Serious Assaults Flashcards
What is the difference between a section 188(1) and 188(2) wounding
The offenders intent
188(1) intent to GBH
188(2) intent to injure
Outcome is the same
Definition of “anyone”
Person. Gender neutral, accepted by judicial notice and proved circumstantially
Definition of “intent”
Two specific type of intent
- intent to commit an offence
- intent to produce a specific result
How to prove an offender intent
Admissions and circumstantial evidence
- actions and words before, during and after the event
- surrounding circumstances
- nature of the act itself
In serious assault cases circumstantial evidence that may assist in proving an offenders intent include…….
- prior threats
- evidence of premeditation
- use of a weapon
- whether any weapon used was opportunistic or purposely brought
- number of blows
- degree of force used
- body parts targeted by offender (eg. head)
- degree of resistance or helplessness of the victim (eg. unconscious)
Definition of “GBH”
Harm that is really serious
Does bodily harm (GBH) include psychiatric injury
Yes…….but does not include mere emotions such as fear, distress, panic or a hysterical or nervous condition
Do the consequences of GBH have to be immediate/instant
No, they may be delayed
Definition of “Wounds”
The breaking of the skin and the flowing of blood, either externally or internally
What is the difference between GBH and wounds/maims/disfigures
GBH - refers to the degree or seriousness of the injury
Wounds/maims/disfigures - refer to the type of injury caused
Definition of “maims”
Mutilating, crippling or disabling a part of the body so as to deprive the use of a limb or one of the senses
Needs to be some degree of permanence
Definition of “disfigures”
Deform or deface, to mar or alter the figure or appearance of a person
Need not be permanent
What is the doctrine of transferred malace
Where the defendant mistakes the identity of the person injured or where harm intended for one person is accidentally inflicted on another he is still criminally responsible
Definition of “injure”
To cause actual bodily harm
Can actual bodily harm include psychiatric injury
Yes…..if medical evidence confirms an identifiable clinical condition
Definition of “reckless”
Conscious and deliberate taking of an unjustified risk
When recklessness is an element in an offence what must be proved
- The defendant consciously and deliberately ran a risk (subjective test)
- The risk was one that was unreasonable to take in the circumstances (objective test - what would a reasonable person have done)
What is the difference between a section 189(1) and 189(2) wounding
The offenders intent
189(1) intent to GBH
189(2) intent to injure
Outcome is the same
What is the difference between a section 188 and 189 assault
The level of injury inflicted
What must be proved for an offence against s191 “two-fold” test
- Defendant intended to facilitate the commission of an imprisonable offence (or one of the intents specified in (a) (b) (c)
- They intended to cause the specified harm or was reckless as to the risk
Definition of “facilitate”
To make possible or to make easy or easier
Definition of “imprisonable offence”
Any offence which is punishable by a term of imprisonment
Definition of “avoid detection”
Prevent himself or another person from being caught in the act
Definition of “facilitate flight”
To escape or to prevent capture
Definition of “stupefies”
Cause an effect on the mind or vervous system of a persoin which really seriously interferes with that persons mental or physical ability to act in any way which might hinder an intented crime
Definition of “renders unconscious”
“cause to be” or “cause to become” unconscious
Definition of “violent means”
The application of force that physically incapacitates a person (eg. tying feet or hands together, inflicting debilitating injury)
Definition of “renders incapable”
Includes a powerlessness of the will as well as a physical incapacity
Definition of “assault”
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 ground that he or she has present ability to effect his or her purpose
Must prove
- 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 threat
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
Bodily harm needs no explanation and grievous means no more and no less than really serious
R v Waters
A breaking of the skin would be commonly regarded as a characteristic of a wound. The breaking of the skin will be normally evidenced by a flow of blood and in its occurrence at the site of a blow or impact the wound will more often than not be external. But there are those cases where the bleeding which evidences the separation of tissues may be internal
R v Rapana and Murray
The word disfigure covers not only permanent damage but also temporary damage
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
Recklessness means the conscious and deliberate taking of an unjustified risk. In NZ it involves proof that the consequence complained of could well happen together with an intention to continue the course of conduct regardless of the risk
R v Tihi
In addition to one of the specific intents outlined in paragraphs (a)(b)(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
R v Wati
There must be proof of the commission or attempted commission of a crime either by the person committing the assault or by the person whose arrest or flight he intents to avoid or facilitate
Liability
Injuring with Intent
Section 189
Crimes Act 1961
189(1)
- Intent to cause GBH
- To anyone
- Injures
- Any person
189(2)
- Intent to injure anyone OR reckless disregard for the safety of others
- Injures
- Any person
Liability
Aggravated Wounding or Injury
Section 191
Crimes Act 1961
191(1)(a)
- Intent to commit/facilitate the commission of any imprisonable offence
- Wounds OR Maims OR Disfigures OR GBH or Stupefies OR renders unconscious OR by any violent means renders incapable of resistance
- Any person
191(1)(b)
- Intent to avoid detection of himself/other person the commission of any imprisonable offence
- Wounds OR Maims OR Disfigures OR GBH or Stupefies OR renders unconscious OR by any violent means renders incapable of resistance
- Any person
191(1)(c)
- Intent to avoid arrest/facilitate flight of himself/another upon the commission or attempted commission of any imprisonable offence
- Wounds OR Maims OR Disfigures OR GBH or Stupefies OR renders unconscious OR by any violent means renders incapable of resistance
- Any person
191(2)
- Intent as above (a) (b) (c)
- Injures
- Any person
Liability
Aggravated Assault
Section 192
Crimes Act 1961
192(1)(a)
- Assaults
- Any other person
- Intent to commit/facilitate the commission of any imprisonable offence
192(1)(b)
- Assaults
- Any other person
- Intent to avoid detection of himself/other person the commission of any imprisonable offence
192(1)(c)
- Assaults
- Any other person
- Intent to avoid arrest/facilitate flight of himself/another upon the commission or attempted commission of any imprisonable offence
192(2)
- Assaults
- Any Constable OR any person acting in aid of constable OR any person in the lawful execution of any process
- Intent to obstruct the person assaulted in the execution of his duty
Liability
Wounding with Intent
Section 188
Crimes Act 1961
188(1)
- Intent to cause GBH
- To anyone
- Wounds OR Maims OR Disfigures OR GBH
- Any person
188(2)
- Intent to injure anyone OR reckless disregard for the safety of others
- Wounds OR Maims OR Disfigures OR GBH
- Any person
