Serious Assaults Flashcards

Question

What is the section and elements for smuggling migrants (2)?

Answer 1

Section 98C(2) – 20 years - A person - Arranges for an unauthorised migrant to be brought to NZ or any other state (a) Does so for material benefit; AND (b) Either knows that the person is, or is reckless as to whether the person is, an unauthorised migrant; AND (c) Either (i) Knows that the person intends to try to enter the state (ii) Is reckless as to whether the person intends to try and enter the state

Answer 2

Section 98D(1)(a) – 20 years - A person - Arranges, organises, or procures (a) The entry of a person into, or the exit of a person out of, NZ or any other state (i) For the purpose of exploiting or facilitating the exploitation of the person; OR (ii) Knowing that the entry or exit of the person involves 1 or more acts of coercion against the person, 1 or more acts of deception of the person, or both

Answer 3

Section 98D(1)(b) – 20 years - A person - Arranges, organises, or procures (b) The reception, recruitment, transport, transfer, concealment, or harbouring of a person in NZ or any other state (i) For the purpose of exploiting or facilitating the exploitation of the person; OR (ii) Knowing that the reception, recruitment, transport, transfer, concealment, or harbouring of the person involves 1 or more acts of coercion against the person, 1 or more acts of deception of the person, or both

Answer 4

Generally accepted by judicial notes or proved by circumstantial evidence

Answer 5

When proving intent there must be an intent ot commit the act and an intent to get a specific result Intent is the act or omission must be deliberate and more than accidental or involuntary

Answer 6

DDP v SMITH - harm that is really serious

Answer 7

Must be a an identifiable clinical condition, bodily harm may include psychiatric injury but does not include mere emotions such as fear or panic or distress S188 bodily har, includes really serious psychiatric injury identified as such by appropriate specialist evidence

Answer 8

R v waters - break of skin flow of blood - it can be internal or external

Answer 9

Disabling, crippling, mutilating a part of the body so as to deprive the victim of a limb or one of their senses. There needs to be some degree of permanence

Answer 10

Deform/alter the figure or appearance of the victim - it need not be permanent

Answer 11

It is not necessary that the person suffering the harm was the intended victim, when identity is mistaken or when harm intended for one person accidentally inflicted on another, he is still criminally responsible despite the wrong target being struck

Answer 12

To cause actual bodily harm - need not be permanent and can include psychiatric injury

Answer 13

Consciously and deliberately taking an unjustified risk When the element of an offence the following must be proved: - the defendant consciously and deliberately ran a risk - that the risk was unreasonable to take in the circumstances as they were known to the defendant

Answer 14

To make things worse or more serious

Answer 15

To make possible or to make easier

Answer 16

Offence punishable by imprisonment

Answer 17

To induce a state of stupor, to make stupid, groggy or insensible, to skull the sense or faculties To cause an effect on the mind or nervous system of a person which interferes with that persons mental or physical ability to act in a way that might hinder an intended crime

Answer 18

Render - To cause or cause to become The offenders actins must cause the victim to loose consciousness

Answer 19

Includes the application of force that physically incapacitates a person

Answer 20

The act of intentionally applying by force or attempting to apply by 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 that person making the threat causes the other to believe on reasonable grounds that he has present the ability to effect his purpose

Answer 21

To fire or shoot

Answer 22

Anything from which any shot, bullet, missile, or other projectile can be discharged by force of explosive. It includes anything capable of doing so by adaptation, completion, replacement of parts or repair of defects. Any dismantled firearm, any specially dangerous air gun

Answer 23

Includes any air gun and air pistol and any weapon from which by the use of gas or compressed air (not by explosive) any shot, bullet, missile or other projectile can be discharged

Answer 24

Means or substance or mixture or combination of substance which in its normal state is capable of either decomposition at such a rapid rate as to result in an explosion or of producing pyrotechnic effect

Answer 25

Includes 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.

Answer 26

It is sufficient if the defendant has handled or manipulated the firearm so as to convey an implied threat of its further use against the police officer. It is not necessary that the firearm was presented at the officer or that it was discharged. Can also include to contemplate a situation short of actually firing the weapon and would include presenting it, and also includes the use of firearms in ways in which they are not normally used, such as where a firearm is used as a club.

Answer 27

Holds the office of constable and includes a constable who holds any level of position within the New Zealand Police.

Answer 28

(Simester and Brookbanks) Knowing means ‘knowing or correctly believing’. The defendant may believe something wrongly but cannot ‘know’ something that is false.

Answer 29

There must be evidence that the defendant not only had possession, but also that it was at the time available and at hand for him or her to use while committing the imprisonable offence.

Answer 30

Means firearm other than pistol that is a semi-automatic firearm having 1 or more of the following features - a folding or telescope butt/stock - a magazine designed to hold .22 rimfire cartridges of holding more than 15 cartridges - a magazine that is capable of holding more than 7 cartridges - bayonet lugs - a flash suppressor

Answer 31

Covers a range of things capable of causing harm to a person eg anthrax powder

Answer 32

Any firearm designed or adapted to be held and fired with one hand and includes any firearm that is less than 762mm in length

Answer 33

Any weapon, whether firearm or not, declared by the governor general, ny order in council made under section 4 of this act, to be a restricted weapon

Answer 34

- anti-tank projectors and ammunition - Grenade dischargers, grenade launchers and grenades containing explosives - incendiary grenades consisting of a container whose contents is an inflammable liquid or mixture and a means of ignition of the inflammable substance or mixture eg wick, fuse. Chemical - machine carbines or guns, sub machine carbines or guns and machine pistols including those operated by gas or compressed air and including all other firearms capable of full automatic fire - mines or explosives in nature - mortars of military kinds and ammunition - rocket launchers and ammunition - every firearm, weapon and device designed to discharge any lachrymatory, deleterious, or toxic gas, smoke, or other stupefying or overpowering thing capable of rendering any person either wholly or partially incapable of resistance - any gas, substance, material, or thing specifically intended or adapted for use in conjunction with any firearm, weapon, or device specified in clause 8 of this schedule

Answer 35

Any air gun declared by the governor general, by order in council made under section 4 of this act, to be a specially dangerous air gun

Answer 36

Means pre charged pneumatic air rifle not used in paint ball or air soft

Answer 37

Dishonestly, without claim of right, takes, any property. With the intent to permanently deprive the owner of that property

Answer 38

An ac done or omitted without a belief there was expressed or implied consent to, or authority for, the act or omission from a person entitled to give such consent or authority

Answer 39

An honest belief to the possessory or proprietary 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 other matter of law other than the enactment against which the offence is alleged to have been committed

Answer 40

For tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved.

Answer 41

Requires that the defendant acted contrary to any authority or consent given by the owner, or that their conduct in relation to the property was inconsistent with the rights of the owner.

Answer 42

R v cox - possession must6 have both an act us and MENS rea, the act us being the actual or potential physical custody or control and the men’s rea being a combination of knowledge and intention, the knowledge/sense of awareness having in his possession and intention to exercise possession.

Answer 43

To control is to exercise authoritative or dominating influence or it

Answer 44

A person is regarded to be the owner of any property that is stolen if, at the time of the theft, that person has (A) possession or control of the p-roperty or (B) any inters in the property or (C) the right to take possession or control of the property

Answer 45

The prosecution must prove a connection between the violence or threats and the stealing of the property - it must be shown that the defendant not only had an intent to steal at the time of the violence or the threats were used, but that the violence or threats were used, for the purpose of extorting the property, or preventing or overcoming resistance.

Answer 46

In the context of robber, violence must involve more than a minimal degree of force and more than a technical assault, but need not involve the infliction of bodily harm

Answer 47

To obtain by violence, coercion, or intimidation or to extract forcibly, extortion implies an overbearing of the wil of the victim

Answer 48

To keep from happening

Answer 49

To defeat, prevail over, get the better of in a conflict.

Answer 50

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. Each must share an intent to steal using their collective force and each must play some active role in the robbery

Answer 51

Means that the defendant is carrying the item or has it available for immediate use as a weapon

Answer 52

Means any article made or altered for use for causing bodily injury, or intended by the person having it with him for such use

Answer 53

Means any anaesthetic or other substance produced for use for disabling persons or intended by any person having it with him or her for such use

Answer 54

An allegation that the person is guilty of criminal offending whether or not any formal charges have been filed. It is immaterial whether the substance of the accusation is true or false, and the accusation does not need to relate to the person from who the demand is made

Answer 55

Does not need to relate to criminal offending and will extend to revelation of information which would cause serious embarrassment or emotional distress. The disclosure does not need to relate to the person from who the demand is made.

Answer 56

To obtain or retain for himself, herself or any other person.

Answer 57

Does not require a financial element, but includes a privilege, service or benefit that has no ascertainable monetary value.

Answer 58

An economic advantage or a finanacial gain or benefit, an enhancement of a person’s financial position.

Answer 59

Consent is a person’s conscious and voluntary agreement to something desired or proposed by another.

Answer 60

A special right or advantage and need not be a financial one.

Answer 61

Money or money’s worth.

Answer 62

To execute a document is normally to ‘do what the law requires to give validity to the document. It is not confined to the signing or doing something to the face of the document’. Entry of data in a computer program may amount to ‘execution’ of a document.

Answer 63

An item which provides evidence or information or serves as a record.

Answer 64

A clear request, made firmly.

Answer 65

It will be sufficient if the words or conduct convey a threat of something detrimental or unpleasant happening to the person to whom the threat is made.

Answer 66

Without lawful justification or excuse.

Answer 67

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

Answer 68

Detaining is an active concept rather than a passive one. It involves doing something to impose a constraint or restraint on the person detained. (R v Pryce) Detaining is an active concept meaning ‘to keep in confinement or custody’. This is to be contrasted to the passive concept of ‘harbouring’ or mere failure to hand over.

Answer 69

Consent is a person’s conscious and voluntary agreement to something desired or proposed by another.

Answer 70

Deceive the victim into agreeing to a proposition by misrepresenting the facts or their intentions.

Answer 71

Deceive the victim into agreeing to a proposition by misrepresenting the facts or their intention

Answer 72

Consenting due to fear of the consequences if they refuse

Answer 73

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

Answer 74

Restricting their movements within a geographical area/exercising control and influence over them

Answer 75

Means to put them in a prison or to confine them as if they were in prison

Answer 76

A person under the ages of 16

Answer 77

Receiving physical custody of a young person, several people could jointly receive a young person for the purposes of a liability

Answer 78

To tempt, persuade or attract by arousing hope or desire

Answer 79

The offender must know the young person they are receiving is abducted - correctly believe

Answer 80

A young person under the age of 16 cannot consent to being taken away or detained

Answer 81

For the purposes of subsections(1) and (2) it is immaterial whether the offender believes the young person to be of or over the age of 16

Answer 82

There is no presumption of law that a person is incapable of sexual connection because of his/her age

Answer 83

A person who claims good faith to the possession of a young person under the age of 16 years cannot be convicted of an offence against 209/210

Answer 84

The nature of the blow and the gash produced point strongly to the necessary intent

Answer 85

Disfigurement not only covers permanent damage but also temporary

Answer 86

Grievous is no more or less than really serious harm

Answer 87

Break of skin flow of blood - may be internal

Answer 88

“Bodily harm includes hurt or injury calculated to interfere with the health and comfort of the victim. It need not be permanent but it must be more than transitory or trifling.”

Answer 89

Recklessness is established if the defendant recognised there was a real possibility that: - their actions would bring about a proscribed result and/or: - the proscribed circumstances existed and Having regard to that risk those actions were unreasonable

Answer 90

To stupefy is to cause an effect on the mind or nervous system which really interferes with that persons mental or physical ability to act in anyway which might hinder any crime

Answer 91

S188 is not limited to immediate harmful consequences of the offenders actions eg HIV

Answer 92

A persons actions and words at the time of/before/after and the surrounding circumstances show intent

Answer 93

2 fold test: - Intended to facilitate COAIO - intended to cause specified harm/reckless

Answer 94

There must be proof of the commission or attempted commission of a crime by the person committing the assault or the person whose flight/arrest they intended to facilitate

Answer 95

A reckless discharge of a firearm int the general direction of a passerby who happens to be hit is not sufficient proof - an intention to shoot that person must be established

Answer 96

Deliberately or purposely pulling a sawn off shotgun out of a bag when confronted or called upon by police amounts to a use of that firearm

Answer 97

Crown must prove the accused knew someone was attempting to arrest or detain them because otherwise the element of MENS rea of intending to resist lawful arrest or detention cannot be established

Answer 98

An honest belief to claim of right is a defence to robbery

Answer 99

Robbery is complete the instant the property is taken, even I’d the possession is only momentary

Answer 100

Giving back the property does not negate the offence

Answer 101

Possession has 2 parts, firstly the physical element involves actual or potential custody or control The knowledge of having that thing in their possession and the intention to exercise possession

Answer 102

There must be a close nexus between the act of stealing and the threats of violence - both must be present

Answer 103

Violence - it is sufficient the actions of the defendant forcibly interfere with the personal freedom or amount to forcible, powerful or violent action or motion causing bodily injury or discomfort

Answer 104

The actual presence or absence of fear on the part of the complainant is not the yardstick. It is the conduct of the accused which has to be assessed rather than the strength or nerves of the person threatened

Answer 105

A persons fingers or hand is not a thing

Answer 106

Must establish at least 2 people were present at the time of the robbery being committed or the assault occurred

Answer 107

Together with is 2 or more persons having the common intention to use their combined force

Answer 108

Taking away and detaining are separate and distinct offences

Answer 109

Taking away is depriving someone of their liberty taking them from a place they want to be

Answer 110

Detaining someone is an active concept to keep in confinement or custody which is to be contrasted to the passive concept or harbouring or mere failure to hand over

Answer 111

The offence is complete once there has been a period of taking away or detention with the necessary intent - regardless of whether the intent was carried out

Answer 112

The intent can be formed at any time during the taking away

Answer 113

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

Answer 114

Crown must prove that the accused intended to take away or detain and they knew they complainant did not consent

Answer 115

The best evidence possible but be given in the circumstances should be adduced by the prosecution in proof of age

Answer 116

R v tihi - the defendant intended to facilitate COAIO and - they intended to cause the specified harm/reckless as to that risk

Answer 117

The injury sustained (1) is wounds/maims/disfigures/causes gbh/stupefies/renders unconscious/by violent means renders incapable of resistance (2) is injury

Answer 118

When an explosive or injurious substance or device is sent, delivered, or put in place - the substance must have the capacity to explode or cause injury

Answer 119

Every person in occupation of any land or building or the driver of any vehicle on which any firearm, airgun, pistol, imitation firearm, restricted weapon, or explosive is found shall, thought not to the exclusion of the liability of any other person, be deemed to be in possession of that firearm etc. unless he proves that it was not his property and that it was in the possession of some other person. - reverse onus

Answer 120

The thief must desire that the owner will never regain the property, but it is not necessary that he intends to keep it himself; an intent to destroy the property or to give it to someone else who will retain it will suffice.

Answer 121

- prior threats - evidence or premeditation - the use of a weapon - whether any weapon used was opportunistic or purposefully bought - the number of blows - the degree of force used - the body parts targeted by the offender - the degree of resistance/helplessness of the victim.

Answer 122

Mere presence during the commission of the robbery, without active participation, is not sufficient; the provision applies only to cases where the forces or two or more people acting together are deployed against the victim in the actual commission of the offence.

Answer 123

Includes any item intended to be used as a weapon or to intimidate and overbear the victim’s will to resist.

Answer 124

You must prove the identity of the suspect and that they threatened, expressly or by implication, to: - make any accusation against any person (whether alive or dead) - disclose something about any person (wether alive or dead) - cause serious damage to property - a danger the safety of any person And that the suspect intended to: - cause the person whom the threats is made to act in accordance with the will of the person making the threat and - obtain any benefit or to cause loss to any other person

Answer 125

Section 237(2) provides a defence to the charge of blackmail If the defendant is able to show they believed they were entitled to obtain the benefit or to cause loss and objectively viewed, the making of the threat was a reasonable and proper means for obtaining the benefit or causing the loss Therefore, belief by the person making the threat that they are entitled to the benefit or to cause loss is not in itself a defence to a charge under 237(1) unless the threat is in the circumstances a reasonable and proper means for effecting his purpose

Answer 126

- the defendant took away or detained a person - the taking away or detaining was intentional The taking away or detaining was unlawful - the taking away or detaining was without that persons consent (or obtained by fraud or duress) - the defendant knew there was no consent to the taking or detention - the defendant intended to: Go through a form of marriage, or civil union, have sexual connection. Cause to go through a form of marriage or cool union or have sexual connection with any other person

Answer 127

Migrant smuggling involves a person who has freely consented to be brought into NZ as an illegal immigrant and is not subjected to coercion or deception People trafficking involves a person who is brought into NZ by means of coercion and or deception. People are often trafficked in order to exploit them in the destination country

Answer 128

- consent - the purpose of the travel or movement - the relationship between the person moved and the people enabling the movement - violence, intimidation, coercion - liberty - profit

Answer 129

- reactive investigation Usually victim led and often initiated by an approach to police by the victim or another person acting on their behalf - proactive investigation Police led, a combination of standard investigation techniques supplemented by intelligence resources to identify and locate the traffickers, gather evidence and instigate proceedings against them - disruptive investigation Appropriate circumstances where the level of risk to the vicitm demands an immediate response and proactive or reactive approaches are not applicable options

Answer 130

Intent or reckless disregard for the safety of others

Answer 131

- Commit or facilitate the commission of any imprisonable offence - Avoid the detection of himself or of any other person in the commission of any imprisonable offence - Avoid the arrrest or facilitate the flight of himself or of any other person in the commission or attempted commission of any imprisonable offence

Answer 132

It was held that a mere threat may not in itself be sufficient to constitute ‘violent means’, but when the person making the threat is brandishing a loaded revolver in circumstances that cause the victim to submit to his will in the belief that he will carry out his threat unless she does so, it can be said that she was rendered incapable of resistance by violent means just as effectually as if she were physically incapable.

Answer 133

- With intent to do GBH, a person discharges any firearm, airgun or other similar weapon at any person - With intent to do GBH, a person sends, delivers or puts in place an explosive or other injurious substance or device - With intent to do GBH, sets fire to any property

Answer 134

S235(a)-(c) outlines robbery with aggravating features: S235(a) - Robs any person - At the time of, or immediately before or immediately after, the robbery, causes GBH S235(b) - Being together with any other person or persons - Robs - Any person S235(c) - Being armed with any offensive weapon or instrument, or any thing appearing to be such a weapon or instrument - Robs Any person

Answer 135

For the aggravated robbery offence of ‘being together with’, the two persons must be part of a joint enterprise who are physically present at the robbery. They both must share an intent to steal using their collective force and play an active role in the robbery. R v Joyce – two or more persons must be physically present. R v Galey – two or more persons must have the common intention to use their combined force directly in the perpetration of the crime. It is not aggravated robbery because John waits down the road and is not physically present when Bill uses violence to steal the cigarettes. They have not used their collective force and John has not played an active role in the robbery.

Answer 136

No. In R v Bentham it was held that ‘what is possessed must under the definition be a thing. A person’s hand or fingers are not a thing’.

Answer 137

- Hold him or her for ransom or to service - Cause him or her to be confined or imprisoned - Cause him or her to be sent or taken out of NZ

Answer 138

The defendant took, enticed or detained a person under the age of 16 - the taking, enticement, detention was intentional - the taking, enticement or detention was from a. Person who had lawful care of the young person - The defendant knew the other person had lawful care of the young person - The taking, enticement or detention was unlawful and - It was done with intent to deprive a parent, guardian, or other person having lawful care or charge of the young person of possession of that young person

Answer 139

No. Under s209A a person under 16 years (young person) cannot consent to being taken away or detained. Under s210(3), for the purposes of subsection (1) and (2) it is immaterial whether the offender believes the young person consents, or is taken or goes or is received at his or her own suggestion.

Answer 140

20 years’ imprisonment or a fine not exceeding $500,000 or both.

Answer 141

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

Answer 142

- The accused received a person under the age of 16 years AND - The receiving was deliberate or intentional AND - The accused knew that the young person had been unlawfully taken, enticed away or detained by another, from a person who had lawful possession of the young person AND - The accused intended by reason of the receiving to deprive the person with lawful care of possession of that young person

Answer 143

Taisalika argued unsuccessfully that he had been intoxicated so he could not remember the incident therefore he could not have had the necessary intent. The court held that memory loss of past events is not the same as lack of intent at the time

Answer 144

1. To cause the person who the threat is made to act in accordance with the will of the person making the threat 2. To obtain any benefit or cause loss to the other person

Answer 145

To make any accusation against any person To disclose something about any person To cause serious damage to property To endanger the safety of any person

Answer 146

- 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 forced used - The body parts targeted by the offender - The degree of resistance or helplessness of the victim

Answer 147

1. The defendant intended to facilitate the commission of an imprisonable offence 2. He or she intended to cause the specified harm, or was reckless as to that risk

Answer 148

- Intention to apply or attempt to apply force - Application or attempted application of force, whether directly or indirectly, or - Threat to apply force in circumstances where the victim believes the offender will be able to carry out the offence

Answer 149

- Intent to do grievous bodily harm - Intent to injure - Reckless disregard for the safety of others

Answer 150

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

Answer 151

- A belief in a proprietary or possessory right in property. - The belief must be about rights to the property in relation to which the offence is alleged to have been committed. - The belief must be held at the time of the conduct alleged to constitute the offence. - The belief must be actually held by the defendant but does not have to be reasonable and may be based on ignorance or mistake.

Answer 152

- The relative ages of the parties - Their respective physiques - Their appearance - Their demeanour - What was said and done by those involved - The manner and setting in which the incident took place.