Serious Assaults -Lesson Notes

Question 1

Proving intent in serious cases

Answer 1

Prior threats
Evidence of premeditation
the use of a weapon
the number of blows
the degree of force used
the body parts targeted by the offender

Question 2

Wounds

Answer 2

A wound involves the breaking of the skin and the flowing of blood, either internal or external injury

Question 3

Disfigures

Answer 3

to deform or deface, to mar or alter the figure or appearance of a person - needs not be permanent

Question 4

The doctrine of transferred malice

Answer 4

it is not necessary that the person suffering the harm was the intended victim

Question 5

Injure

Answer 5

to injure means to cause actual bodily harm

Question 6

Facilitate

Answer 6

means to make possible, to make easy or easier

Question 7

Under Section 210A Crimes Act 1961, state the statutory defence for Kidnapping
(s. 209) and Abduction (s 210)?

Answer 7

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 this section because he or she gets possession of the young person. - Crimes Act 1961 s210A

Question 8

What was held in R v Crossan in relation to Section 191 Crimes Act 1961

Answer 8

R v Crossan, Incapable of resistance includes a powerlessness of the will as well as a physical incapacity.

Question 9

For a charge of Discharging a Firearm with intent to do Grievous bodily harm, the ‘firearm’ can include airgun. Explain your answer

Answer 9

Discharging firearm or doing dangerous act with intent

(1) Every one is liable to imprisonment for a term not exceeding 14 years who, with intent to do grievous bodily harm,—
(a) Discharges any firearm, airgun, or other similar weapon at any person; or
(b) Sends or delivers to any person, or puts in any place, any explosive or injurious substance or device; or
(c) Sets fire to any property

Question 10

What was held in R v Skivington

Answer 10

“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

Question 11

What factors elevate the offence of Robbery Section 234 Crimes Act 1961 to Aggravated Section 235 Crimes Act 1961.

Answer 11

(a) At the time of immediately before or after “Caused GBH to any person”
(b) Being together with any other person robs any person
(c) Being armed with any offensive weapon or instrument or anything appearing to be a weapon robs any other person

Question 12

Define Claim of Right.

Answer 12

A claim of right, 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

Question 13

John waits down the road as a look out. Bill runs in and uses violence to steal smokes! Although they have acted jointly in the offending why is it not an aggravated robbery by being together with.

Answer 13

Being together with - There must be proof that, in committing the robbery, the defendant was part of a joint enterprise by two or more person who were physically present at the time of the robbery. In this case they were not physically together at the time of the robbery. They are both guilty of Robbery. R V Joyce [1968] NZLR 1070

Question 14

Can a finger up a jersey pretending to be a gun be defined as an instrument or an item appearing to be a offensive weapon. Explain your answer referring to case law.

Answer 14

A “thing” does not include a part of a person’s body.
In R v Bentham the defendant broke into a house where the victim was asleep in bed and put his hand under his jacket, pushing the material out to give the impression he had a gun. He threatened to shoot the victim, who handed over money as a consequence of the threat. The House of Lords held that the term “any thing” did not include the defendant’s unsevered hand.
This decision is applicable in New Zealand following Williams v R [2011] NZCA 510 where the Court confirmed, applying R v Bentham [2005] 2 All ER 65, that a person who uses his fingers to simulate the possession of a firearm is not armed with any “thing” and does not commit aggravated robbery.

Question 15

What was held in R v Crossan with regard to “taking away and detaining”

Answer 15

Taking away and detaining are “separate and distinct offences. The first consists of taking [the victim] away; the second of detaining her.

Question 16

Define Consent as set out in R v Cox.

Answer 16

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

Question 17

List the three intents defined under Kidnapping Section, 209 (a),(b)and (c) of the Crimes Act 1961.

Answer 17

(a) With intent to hold for him or her for ransom or to service or
(b) With intent to cause him or her to be confined or imprisoned or
(c) With intent to cause him or her to be sent or taken out of New Zealand

Question 18

For a conviction under s210 (1) of the Crimes Act 1961 the Crown must prove what.

Answer 18

The defendant took, enticed or detained a person under the age of 16 years;

(a) The taking, enticement or detention was deliberate or intentional;
(b) The taking, enticement or detention was from a person who had lawful care of the young person;
(c) The defendant knew the other person had lawful care of the young person;
(d) The taking, enticement or detention was “unlawful”; and
(e) 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

Question 19

Can a young person consent to being taken away for the purpose of Section 209 -210 Crimes Act 1961. Explain your answer.

Answer 19

They cannot consent to being taken away. Section 210(3) Crimes Act 1961
For a 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.

Question 20

A person “intends to do an action (or to bring about some consequence) if he

Answer 20

Wants to do that action (or to bring about that consequence); or
2. Believes it is possible for him to achieve something he wants by doing that action (or by bringing about that consequence); and
3. Behaves as he does because of his desire or his belief.”
(Simester & Brookbanks: Principles of Criminal Law)

Question 21

Circumstantial evidence from which an offender’s intent may be inferred can include:

Answer 21

• the offender’s actions and words before, during and after the event
• the surrounding circumstances
• the nature of the act itself.

Question 22

In serious assault cases, additional circumstantial evidence that may assist in proving an offender’s intent may include:

Answer 22

• 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 23

R v Taisalika (intent in serious violence offences)

Answer 23

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.

Question 24

Grievous bodily harm

Answer 24

DPP v Smith [1961] AC 290

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

Question 25

Disfigurement

Answer 25

To “disfigure” means “to deform or deface; to mar or alter the figure or appearance of a person”.
R v Rapana and Murray (1988) 3 CRNZ 256
The word ‘disfigure’ covers “not only permanent damage but also temporary damage”.

Question 26

The Doctrine of Transferred Malice

Answer 26

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

Question 27

Injury definition and Case Law

Answer 27

To injure means to cause actual bodily harm.

R v Donovan [1934] 2 KB 498 (CA)
‘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

Question 28

Actual bodily harm can include psychiatric injury what does it not include

Answer 28

mere emotions such as fear, distress or panic would not suffice, expert evidence should be called identifying a recognised psychiatric illness.

Question 29

Recklessness

Answer 29

Acting “recklessly” involves consciously and deliberately taking an unjustifiable risk.
R v Harney [1987] 2 NZLR 576 (CA)
“[Recklessness involves] foresight of dangerous consequences that could well happen, together with an intention to continue the course of conduct regardless of the risk.”

Question 30

What are the aggravating features of S 191

Answer 30

• 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 31

In 191, the prosecution must satisfy a “two-fold” test for intent- what is this

Answer 31

1. 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
2. He or she intended to cause the specified harm, or was reckless as to that risk.

Question 32

The additional intent case law in 191

Answer 32

R v Tihi (1989) 4 CRNZ 289 (CA)
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”.

Question 33

To facilitate means:

Answer 33

to make possible, or to make easy or easier

Question 34

Facilitate Flight case law

Answer 34

R v Wati [1985] NZLR 236, (1984) 1 CRNZ 380 (CA)
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 intends to avoid or facilitate.

Question 35

Act, Section, penalty, legislation of aggravated assault

Answer 35

Section 192, Crimes Act 1961
Aggravated Assault
(1) Every one is liable to imprisonment for a term not exceeding 3 years who assaults any other person with intent-
(a)To commit or facilitate the commission of any imprisonable offence; or
(b)To avoid the detection of himself or of any other person in the commission of any imprisonable offence; or
(c)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.
(2) Every one is liable to imprisonment for a term not exceeding 3 years who assaults any constable or any person acting in aid of any constable, or any person in the lawful execution of any process, with intent to obstruct the person so assaulted in the execution of his duty..

Question 36

What is the difference between the 188(1) and 188(2)

Answer 36

the distinction between the two subsections is the offender’s intent