Questions Part 1 (page 5 - 40) serious assaults

Question 1

To establish the appropriate serious assault charge what are the two things we generally focus on establishing?

Answer 1

• Offenders intent

- Degree of harm suffered by the victim

Question 2

Define Person

Answer 2

Gender neutral, proved by judicial notice or circumstantial evidence

Question 3

Is it necessary that the person suffering the harm is the intended victim?

Answer 3

No

Question 4

Define intent

Answer 4

Intent to commit the act and intent to get a specific result

Question 5

Circumstantial evidence from which an offenders intent can be inferred can include:

Answer 5

• offenders actions and words before, during and after the event
• surrounding circumstances
• nature of the act itself

Question 6

In serious assault cases, additional circumstantial evidence that may assist in providing an offenders intent may include:

pick 4

Answer 6

• prior threats
• evidence of premeditation
• the use of a weapon
• whether any weapon used was opportunistic or purposely brought
• the number of blows
• the degree of force used
• the body parts targeted by the offender (eg the head)
• the degree of resistance or helplessness of the victim (eg unconscious).

Question 7

*Wounding, maiming or disfiguration need not be grievous, if:

Answer 7

In causing that harm the defendant had the intent to cause really serious harm

Question 8

*Does there need to be violence to cause GBH?

Answer 8

No

Question 9

Define GBH

Answer 9

Harm that is really serious

Question 10

What does a wound involve and what case law outlines this?

Answer 10

R v Waters – involves the breaking of the skin and the flowing of blood, either externally or internally.

Question 11

What is the difference between wounding and grievous bodily harm?

Answer 11

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

Question 12

In practical terms, what does maiming involve?

Answer 12

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.

Question 13

*What does disfigure mean?

Answer 13

To deform or deface – an external injury that detracts from the personal appearance of the victim, however does not need to be permanent.

Question 14

*Does a disfigurement need to be permanent?

Answer 14

No

Question 15

*Explain the Doctrine of transferred malice

Answer 15

It is not necessary that the person suffering the harm was the intended victim.

Question 16

*Define ‘injure’

Answer 16

S2 CA 1961 – To cause actual bodily harm

Question 17

*Can actual bodily harm include psychiatric injury?

Answer 17

Yes

Question 18

*What does acting “recklessly” mean?

Answer 18

Consciously and deliberately taking an unjustifiable risk

Question 19

*What is required to prove that the defendant acted “recklessly”?

Answer 19

The defendant was aware of the risk and proceeded regardless (subjective test) AND
It was unreasonable for him to do so (objective test)

Question 20

*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?

Answer 20

No

Question 21

*What is the difference between 189(1) and 189(2)?

Answer 21

In 1) the offender intends to cause GBH but injures

In 2) the offender intents to injure OR acts with reckless disregard, and injures

Question 22

*Both 1) and 2) of 191 require proof of one of the specified intents. What are they?

Answer 22

• 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

Question 23

*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?

Answer 23

“aggravated assault” under s192

Question 24

*What is the two fold test for intent for s191?

Answer 24

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

Question 25

*What does ‘facilitate’ mean?

Answer 25

To make possible, or make easy or easier

Question 26

*What does ‘stupefy’ mean?

Answer 26

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

Question 27

*In ‘renders unconscious’ what does ‘render’ mean

Answer 27

To “cause to be” or “cause to become” – the offenders actions must cause the victim to lose consciousness

Question 28

*Can ‘violent means’ include threats of violence?

Answer 28

Yes

Question 29

*What are the three elements of Assault?

Answer 29

• 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

Question 30

*For 192 (2), you need to prove assault AND:

Answer 30

The offender intended, at the time of the assault, to obstruct the constable, person coming to their aid, or anyone executing a lawful process

Question 31

*What are the three means rea of s198?

Answer 31

• Intent to do GBH
• Intent to injure
• Reckless disregard for the safety of others

Question 32

*What are the three actus reus of s198?

Answer 32

• Discharging a firearm at a person
• Delivering explosives
• Setting fire to property

Question 33

*What is the difference between 1) and 2) in 198 CA 1961?

Answer 33

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.

Question 34

*What is the difference between a firearm and an airgun?

Answer 34

S2 Arms Act: firearm acts by force of explosive, airgun acts by force of compressed air or gas

Question 35

*In 198 1)b) when is the offence complete?

Answer 35

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.

Question 36

*Does 198 1) a) require the actual discharge of a firearm?

Answer 36

Yes

Question 37

*Define property

Answer 37

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.

Question 38

*Define constable

Answer 38

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

Question 39

*Simister and Brookbanks

Answer 39

Knowing or correctly believing

Question 40

*In 198B, does using the firearm as a club count?

Answer 40

No, as it is not accompanied by the phrase “in any manner whatever” and may have a narrower meaning

Question 41

*What does ‘prima facie’ mean?

Answer 41

At first appearance

Question 42

1. 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?

Answer 42

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.

Question 43

2. 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?

Answer 43

−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.

Question 44

4. Section 198(1) Crimes Act 1961, Discharging a firearm with intent to do grievous bodily harm, sets out three offences. Summarise those offences.

Answer 44

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

Question 45

The doctrine of transferred malice

Answer 45

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

Question 46

In serious assault cases, additional circumstantial evidence that may assist in proving an offenders intent can include

Answer 46

prior threats
use of a weapon
body parts targeted
number of blows

Question 47

Explosive

Answer 47

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

Question 48

Injurious substance or device

Answer 48

capable of causing harm to a person e.g. letter containing anthrax poweder

Question 49

What are the three mens rea of 198?

Answer 49

Intent to do gbh
intent to injure
reckless disregard for the safety of others

Question 50

What are the the three actus reus of 198?

Answer 50

discharge firearm at person

delivering explosives

setting fire to property

Question 51

what is the subjective / objective test for recklessness

Answer 51

The defendant was aware of the risk and proceeded regardless (subjective)

it was unreasonable (objective)