirectly
- Threat to apply force in circumstances where the victim believes the offender will be able to carry out the threat
*For 192 (2), you need to prove assault AND:
The offender intended, at the time of the assault, to obstruct the constable, person coming to their aid, or anyone executing a lawful process
*What are the three means rea of s198?
- Intent to do GBH
- Intent to injure
- Reckless disregard for the safety of others
*What are the three actus reus of s198?
- Discharging a firearm at a person
- Delivering explosives
- Setting fire to property
*What is the difference between 1) and 2) in 198 CA 1961?
Subsections 1) and 2) both relate to the same range of actus reus. The distinction is the intent.
In 1) the offender intends to cause GBH.
In 2) he intends only to injure the victim, or acts with reckless disregard for the safety of others.
*What is the difference between a firearm and an airgun?
S2 Arms Act: firearm acts by force of explosive, airgun acts by force of compressed air or gas
*In 198 1)b) when is the offence complete?
When an explosive or an injurious substance or device is sent, delivered or put in place. However, the substance must have the capacity to explode or cause injury.
*Does 198 1) a) require the actual discharge of a firearm?
Yes
*Define property
S2 CA 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.
*Define constable
S4 policing act 2008
A police employee who-
a) Holds the office of constable
b) Includes a constable who holds any level of position within the NZ Police
*Simister and Brookbanks
Knowing or correctly believing
*In 198B, does using the firearm as a club count?
No, as it is not accompanied by the phrase “in any manner whatever” and may have a narrower meaning
*What does ‘prima facie’ mean?
At first appearance
- Wounding with intent is an offence under s188 of the Crimes Act 1961. Subsections (1) and (2) both relate to actions that result in wounding, maiming, disfiguring or grievous bodily harm to the victim. What is the difference between the two sections?
Whilst both sections of Wounding with intent pursuant of s188 of the Crimes Act 1961 relate to actions that result in wounding, maiming, disfiguring or grievous bodily harm to the victim the difference is the offender’s intent.
- In the context of s191 of the Crimes Act 1961, the offender causes harm to the victim in the process of committing an imprisonable offence. This harm is caused for one of three intents. Name the three intents?
−intent to commit or facilitate the commission of any imprisonable offence
− intent to avoid the detection of himself or of any other person in the commission of any imprisonable offence
− intent to avoid the arrest or facilitate the flight of himself or of any other person upon the commission or attempted commission of any imprisonable offence.
- Section 198(1) Crimes Act 1961, Discharging a firearm with intent to do grievous bodily harm, sets out three offences. Summarise those offences.
Discharging firearm or doing dangerous act with intent
Every one is liable to imprisonment for a term not exceeding 14 years who, with intent to do grievous bodily harm,—
Discharges any firearm, airgun, or other similar weapon at any person; or
Sends or delivers to any person, or puts in any place, any explosive or injurious substance or device; or
Sets fire to any property
The doctrine of transferred malice
It is not necessary that the person suffering the harm was the intended victim
If the defendant has the mens rea of a particular crime, carries out the actus reus of the same crime, he is guilty even if the result is unintended
if the defendant has a different mens rea from the offence he commits, the intent cannot be transferred
In serious assault cases, additional circumstantial evidence that may assist in proving an offenders intent can include
prior threats
use of a weapon
body parts targeted
number of blows
Explosive
s2 arms act 1983
any substance or mixture or combination of substances
which in its normal state is capable of resulting in an explosion or pyrotechnic effect
includes - gun powder, gelignite
does not include - firearms , fire works
Injurious substance or device
capable of causing harm to a person e.g. letter containing anthrax poweder
What are the three mens rea of 198?
Intent to do gbh
intent to injure
reckless disregard for the safety of others
What are the the three actus reus of 198?
discharge firearm at person
delivering explosives
setting fire to property
what is the subjective / objective test for recklessness
The defendant was aware of the risk and proceeded regardless (subjective)
it was unreasonable (objective)
