Short Answer Questions

Question 1

What is the difference between Sec.188(1) & (2)?

Answer 1

The distinction between the two subsections is the offender’s INTENT.

They both relate to actions that result in wounding, maiming, disfiguring or GBH to the victim.

In subsection (1) the offender intends to cause GBH.
In subsection (2) the offender intends only to injure, although the actual outcome is a greater degree of harm than anticipated; or acts in a way that he foresees is likely to result in injury, but proceeds regardless of the risk and causes serious harm to the victim (reckless disregard for the safety of others).

Question 2

Explain the term to “disfigure”.

Answer 2

To deform or deface; to mar or alter the appearance of the person, however it does not need to be permanent.

Question 3

Explain the Doctrine of Transferred Malice.

Answer 3

It is not necessary that the person suffering the harm was the intended victim. 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, despite the wrong target being struck.

Question 4

Can actual bodily harm include psychiatric injury?

Answer 4

Yes. If medical evidence confirms an identifiable clinical condition.

Question 5

Explain Recklessness

Answer 5

A person is reckless if:

(a) knowing that there is a risk that an event may result from his conduct or that a circumstance may exist, he takes that risk; and
(b) it is unreasonable for him to take it having regard to the degree & nature of the risk which he knows to be present

Question 6

In brief, what does acting recklessly involve?

Answer 6

Acting recklessly involves consciously & deliberately taking an unjustifiable risk.

Question 7

Explain the two-fold test for intent in relation to Sec.191.

Answer 7

1. The defendant intended to facilitate the commission of an imprisonable offence (or one of the other intents specified in paragraphs (a), (b) or (c), and
2. He or she intended to cause the specified harm, or was reckless as to that risk. (R v Tihi)

Question 8

Explain the term intentionally.

Answer 8

A person does something intentionally if they mean to do it; they desire a specific result & act with the aim or purpose of achieving it.

Question 9

In serious assault cases, what circumstantial evidence may assist in proving an offender’s intent?

Answer 9

• 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.
• Degree of resistance or helplessness of the victim (e.g. unconscious).

Question 10

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

Answer 10

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

Question 11

What is the difference between Sec.189(1) & (2)?

Answer 11

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

They both relate to actions that result in injury to the victim.

In subsection (1) the offender intends to cause GBH, however the outcome is a lesser degree of harm than he intended.
In subsection (2) the offender intends only to injure the victim, or acts with reckless disregard for the safety of others, & in doing so injures the victim.

Question 12

Explain the term stupefy.

Answer 12

Stupefy means to cause an effect on the mind or nervous system of a person, which seriously interferes with that person’s mental or physical ability to act in any way which might hinder an intended crime. (R v Sturm)

Question 13

Explain constructive possession.

Answer 13

Constructive possession arises when something is not in a person’s physical custody, but they have ready access to it or can exercise control over it.
(Sullivan v Earl of Caithness)

Question 14

With regards to serious assaults, explain Secondary Intent.

Answer 14

An undesired but foreseen consequence that the defendant believes will happen as a result of his actions.

Question 15

What was held by COA in R v Mwai?

Answer 15

Sec.188 is not limited to the immediate harmful consequences of the offender’s actions, such as an external assault. All that is required for the actus reus is an act causing GBH. The consequences may be delayed.

Question 16

Explain migrant smuggling.

Answer 16

Migrant smuggling involves a person who has freely consented to be brought into NZ as an illegal immigrant.

Question 17

Explain people trafficking.

Answer 17

People trafficking involves a person who is brought into NZ by means of coercion &/or deception.

Question 18

(Abduction of a young person under 16 years)

For a conviction under Sec.210(1) what must be proved?

Answer 18

1. The defendant took, enticed, detained a person u/16;
2. The taking, enticement, detention was intentional;
3. The taking, enticement, detention was from a person who had lawful care of the YP;
4. The defendant knew the other person had lawful care.
5. The taking, enticement, detention was unlawful; &
6. It was done with intent to deprive a parent, guardian or other person having lawful care or charge of the YP, of possession of that YP.

Question 19

(Abduction of a young person under 16 years)

For a conviction under Sec.210(2) what must be proved?

Answer 19

1. The defendant received a person u/16;
2. The receiving was intentional;
3. The defendant knew the YP had been unlawfully taken, enticed away, detained by another, from a person who had lawful possession of the YP;
4. The defendant intended by receiving, to deprive a parent, guardian or other person having lawful care or charge of the YP, of possession of that YP.

Question 20

In relation to abduction & kidnapping, explain duress.

Answer 20

Duress may arise from actual or implied threat of force to the victim or another person; can include other forms of pressure or coercion.

Question 21

In relation to abduction & kidnapping, explain fraud.

Answer 21

Deceiving the victim by misrepresenting the facts.

Question 22

Abduction Sec.208

What must be proved?

Answer 22

1. The defendant took away or detained the victim;
2. The taking or detention was intentional;
3. The taking or detention was unlawful;
4. The taking or detention was without that person’s consent, or with consent obtained by fraud or duress;
5. The defendant knew there was no consent to the taking or detention;
6. The defendant intended to:
   (a) Marry the person; or
   (b) Have sex.conn with the person; or
   (c) Cause the person to be married or have sex.conn with some other person.

Question 23

Kidnapping Sec.209

What must be proved.

Answer 23

1. The defendant took away or detained the victim;
2. The taking or detention was intentional;
3. The taking or detention was unlawful;
4. The taking or detention was without that person’s consent, or with consent obtained by fraud or duress;
5. The defendant knew there was no consent to the taking or detention;
6. The defendant intended to:
   (a) Hold the person for ransom or service ; or
   (b) Cause the person to be confined or imprisoned; or
   (c) Cause the person to be sent or taken out of NZ.

Question 24

What is the statutory defence to a charge of blackmail under Sec.237(2) C.A 61?

Answer 24

A belief by the person making the threat they are entitled to the benefit or to cause the loss is not a defence unless the making of the threat, in the circumstances, is reasonable & proper means for effecting his or her purpose.

Question 25

In R v BROUGHTON (threat of violence) which circumstances of this case were considered?

Answer 25

• the relative age of the parties
• their respective physiques
• their appearance
• their demeanour
• what was said & done by those involved
• the manner & setting in which the incident took place

Question 26

Is a person who uses his fingers to simulate the possession of a firearm committing an aggravated robbery? Explain your answer.

Answer 26

A: No. A finger simulating possession of a firearm is not a “thing” and therefore they do not commit aggravated robbery. A “thing” does not include a part of a person’s body. (R v Bentham)

Question 27

Explain actual possession (Warner v Met.Pol.Comm.)

Answer 27

Actual Possession arises where the thing in question is in a person’s physical custody; it is on their person, or immediately at hand.