Socrative Flashcards
When does the offence of Conspiracy exist under S310 of the CA1961 & when is the offence complete
The offence exists when there is an agreement between 2 or more people to do an unlawful act or a lawful act by unlawful means. The offence is complete upon the agreement being made with the required intent.
Re attempts, what is the “Test for Proximity” as outlined by Simester & Brookbanks
commenced execution, taken a step in the actual crime itself.
Hayden tries to steal Acton’s yellow plaid shirt by reaching into Actons gym bag in the locker room at work, believing this is where Acton keeps his stepping out threads for after class. It turns out the bag contains only shirts of more subdued hues of blues & greens which Hayden isnt interested in so he takes nothing and skulks back to his desk to do some more study. Is Hayden guilty of attempting to steal the yellow shirt.
Case Law
A No because it was factually impossible, given that the shirt wasn’t in the bag.
B Yes you can still be guilty of an attempt when it is factually impossible to complete the full offence (R v Ring)
C No, Clearly Hayden never had the intent to steal Actons shirt as Hayden is way to fly to ever want to wear a Yellow shirt
R v Ring
B Yes you can still be guilty of an attempt when it is factually impossible to complete the full offence (R v Ring)
Conan finally loses his cool at Laura for her constant elder abuse, and throws a solid state laptop at her noggin to teach her a lesson. The laptop kills Laura instantly and Conan never has a chance to tell her how much he really appreciates her. Conan has murdered Laura. He grieves the loss of the shattered laptop which is only a stupid i-thing anyway, then buries Laura in the Waitaks; having as he does little respect for the natural beauty of West Auckland given that he was born and raised a Shore Boy. His sleeveless puffer jacket is covered in dark wet soil and blood, he turns up at Kristis place where the lamps are burning long into the night as she chants liabilities aloud like a mad woman. Conan knocks on the door and asks Kirsti if she needs some help studying; he would be happy to talk to her at length about onion browsers or some such is she would do him a favour and chuck his grubby sleeveless puffer jacket in the wash for him. Kirsti obliges as she is much kinder than Laura when it comes to elder care.
Kirsti is guilty of being an Accessory after the fact to Laura’s murder T or F
False
At the time of the assistance being given, an accessory must possess the knowledge that;
an offence has been committed,
and
the person they are assisting was a party (principal or secondary) to that offence.
What held in the case of R v Betts and Ridley with regards to the type of of Party liability contemplated by s66(2) CA1961
An offence where no violence is contemplated and the principal offender in carrying out the common aim uses violence, a secondary offender taking no physical part in it would not be held liable for the violence used.
A male is wanting to burgle a commercial premises. He has visited the premises several times during opening hours to check out the alarm systems and entry points. Has the male committed the offence of attempt.
A Not committed an attempt because his actions amount to mere preparation.
B Committed an attempt because his intention is to commit a burglary and he has carried out an act to further that offence.
C Committed an attempt to commit burglary as his actions by visiting the address go beyond mere preparation and constitute an attempt
A Not committed an attempt because his actions amount to mere preparation.
In relation to being a party to an offence S66, CA1961 Offenders can also be charged as parties to any other offence (offence B) that any one of them commits in order to assist in the commission of the offence originally agreed to (offence A) R v Betts & Ridley provided an exception to this rule. What was held in this case?
A To be in a room and witness a Rape is not sufficient to render a person liable
B An offence where no violence is contemplated and the principal offender in carrying out the common aim uses violence, a secondary offender taking no physical part in it would not be held liable for the violence used.
C A person guilty as a party if he is present at the scene of a crime and does nothing to prevent the actions of the other in any subsequent offences.
B An offence where no violence is contemplated and the principal offender in carrying out the common aim uses violence, a secondary offender taking no physical part in it would not be held liable for the violence used.
The conspiratorial agreement requires the operation of both physical and mental faculties. What is the requisite actus reus for a charge of conspiracy.
A That the conspirators made some form of progression towards the completion of the offence however trivial. The acts or omissions need not be sufficiently proximate to the full offence
B That the conspirators carry out an act or omission relating to the illegal conduct on which the agreement is based.
C That there was an agreement by two or more people to carry out the illegal conduct
C That there was an agreement by two or more people to carry out the illegal conduct
When dealing with a case of attempt, S72(1) CA1961, the judge and jury have specific roles. Outline the functions of the Judge and Jury in these cases?
Function of the Judge
The judge must decide whether the accused had left the preparation stage and was already trying to effect completion of the full offence. The accused need not have taken all the steps necessary towards completing the full offence. If the Judge decides that the defendants actions were more than mere preparation the case goes to jury.
Function of the Jury
The Jury must decide whether the facts presented by the Crown have been proved beyond reasonable doubt and if so decide whether the defendants acts are close enough to the full offence.
If the Jury finds the actus reus has been established, it must also find the same in respect of the mens rea - that is the prosecutions evidence must also convince the jury beyond reasonable doubt that the defendant intended to commit the full offence.
Mens Rea goes to what was the offender thinking at the time the offence was committed. T or F
True
Explain your understanding of Actus Reus
Actus Reus is the offenders criminal conduct. Their actions, conduct and behaviour that constitute a persons criminal liability along with the requisite Mens Rea (intent)
generally who has to prove Actus Reus and Mens Rea
A Judge
B Defence
C Prosecution
D All of the Above
C Prosecution
Aside from actually committing the offence the five remaining actions for a person to become liable for the offence of parties under S66(1) are; Aids Abets Encourages Counsels Procures T or F
False Aids Abets Incites Counsels Procures
What was held in R v Crooks in relation to KNOWLEDGE (accessory after the fact)
Knowledge means actual knowledge or belief in the sense of having no real doubt that the person assisted was a party to the relevant offence. Mere suspicion of their involvement in the offence is insufficient.
What is the case law in respect of when robbery is complete
A R v Lapier
B R v Maihi
C R v Taisalika
D R v Joyce
A R v Lapier
If the court is satisfied that a defendant acted with claim of right, he or she is entitled to an acquittal on a charge of theft. Acting with claim of right is therefore a defence to a charge of robbery.
Case Law
T or F
T
Yes, because theft is an ingredient of robbery, if theft cannot be proven, robbery cannot be proven.
R v Skivington
What does extortion mean with respect to a charge of robbery.
A To Obtain by coercion or intimidation
B To prevent resistance to the property being stolen
C To prevail over in a time of conflict
D To receive something when a request for it has been made
A To Obtain by coercion or intimidation
For a charge of Aggravated Robbery under S235(b) there must be proof that in committing the robbery the defendant was part of a joint enterprise by 2 or more people who were physically present at the robbery.
T or F
True
Mere presence during the commission of a robbery without active participation is not sufficient. the provision applies only to cases where the forces of 2 or more persons acting together are deployed against the victim in the actual commission of the offence.
The term being armed refers to the defendant carrying the item or has it available for immediate use as a weapon
T or F
True
Under R v Joyce it is sufficient for the crown to show that the presence by 2 or more people in the vicinity will satisfy the element “being together with”
T or F
False
The crown must establish that at least 2 persons were “Physically present” at the time the robbery was committed or assault occurred.
GBH can be defined as,
A Harm that is quite serious B Harm that is relatively serious C Harm that is moderately serious D Harm that is really serious Case Law
D Harm that is really serious
DPP v Smith - Bodily harm needs no explanation and grievous means no more and no less than really serious.
A threat made with the necessary intent may have a continuing effect that is still operating on the victims mind sometime later when the goods are eventually handed over.
Case Law
T or F
True
in R v Maihi it is implicit in accompany that there must eb a nexus (connection/link) between the act of stealing and a threat of violence. Both must be present, however the term does not require that the act of stealing and the threat of violence be contemporaneous.
R v Cox says there are 2 elements required to be satisfied in order to prove possession, they are
A Actual and potential
B Physical and Mental
C Taking and depriving the owner permanently
B Physical and Mental
Possession involves 2 elements. Physical and Mental
Under R v Galey mere presence during the commission of a robbery without active participation is not sufficient. It involves 2 or more persons having a common intention to use their combined force directly in the perpetration of the crime.
T or F
True
R v Peat outlines that there is a defence to the offence of Robbery if the robber immediately returns the goods to the rightful owner.
T or F
False
R v Peat as in the case of theft, the immediate return of goods by the robber does not purge the offence, subject always to the necessary intent existing at the time of taking.
Intent can be proved by
A The offenders actions and words before during and after the event
B the surrounding circumstances
C The nature of the act itself
D All of the above
D All of the above
The physical element refers to actual potential physical custody or control.
Case Law
T or F
True
R v Cox
Offensive Weapon includes any article made or altered to cause bodily injury.
T or F
True
Def under S202A(1) CA1961
In the context of robbery the courts have said that violence must involve the infliction of bodily injury.
T or F
False
Violence must involve more than a minimal degree of force and more than a technical assault, but need NOT involve the infliction of bodily injury.
Under S235(a) CA1961 Agg Rob causing GBH must happen,
A At the time of the robbery
B Immediately before the robbery
C Immediately after the Robbery
D All of the above
D All of the above
Under robbery there does not have to be an intent to deprive permanently.
T or F
False
An intent to deprive permanently is an element of theft, therefore as robbery includes theft this element needs to be satisfied.
Outline your understanding of the physical and mental element in relation to possession in R v Cox.
Actual Physical or Potential custody or control
Mental = a combination of Knowledge & intention
knowledge in the sense of an awareness by the accused that the substance is in his possession and an intention to exercise possession.
what is the definition of claim of right.
In relation to any act, means a belief at the time of the act in a proprietary or pocessory 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 act or any matter of law other than the enactment against which the offence is alleged to have been committed.
what is the definition of property
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
What is the 4 step appreciation process
A Aim Factors Courses Open Preparation
B Aim Factors Options Open Plan
C Aim Factors Courses Open Plan
Aim Factors Courses Open Plan
Once an appreciation is made best practice is to outline the plan in the GSMEAC format
T or F
True
What does VOWES stand for
Victims Offenders Witnesses Exhibits Scene
Aaron hates his neighbour and decides to burn his house down just because he can. He knows there is no one in the house when he burns it down. What section would you charge him under?
A Section 267(1)(b) Crimes Act 1961.
B Section 267(2)(a) Crime Act 1961
C Section 267(1)(a) Crimes Act 1961
D Section 267(3) Crimes Act 1961
A Section 267(1)(b) Crimes Act 1961.
Intentionally
and without claim of right
damaging by fire, immovable property
in which the offender has no interest.
Police have been called to the scene of a fire where it is believed an explosive has been used.
What action should you take in the first instance?
A
Clear the scene in the event that there could be a secondary device present
B
Clear the scene but remain nearby and communicate with the Fire Service by cell phone or radio.
C
a. Remain at the scene to direct the activities of rescuers and Fire Service staff.
D
All of the above
A
Clear the scene in the event that there could be a secondary device present
Property will be considered “immovable” if it is currently fixed in place, unable to be moved, even though it may be possible to make it movable. T or F
True
What is the main difference between 267(1)(b) and 267(2)(a)?
A
One is committed intentionally and one is committed recklessly
B
There is no claim of right defence with 267(2)(a)
C
Immovable property, vehicle, ship or aircraft vs property in which that person has no interest outside of property listed in (1)(b)
D
damages by fire vs damages by explosive
C
Immovable property, vehicle, ship or aircraft vs property in which that person has no interest outside of property listed in (1)(b)
John throws a petrol bomb at a car he has no interest in. The petrol bomb explodes. He should be charged with Intentionally damages by means of any explosive…..
T or F
False
A petrol bomb is a crude incendiary device. The appropriate charge is ‘damages by fire’ NOT ‘by means of explosive’.
Aaron is a loser who comes from a down-beat family and has no hope for betterment. One day he decides to set fire to the local pub that he frequents, just to see what would happen. Aaron is aware that there is an accommodation block on top of the pub where rooms are rented to undesirables and homeless. Aaron sets a fire at the rear of the building with his lighter; he then sits in the bushes outside and watches as all the tenants run out. What section would you charge him under?
A Section 267(3) Crimes Act 61
B Section 267(1)(a) Crimes Act 61
C Section 267(2)(a) Crimes Act 61
D Section 267(1)(c) Crimes Act 61
B Section 267(1)(a) Crimes Act 61
Joshua is annoyed the local hardware store won’t sell him spray paint for his tagging ventures. He wants to get his own back on the guy by setting fire to the store. He has been back on several occasions, to check out the alarm system, CCTV cameras, hours of operation etc. What offence, if any has Joshua committed?
A
Committed an attempt because his intention is to commit arson and he has carried out acts in furtherance of that offence.
B
Not committed an attempt because his actions amount to mere preparation.
C
Committed an attempt to commit arson as his actions by visiting the store repeatedly go beyond mere preparation and constitute an attempt.
B
Not committed an attempt because his actions amount to mere preparation.
In a criminal law context, there are two specific types of intention with respect to an offence. There must be an intention to 1. commit the act and 2. to get a specific result. T or F
True
Three examples of circumstantial evidence from which an offender’s intent may be inferred are
1) The offenders actions and words before, during and after the event
2) The surrounding circumstances
3) What a reasonable person in similar circumstances
T or F
False
Explanation:
1) The offenders actions and words before, during and after the event
2) The surrounding circumstances
3) The nature of the act itself
S267(1)(c) Crimes Act 1961 includes incidents of arson where the intent is to cause loss to any person.
In R v Morley the Court of Appeal reviewed the nature of “loss”. What was the finding?
Loss is assessed by the extent to which the complainants position prior to the offence has been diminished or impaired.
In relation to Recklessness what was held in Cameron V R?
Recklessness is established if:
(a) The defendant recognised that there was a real possibility that:
(i) His or her actions would bring about the prescribed result; and / or
(ii) That the prescribed circumstances existed; and
(b) Having regard to that risk those actions were unreasonable
At the scene of a suspicious fire it may be necessary to demolish specific areas for safety reasons.
In cases such as this what must the Investigator record prior to the demolition and how must this be done?
Photos in situ, sketches
Jack and Hannah are study buddies. They are a bit sick of the information overload given to them by their course facilitators and as such need a place to escape the bombardment of study. Their ‘safe place’ is an abandoned unit down the road from Jack’s house.
After class they go to their safe place for some time out. It is a bit cold so Jack brings some wood and lighter fuel to build a fire in the hearth. Hannah brings an aerosal can containing glue so they can get high and forget their problems. Jack gets the fire going and they start to sniff the glue. Jack and Hannah become fascinated with the fire. As a dare Hannah throws the glue aerosol can into the flames which rapidly heats up and explodes, spreading burning embers across the room. One of the embers ignites some discarded newspaper. In their panic, Jack and Hannah both run from the house.
The house sustains substantial damage and has to be demolished.
What offence has been committed and list the elements?
Arson Section 267(1)(b) CA 1961
Recklessly Without claim of right Damages by Fire Any immovable property In which that person has no interest
Under R V Archer “Damages by Fire” refers to “property may be damaged if it suffers permanent or temporary physical harm or permanent or temporary impairment of its use or value”
T or F
True
What is the definition of Explosive?
Any substance or mixture or combination of substances which in its normal state is capable either of decomposition at such rapid rate as to result in an explosion or of producing a pyrotechnic effect.
Includes: gun powder, gelignite, detonators
Does Not Include: Firearms, fireworks
A Molotov Cocktail is an explosive?
A
Yes. It is a petrol bomb and therefore fits the definition of explosive.
B
No. It is nothing more than a crude incendiary device.
C
No. It is similar to a firework.
B
No. It is nothing more than a crude incendiary device.
What is the definition of Fire?
Fire is the process of combustion, a chemical reaction between fuel and oxygen, triggered by heat. For a fire to start all three must be present.
The elements of 267(1)(b) are:
Intentionally or Recklessly
Damages by fire or by means of any explosive
Any property
If he or she knows or ought to know that a danger to life is likely to ensue.
T or F
False
Intentionally or Recklessly
Without COR
Damages by fire or by means of any explosive
Any immovable property, vehicle, ship or aircraft
in which that person has no interest
As long as there is the necessary intent at the time of the taking away, the offence of abduction is complete. The Crown need not show that the intent was subsequently carried out.
Case Law
T or F
True
R v Mohi is the case law with respect to this. As long as the offender detains the victim with one of the specified intents, they are deemed criminally liable.
As long as there is the necessary intent at the time of the taking away, the offence of abduction is complete. The Crown need not show that the intent was subsequently carried out.
Case Law
T or F
True
R v Mohi is the case law with respect to this. As long as the offender detains the victim with one of the specified intents, they are deemed criminally liable.
For the offence of kidnapping, a person needs to be both ‘taken away’ from a place they want to be and subsequently ‘detained’.
T or F
False
Which of the following is not one of the possible intents necessary for the offence of abduction under Section 208, CA 1961.
A
To go through a form of marriage or civil union.
B
To cause him or her to be confined or imprisoned.
C
To have sexual connection with the person.
D
To cause the person to go through a form of marriage or civil union, or to have a sexual connection, with some other person.
B
To cause him or her to be confined or imprisoned.
Consent is not a defence to charges under sections 208 - 210 when the person taken is under the age of 16 years.
T or F
True
Consent can only be conveyed by words
T or F
False
Consent may be conveyed by words, conduct or both
What must you consider in relation to “consent obtained by duress”?
A
The length of time between the threat, pressure or coercion being made and the completion of the act of “taking away” or “detaining” .
B
The offenders actions and words before, during and after the event
C
The victim’s state of mind and how easy it was to override the will of the individual.
D
Whether the threats, pressure or coercion are such that they destroy the reality of consent and overbear the will of the individual
D
Whether the threats, pressure or coercion are such that they destroy the reality of consent and overbear the will of the individual
According to R v Cox “consent is a person’s deliberate and involuntary agreement to something”.
T or F
False
R v Cox states that “consent must be full, voluntary, free and informed.. freely and voluntarily given by a person in a position to form a rational judgement.”
The offence of abduction or kidnapping is committed at the time of the taking away so as long as the offender has the necessary intent at that time. The prosecution do not need to show that the intent was carried out.
Case Law
T or F
True
R v Mohi
Whether the intent to sexually violate, hold for service or ransom, confine etc etc actually happens after the victim has been taken away is irrelevant to the charge of abduction or kidnapping so long as one of the necessary intent exists at the time of the taking away or detaining. ie. an offender might change their mind about what their intentions are after they’ve kidnapped or abducted someone but by then the offence is already complete.
There are two specific types of intention that the prosecution must prove in order to prove intent in criminal law. What are they?
A
An intention to do any act and an intention to produce any result
B
An intention to do a deliberate act and an intention to produce any result
C
An intention to do a deliberate act and an intention to produce a specific result
C
An intention to do a deliberate act and an intention to produce a specific result
A ransom is a sum of money demanded or paid for the release of a person being held captive
T or F
True
Section 210 Crimes Act 1961 Abduction of a Young Person - A parent or guardian cannot be convicted of this offence if it involves their own child
T or F
False
A parent may commit an offence against this section in respect of their own child where their actions are unlawful: ie where a parent takes a child away from another parent in contravention of a court order.
Identify the case law: Where age is an essential ingredient “The best evidence possible in the circumstances should be adduced by the prosecution in proof of [the victim’s] age”.
A
R v Forrest and Forrest
B
R v Cox
C
R v Crossan
D
R v Wellard
A
R v Forrest and Forrest
Explanation:
R v Cox relates to consent and possession
R v Crossan relates to “taking away” and “detaining”
R v Wellard relates to the essence of kidnapping being “the deprivation of liberty coupled with the carrying away from the place where the victim wants to be”
The elements of Abduction s208 CA1961 are:
Unlawfully
Takes away or detains
A person
Without their consent or with consent obtained by fraud or duress
with intent to marry him/her or have sexual connection with him/her or cause him/her to be married or to have sexual connection with some other person.
T or F
True
What was held in R v Wellard in relation to taking away?
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”.
Ricardo is upset with his ex-girlfriend now seeing a new man, Stan. In an attempt to split them up he sits outside Stan’s work and when he leaves for the day he grabs him, knocks him out and throws him into the back of his van. He then ties Stan up in the basement of his house for a couple days before letting go after seeing how upset his girlfriend became. Can Police lay a charge of taking away and one of detaining?
Case Law
A
No, they are out of the same offence so one charge only.
B
No, his intent wavered so therefore did not go through with the offence.
C
Yes, “taking away” and “detaining” are two separate and distinct acts.
C
Yes, “taking away” and “detaining” are two separate and distinct acts.
R v Crossan
Taking away and detaining are separate and distinct offences. The first consists of taking [the victim] away; the second of detaining them. The first offence was complete when she was taken against her will. Then, having taken her away, he detained her against her will, and his conduct in detaining her constituted a new and different offence.
Intent under R v Collister states circumstantial evidence from which an offender’s intent may be inferred from:
A
Offender’s actions & words, surrounding circumstances, nature of the act itself.
B
Offender’s actions & words, surrounding circumstances & nature of the offence
C
Offender’s actions & words, surrounding circumstances & the victims reaction
A
Offender’s actions & words, surrounding circumstances, nature of the act itself.
Outline the elements of Abduction of Young Person u16 s210(1)
With intent to deprive a parent or guardian or other person having lawful care or charge of a young person of the possession of the young person, unlawfully takes or entices away or detains the young person
The elements of Kidnapping, s209 are:
Everyone who unlawfully, takes away or
detains a person, without his/her consent or
with his/her consent obtained by fraud or duress
(a)With intent to hold him/her for ransom or to
service.
(b)With intent to cause him/her to be confined
or imprisoned
(c)With intent to cause him/her to be sent or taken out of New Zealand
T or F
True
Outline the 3 intents that relate to Aggravated Wounding, Section 191(1) Crimes Act, 1961.
(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
Identify four types of additional circumstantial evidence that may assist in proving an offender’s intent in serious assault cases.
- Prior threats
- Evidence of premeditation
- Use of a weapon
- Body parts targeted (e.g head)
- Degree of force used
- Was the use of a weapon opportunistic or purposely brought
- Number of blows
- Degree of resistance or helplessness of victim (unconscious)
Outline what the case law R v McArthur [1975] relates to.
‘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 be more than transitory or trifling.
Explain the difference between grievous bodily harm and wound
Case law GBH
Case law Wounds
Grievous bodily harm is harm that is really serious (DPP v Smith)
Wound is a breaking of the skin evidence by the flow of blood. May be internal or external, (R v Waters)
Explain what the ‘Doctrine of transferred malice’ relates to.
Where harm intended for one person is accidentally inflicted on another, he is still criminally liable.
In relation to rendering a person incapable of resistance by any violent means, this is limited only to physical violence. Threats of violence will not suffice.
T or F
False
The term ‘violent means’ is not limited to physical violence and may include threats of violence depending on the circumstances.
Freda and Max are watching television at home when they get into an argument about what channel to turn to. Freda becomes so annoyed with Max she picks up a heavy glass ashtray from on the coffee table and smacks Max in the face with it. The blow causes Max to fall to the ground and he suffers a broken nose.
A
Assault with Intent to Injure, Section 193, Crime Act 1961
B
Injuring with Intent, Section 189(1), Crimes Act 1961
C
Wounding with Intent, Section 188(1), Crimes Act 1961
B
Injuring with Intent, Section 189(1), Crimes Act 1961
Explain what each of the following mean:
Grievous Bodily Harm
Wound
Maims
Disfigures
GBH - harm that is really serious
Wound - involves a breaking of the skin evidenced by the flow of blood. May be internal / external
Maims - depriving another person of the use of a limb or one of the senses
Disfigures - to deform or deface; to mar or alter the figure or appearance of a person
The three subsections that change wounding s188 to aggravated wounding s189 are:
a) commit or facilitate the commission of any imprisonable offence
b) avoid detection of himself or any other person in the commission of any imprisonable offence
c) avoid arrest or facilitate the flight of himself or any other person upon the commission or attempted commission of any imprisonable offence.
T or F
True
The enhanced Victims Rights Act 2014 section 4 (a)(iii) expands the definition of a victim to also include:
A
The spouse or civil union partner of a person against whom an offence is committed by another person
B
A parent or legal guardian of a child, or of a young person against whom an offence is committed by another person
C
A person against whom an offence is alleged to have been committed by another person
D
Any person who makes a formal complaint to the police about an offence committed by another person
B
A parent or legal guardian of a child, or of a young person against whom an offence is committed by another person
Explanation:
Enhanced Victim’s Rights Act 2014 Section 4(a)
Victim definition
(i) a person against whom an offence is committed bu another person
(iii) a parent or legal guardian of a child or of a young person who falls within subparagraph (i)
In Child protection Protocol cases where there has been a criminal offence against a child how should you make a referral to Oranga Tamariki
A
A phone call to a local OT office with a follow-up electronic CPP referral form (Pol350)
B
Electronically using the CPP referral form (Pol350)
C
Electronically forwarding the CPP referral form to the Oranga Tamariki National Contact Centre and CC the Police Comms centre Reporting Line
D
Any method outlined above
D
Any method outlined above
In a Child Protection Protocol matter, who must interview the children
A
A specialist ASA level 3 interviewer
B
A qualified detective in cases where a specially trained interviewer is not available
C
Anyone may question a child but care must be taken in the formulation of the questions
D
A specialist child witness interviewer
D
A specialist child witness interviewer
Is indecent Assault a ‘Specified Offence’ under section 29, Victims Rights Amendment Act 2014?
T or F
True
Specified Offence Defined
In this Act , a specified Offence is
(a) an offence of a sexual nature specified in
(i) Part 7 of the Crimes Act 1961, excluding the offences in section 143 and 144
Police V Emerali describes how the term usable amount is related to dealing. What was found in this case law
A
The quantity of the drug does not extend to some minute and useless residues of the substance.
B
It is irrelevant the actual physical amount the defendant has in their possession as long as it can be shown to be the alleged controlled drug
C
The quantity of the drug must be usable in the sense if it is over a certain amount then it is a usable amount
D
The prosecution must prove that the amount was a usable amount in court proceedings
A
The quantity of the drug does not extend to some minute and useless residues of the substance.
Heroin, cocaine, LSD, Psilocybin, DMA are all examples of controlled drugs from what schedule of the MODA 1975 A Schedule 1 B Schedule 2 C Schedule 3 D Schedule 4
A
Schedule 1
Cannabis plant/seed/fruit, coca Leaf, BZP, controlled drug analogues are all examples of controlled drugs from what schedule of the MODA 1975 A Schedule 1 B Schedule 2 C Schedule 3 D Schedule 4
C
Schedule 3
MDMA, morphine, cannabis preparation (oil, Hash), GHB (Fantasy) are all examples of controlled drugs from which schedule of the MODA 1975 A Schedule 1 B Schedule 2 C Schedule 3 D Schedule 4
B
Schedule 2
John, a local drug dealer, is interviewed about supplying Class A section 6(1)(c) MODA75 to Jill, a local prostitute. During the interview he denies giving Jill any drugs and instead claims that he left the drugs on the car seat, told Jill and she took the drugs from his car. He admits showing her his cache of drugs and admits doing nothing to prevent her from taking a point bag of meth from it. Is John still liable for the offence
A
Yes - It does not change his liability as he has caused a transaction and handing over of the drugs even though there was no physical transfer of the drugs to Jill.
B
No - He is liable for possession for supply 6(1)(f) but not for supplying as it cannot be proven that he has ‘supplied’ the drugs to Jill
A
Yes - It does not change his liability as he has caused a transaction and handing over of the drugs even though there was no physical transfer of the drugs to Jill.
Explanation:
Giving can occur without an active transfer of the drugs – for example where a person passively permits another to help themselves from a cache of drugs.
Explain your understanding of presumption under s6(6) of MODA 1975.
Persons in possession of controlled drugs over certain specified amounts are considered to have possession of those drugs for the purpose of supply, unless they can prove otherwise.
What was held in R v Forrest and Forrest?
The best evidence possible in the circumstances should be adduced by the prosecution in proof of [the victim’s] age.
How does the crown best prove age?
A
Birth certificate along with independent evidence that victim is the person named in the certificate.
B
Birth certificate along with the victim giving evidence that they are the person named in the certificate.
C
Student identification along with independent evidence that victim is the person named in the identification.
A
Birth certificate along with independent evidence that victim is the person named in the certificate.
Under s2 MODA 1975, what is the definition of a controlled drug?
any substance, preparation, mixture or article specified in Schedule 1, Schedule 2 or Schedule 3 of this Act and includes any controlled drug analogue
Mavis is an elderly grandmother who lives with her grandson, John. Unbeknown to Mavis her John is growing several cannabis plants in her glass house. While John is away Mavis feeds and waters the plants for him thinking they are tomato plants. Mavis is liable for possession of the plants.
T or F
False
It is not necessary for the Crown to establish knowledge on the part of the accused. In the absence of evidence to the contrary knowledge on her part will be presumed, but if there is some evidence that the accused honestly believed on reasonable grounds that her act was innocent, then she is entitled to be acquitted unless the jury is satisfied beyond reasonable doubt that this was not so. (Strawbridge)
In proving guilty knowledge for drug dealing what does KKI stand for?
The offender -
knew about the offence and
knew the substance involved was a controlled drug and
intended to commit the offence
Emma is a local meth cook. Police execute a SW and locate her in the lab wearing a mask and gloves. Also in the lab is meth making equipment along with a jug containing a two layered liquid, which ESR state contains liquid meth. She states she is finding a cure for OMICRON. Emma has completed the offence of meth manufacture.
Case Law
T or F
True
R v Rua
The offence is complete once the prohibited substance is created, whether or not it is in a usable form
Matt is a local drug dealer who is stopped by Police. His bag is searched and located inside is 8 grams of cocaine in 1 gram bags, scales, cash and three cell phones. Outline the offence and elements that Matt is liable for?
Possession of a Controlled Drug (or Class A) for Supply.
Anyone in possession of
A Class A Controlled Drug
For the purposes of 6(1)(c) (or for the purpose of Supply)
Sarah is desperate for cash and as such has turned to dealing in MDMA (ecstasy). She comes into possession of 100 tablets of ecstasy. Her close friend Ivan is a man about town and is heading out for the night. To help him get his groove on he asks Sarah for 5 tablets. Sarah gives Ivan the 5 tablets on tick. The elements for this offence of Supply are?
A
Anyone who supplies, a Class A controlled drug, to any person
B
Anyone who sells, a Class B controlled drug, to any person
C
Anyone who supplies a Class B controlled drug, to any person
C
Anyone who supplies a Class B controlled drug, to any person
In relation to Offers to Supply, what are the four circumstances outlined in R v Brown.
offers to supply a drug that he has on hand
offers to supply a drug that will be procured at some future date
offers to supply a drug that he mistakenly believes he can supply
offers to supply a drug deceitfully, knowing he will not supply that drug
What is the difference between Supply Class C (s6 (1)(d)) and Sell Class C (s6(1)(e))
A
There is no difference
B
Age (1)(d) is u18 (1)(e) is over 18
C
One is supply the other is sell.
D
Both B and C are correct
D
Both B and C are correct
To enter and search a place under section 15 you must suspect that the item being searched for is in the place and believe that if you delay to obtain a search warrant the item will be C.A.D.D
T or F
False
False, you must BELIEVE that the item being searched for is in the place and believe that if you delay to obtain a search warrant the item will be C.A.D.D
Johnny stabs Jill in the chest and runs into a nearby house taking the knife used with him. Upon your arrival a witnesses tells you this. You make no approach to the house and Johnny is unaware of your presence.
In these circumstances would you be able to enter the house under section 15 to search for the knife?
A
Yes, because you believe the knife is in the house and it is evidential material to an offence punishable by more than 14 years imprisonment
B
Yes, because you believe evidential material to an offence punishable by more than 14 years imprisonment is in the house and believe that if you delay to get a search warrant the item will be C.A.D.D
C
No, because even though you believe the knife is in the house and it is evidential material to an offence punishable by more than 14 years imprisonment you would not have grounds to believe if you delay to get a search warrant the item will be C.A.D.D
C
No, because even though you believe the knife is in the house and it is evidential material to an offence punishable by more than 14 years imprisonment you would not have grounds to believe if you delay to get a search warrant the item will be C.A.D.D
There is no indication that if entry is delayed in order to obtain a search warrant, the evidential material will be destroyed, concealed, altered or damaged
Section 16 only applies to person(s) in a public place who are suspects of offences punishable by imprisonment of 14 years or more.
T or F
False
Explanation:
False – Section 16 applies to any person in a public place you believe has possession of evidential material relating to an offence punishable by 14 years or more.
Michael commits an aggravated robbery at a local dairy and steals $300.00 in cash. As he runs off he drops a $50 note on the footpath that is subsequently picked up by Louise.
A witness tells you this and you locate Louise a short distance away and she denies picking up the money.
Could you search Louise under section 16?
A
Yes, because she is in a public place and you believe she is in possession of evidential material relating to an offence punishable by 14 years or more
B
Yes, because she is in a public place and you suspect she is in possession of evidential material relating to an offence punishable by 14 years or more
C
No, because she is not a suspect of an offence punishable by 14 years or more
A
Yes, because she is in a public place and you believe she is in possession of evidential material relating to an offence punishable by 14 years or more
Explanation:
A constable may search a person without warrant in a public place if the constable has reasonable grounds to believe that the person is in possession of evidential material relating to an offence punishable by imprisonment for a term of 14 years or more
A vehicle is parked in the driveway of a dwelling that you believe was involved in an aggravated robbery and contains evidential material relating to the offence. As such you may search it under section 17
T or F
False
Explanation:
False, the vehicle must be in a public place.
Any person exercising a search power may remove items of uncertain status to conduct enquiries to ascertain whether it has been stolen or not.
T or F
False
False, items of uncertain status may only be removed for the purpose of examination or analysis to determine whether it may be lawfully seized
You are conducting a search for methamphetamine on premises and locate a small bag of a white powder that you are uncertain as to what it is.
Could you seize this bag under section 112?
A
Yes, because you suspect the white powder is a controlled drug and want to conduct an analysis on it to confirm that it is a controlled drug and whether it may lawfully be seized.
B
No, because you do not believe it is the drug you were searching for
C
Yes, because it looks like methamphetamine so this is sufficient for you to uplift it
A
Yes, because you suspect the white powder is a controlled drug and want to conduct an analysis on it to confirm that it is a controlled drug and whether it may lawfully be seized.
You are conducting a search of premises with a search warrant for a 65cm smart TV.
You look into the draws of a cabinet beside a bed and locate what you believe to be a bag of cannabis.
Could you lawfully uplift this item under section 123?
A
Yes, because you believe them to be drugs so believe that you could legally seize them
B
No, because the drawers are not a place that you would expect to locate the item being searched for
C
No, because the drugs were not the item listed on the search warrant
B
No, because the drawers are not a place that you would expect to locate the item being searched for
Explanation:
the drawers are not a place you would look for a 65cm television
When you invoke section 17 of the Search and Surveillance Act 2012, who must be informed of your intention to invoke this statutory power and enter the house?
A NCO (for approval) B Comms (for officer safety) C District Command Centre (for officer safety and command) D All of the above where practicable
D
All of the above where practicable
Keith and Matthias are at a local café having a conversation in raised voices about a planned Aggravated Robbery to a local bottle store. You are an off duty officer sitting next to them and over hear their conversation.
Do you need a surveillance device warrant for this situation?
A
Yes. They are having a private conversation and desire their conversation to be confined to both of them
B
No. In the circumstances and being a public café they cannot reasonably expect their conversation to be private and that it will not be overheard
C
No. They are discussing a serious offence with a penalty of 14 years imprisonment
B
No. In the circumstances and being a public café they cannot reasonably expect their conversation to be private and that it will not be overheard
Identify the two matters that must exist before undertaking a warrantless search of a person for a controlled drug under section 22, Search and Surveillance Act 2012
A
Have RGTS that an offence against the Misuse of Drugs Act 1975 has been, or is being or is about to be committed, in respect of that controlled drug or precursor substance and that an offence against the Misuse of Drugs Act 1975 has been, or is being or is about to be committed, in respect of that controlled drug or precursor substance and
Have Have RGTB that a person is in possession of a controlled drug or precursor substance. that a person is in possession of a controlled drug or precursor substance.
B
Have RGTB that an offence against the Misuse of Drugs Act 1975 has been, or is being or is about to be committed, in respect of that controlled drug or precursor substance and that an offence against the Misuse of Drugs Act 1975 has been, or is being or is about to be committed, in respect of that controlled drug or precursor substance and
Have Have RGTS that a person is in possession of a controlled drug or precursor substance. that a person is in possession of a controlled drug or precursor substance.
A
Have RGTS that an offence against the Misuse of Drugs Act 1975 has been, or is being or is about to be committed, in respect of that controlled drug or precursor substance and that an offence against the Misuse of Drugs Act 1975 has been, or is being or is about to be committed, in respect of that controlled drug or precursor substance and
Have Have RGTB that a person is in possession of a controlled drug or precursor substance. that a person is in possession of a controlled drug or precursor substance.
Explanation:
Section 22 S&S Act 2012
Have Have RGTS that an offence against the Misuse of Drugs Act 1975 has been, or is being or is about to be committed, in respect of that controlled drug or precursor substance and that an offence against the Misuse of Drugs Act 1975 has been, or is being or is about to be committed, in respect of that controlled drug or precursor substance and
Have Have RGTB that a person is in possession of a controlled drug or precursor substance. that a person is in possession of a controlled drug or precursor substance.
Section 45 of the Search and Surveillance Act 2012 allows us to conduct trespass surveillance under certain circumstances. What circumstances must exist to make trespass surveillance lawful? (select the option/s that may apply)
A
in relation to an offence punishable by a term of imprisonment of 7 years or more
B
in relation to an offence punishable by a term of imprisonment of 14 years or more
C
Against section 44, 45, 50, 51, 54 or 55 of the Arms Act 1983
Correct Answers
A
in relation to an offence punishable by a term of imprisonment of 7 years or more
C
Against section 44, 45, 50, 51, 54 or 55 of the Arms Act 1983
Explanation:
To obtain evidential material
A
in relation to an offence punishable by a term of imprisonment of 7 years or more
or
C
Against section 44, 45, 50, 51, 54 or 55 of the Arms Act 1983 (reference to certain sections of the Arms Act 1983 it will suffice)
Search and Surveillance Pg 45
You are tasked with trying to make observations of activity at an address where there is alleged to be drug dealing. You grab your binoculars and observe the occupants from afar and see them putting what looks like cannabis leaf into a big pot in the lounge of the property. Could the occupants of the address reasonably expect their activities to be private.
A
No - The binoculars are considered a surveillance device and can be used to observe activity in the curtilage of a property as long as the observations do not exceed 3 hours
B
No - The activities are able to be observed from a public place so cannot be considered private
C
Yes - Private activity means activity that, in the circumstances, any 1 or more of the participants in it ought reasonably to expect is observed or recorded by no one except the participants
D
A and B are both correct
C
Yes - Private activity means activity that, in the circumstances, any 1 or more of the participants in it ought reasonably to expect is observed or recorded by no one except the participants
Explanation:
Private activity means activity that, in the circumstances, any 1 or more of the participants in it ought reasonably to expect is observed or recorded by no one except the participants
Everyone has the right to privacy in their own home, the right to refuse entry to others and the right to expect that they should be able to conduct lawful activities in private.
When you lawfully enter private premises then you can carry out surveillance by means of your unaided visual observation, unaided sense of hearing and unaided sense of smell. You can also record, by way of audio or visual device, what you see or hear there, providing the device you use does not enhance (e.g. amplify or enlarge) your ability to observe or hear.
However surveillance by use of a device that enhances your ability to conduct that surveillance, is regarded as more intrusive.
Where surveillance with the use of a surveillance device is concerned, the Act restricts surveillance activity in places an individual “ought reasonably to expect” are private. (Exceptions apply only in situations of emergency or urgency).
“a man’s home is his castle”
Reference: S21 NZBOR Act 1990
S3 Search & Surveillance Act 2012 definition Private activity
You knock on the neighbouring address to ask permission to make some observations over the fence from the rear of their property. No one is home so you have a quick look over the fence and see some cannabis plants growing in the garden of the target address. Can you use this intelligence?
A
No - You have not received permission to be at the rear of the neighbouring or target address and all surveillance for intelligence gathering or for evidence gathering is unlawful if trespass is involved.
B
Yes - You have not used a surveillance device and the observations are of an offence that may be proceeded with by way of a warrant
C
Yes - The observations are in the curtilage of the property and observed without the use of a surveillance device
A
No - You have not received permission to be at the rear of the neighbouring or target address and all surveillance for intelligence gathering or for evidence gathering is unlawful if trespass is involved.
Explanation:
Surveillance without a device (for example, watching activity with the naked eye, or listening to a conversation without the aid of a listening device) is governed by the pre-existing law. In brief, such surveillance is lawful if no trespass is involved or in the particular circumstances is not unreasonable under section 21 of the New Zealand Bill of Rights Act 1990.
Surveillance is unlawful if trespass is involved – or if is undertaken by use of a device without a SDW.
It follows that the use of a surveillance device is always unlawful if it is not:
- generally lawful without warrant (category 1); or
- authorised by warrant (category 2); or
- authorised by the emergency or urgency warrantless provision (category 3).
Unless the use of the device falls into category 1, all surveillance for intelligence gathering, or for evidence gathering in respect of offences for which a warrant is not available, is unlawful.
Exemption
- Observe private activity without the use of a surveillance device from public areas.
- Observe private activity in the curtilage of private premises by means of a surveillance device; for a single investigation, or a connected series of investigations, for a period of observation that does not exceed:
- 3 hours in any 24-hour period; or 8 hours in total.
You are told that your partner is observing the activity in the address with binoculars from a neighbouring address where no-one is home. What should you tell your colleague?
A
Stop all surveillance immediately as it is unlawful
B
If the penalty for the offence being observed is more that 7 years he can continue as long as he does not exceed 3 hours observation within 24 hours
C
Note if there is any other indications that evidence may be CADD so we can enact a S&S power instead of continuing observing
D
Stop using binoculars as they count as a surveillance device and continue making observations so long as the activity is in the curtilage of the property
A
Stop all surveillance immediately as it is unlawful
Explanation:
Stop all surveillance activity as it is unlawful
He has utilised trespass surveillance with the use of a visual surveillance device
You should have a SDW to be undertaking current activity
Adopt a lawful observation position
Record comprehensive notes of his actions for later disclosure
What is the definition of Evidential Material?
In relation to a particular offence, means evidence of the offence or any other item, tangible or intangible, or relevance to the investigation of the offence.
What does CADD stand for in relation to evidential material?
A
Covered, Altered, Damaged, Destroyed
B
Concealed, Altered, Damaged, Destroyed
C
Concealed, Altered, Damaged, Decomposed
D
Concealed, Amended, Damaged, Destroyed
B
Concealed, Altered, Damaged, Destroyed
Constable Luck executes a search power. In executing this power Constable Luck only has to identify himself, state the section and name of the Act he is using.
T or F
False
Explanation:
Under s125 or s131 you must:
- Identify yourself (ID if not in uniform)
- Announce intention
- State the name of the Act (i.e. S&S)
- Reason for search
- …unless impractical to do so in the circumstances
The owner of the Traveller’s Motel frequently rents rooms to the general public. The owner is supportive of police and consents to a visual surveillance device being placed in room 1. Michael rents room 1 at the Traveller’s Motel. Is Michael’s motel room a private or non-private premise while rented by him? Is a SDW required to install a visual surveillance device in Michael’s room?
Yes or No
Yes
When rented by Michael, the Motel room is not a place where the public are frequently permitted to have access so the room is not within the definition of non-private premises and is therefore a private premise. An SDW is required to use a “visual surveillance device” to observe/record “private activity” in “private
premises”.
Constable You is attending minor dispute at an address. She is invited in by the occupier of the address. Whilst obtaining details she hears to flatmates talking in the lounge about grabbing a gun to go scare a drug dealer that has ripped them off. Constable You believes she is able to give evidence in relation to what she heard without obtaining a surveillance device warrant.
T or F
True
Explanation:
Under s47 an enforcement officer lawfully on private premises recording what he/she can see/hear (provided the officer only records what he/she could see/hear without the use of a surveillance device)
Define the term curtilage?
It is a legal term used to define the land immediately surrounding a house or dwelling, including any closely associated buildings and structures, but excluding and associated ‘open fields beyond’. If defines the boundary within which a home owner can have a reasonable expectation of privacy and where ‘common home activities’ take place.
Police are executing a search warrant for methamphetamine supply. When searching a wardrobe in one of the bedrooms Constable Me locates a clear plastic bag containing several cell phones and 2 lap-tops with the serial numbers removed. Constable Me is able to seize these items.
T or F
True
Explanation:
Yes. Either under s112 ‘Uncertain Status’ Constable Me is executing a lawful search power for drugs and during a reasonable search has located these items some which have the serial number removed indicating that they are possibly stolen. Therefore they can be seized for further examination / analyse / enquiries to determine if they may be lawfully seized (stolen property).
Police are attending a 5F at an address. On being invited in by the victim they see the butt of a firearm sticking out from underneath the couch. Can attending Police seize this item.
A
Yes, because it is a firearm.
B
No. They are there for a 5F the firearm is not apart of their reason for being there.
C
Yes, they are at the address lawfully and the firearm is plain view.
C
Yes, they are at the address lawfully and the firearm is plain view.
Police are attending the scene of an aggravated robbery with a knife where cigarettes and cash was taken. The offender was seen leaving with a bag and holding the knife. A witness then advises Police that a person matching the description, carrying a bag has gone into an address nearby. Can Police enter the address without a warrant? Explain your answer.
Yes.
Under s8 enter place to search and arrest offender & believe that if entry not effected immediately the person will avoid arrest or evidential material will be CADD.
Under s15 enter place as suspect an imprisonable offence punishable by 14 years or more has been committed, evidential material is at the place and maybe CADD.
Must decision log RGTS and RGTB along with not practicable to obtain SW in circumstances.
For s.123 (S & S) to apply the following grounds need to exist for an enforcement officer who is exercising his or her duties:
Is lawfully in any place, conducting a lawful search of a person, and/or exercising a search power
T or F
True
Mary and Sally live next door to each other but do not get along. Marys Son Phil is playing in the driveway and loses a kite in Sally’s yard. Mary goes across the fence to get it. An argument ensues which quickly escalates into violence, bringing the neighbours out of their houses. Sally told Mary that she will ‘farkin kill her once and for all’ and that ‘she had better be wearing her fighting pants’.This turns quite brutal, Mary is pushing Sally’s face away with her left hand as she is being held in a head lock. Sally sees the tempting finger approach her mouth. She opens her mouth and bites down on Marys finger, severing it off in her mouth. She spits the severed finger out of her mouth and the fight continues until Police arrive. What is the offence quoting Act, Section, Subsection, ingredients and complete a RTS
Wounding with Intent to cause GBH
S188(1) CA1961
With Intent to Cause gBH
to any person
Maims
any person
2 x types of intent, to get a specific result and commit the act. Sally intended to wound Mary as the act was very violent, the words used and she made a conscious decision to bite her finger off.
Cause GBH = Harm that is really serious. Her intent is demonstrated clearly based on the level of violence, Sally tells her that she is going to ‘farkin’ kill her’.
to any person = proved by judicial notice or circumstantially. Mary is a person.
Maims = loss of a sense/ bodily part permanently. Biting a persons finger off causes a permanent loss of a sense.
any person (AA)
John WONG is a kiwi fruit farmer who owes money to a local farming gang who he hired at picking season. One of the gang, Trevor DWYER, has a degree in Psychology and thinks he knows how to get the cash owed. He gets some of the gang together and visits John at his home address. Trevor convinces John to get in his vehicle under the pretence of getting a beer. Once in the vehicle John discovers the accomplices in the back seat and that Trevor’s intent is more sinister. Trevor starts the car and tells John that he is driving to an ATM and that he better pay the money owed or he will not see his family again. They drive to the ATM, John gets the money owed and pays Trevor. Trevor tells him to walk home and drives off. What is the offence, Act, SS and RTS?
Kidnapping
S209 CA1961
Unlawfully
takes away or detains a person
without his or her consent or with his or her consent obtained by fraud or duress,—
(a) with intent to hold him or her for ransom or to service; or
(b) with intent to cause him or her to be confined or imprisoned; or
Reggie is a solo dad who cares for his 11 yr old son Jeremy. Unfortunately Reggie has a bad habit of spending every cent he earns on either the pokies or alcohol. This results in Jeremy often going to school hungry, poorly dressed and generally unkempt.
As a result of an Oranga Tamariki notification originating from the school a social worker has been assigned to the case. Despite having several options given to him and numerous opportunities given for a change in lifestyle OT eventually obtain official custody of Jeremy. Jeremy is then placed in an emergency caregiver’s home.
Reggie is told this verbally and in writing. He is warned that he is not to directly approach Jeremy during this difficult time but to go through OT in order to see his son. Despite this warning one afternoon at the conclusion of the school day Reggie waits for Jeremy outside the school gates.
When he sees his son he offers him the opportunity to come away on holiday with him rather than returning to his current OT caregivers. Jeremy loves his Father despite his shortcomings and readily agrees to this proposition. Father and Son then leave the school and go on holiday.
- Identify the most appropriate offence, detailing the act, section and elements of the offence.
- Support your answer by way of discussion
Abduction of a Young Person Under 16
Section 210 (1) C.A.1961
With intent to deprive any person having the lawful care or charge of a young person of the possession of that young person.
Unlawfully
Takes
A Young Person under 16
- Everyone who - Reggie is the offender, Jeremy is the victim of the taking, however the emergency caregiver is also the victim in that they have been deprived of the lawful possession of Jeremy. The fact someone is a person is generally proven by JN/CE.
- With intent to deprive any person having the lawful care or charge of a person of the possession of that young person.
Intent: Means to do a deliberate act to achieve a specific intent, must be more than involuntary or accidental.
Possession - Possession has two elements, the physical and the mental, both must be proven (R V COX).
CL: R V COLLISTER: Circumstantial evidence from which an offender’s intent may be inferred include the offender’s actions or words before, during or after the event, the surrounding circumstances and the nature of the act itself.
CL: R V CHARTRAND - Whether the defendant had an innocent motive or intended to interfere with possession for a very short period is beside the point. It is not necessary to prove that the defendant intended permanent deprivation.
RTS: Reggie’s intent is inferred by both his words and actions. Reggie has been warned to stay away from Jeremy after he was placed into the care of an emergency caregiver organised by OT. Reggie intentionally goes to Jeremy’s school and waits there for him, knowing that he has been told he has to go through OT to see his son. Reggie then asks Jeremy if he wants to go on holiday knowing that he would be unlawfully taking Jeremy away from his new caregiver’s that have lawful possession of him. His intent is to take his son away on holiday despite knowing that he is under OT order not to.
- Unlawfully - Without legal justification or authority.
RTS: Reggie does not have lawful custody of Reggie, Jeremy has been placed in OT’s custody due to Reggie being unable to provide the proper care for Jeremy. Jeremy is in the lawful possession of an emergency caregiver.
- Takes - physically removing a person from one place to another.
It is immaterial whether the young person is taken, or is enticed away or is detained of his or her own suggestion. A person under the age of 16 cannot consent to being taken away or detained.
Statutory Defence - 210A - A person who believes in good faith that they had the right to the possession of the possesion cannot be charged with unlawfully taking a young person because they get possession of the young person. It is up to the prosecution to negate the good faith defence. It is up to the jury to decide whether or not the defendant acted with good faith
RTS: Reggie need to prove that he acted in good faith to take Reggie on holiday, however this defence would not be available to him because he was given plenty of notice by OT to change his behaviours which he didn’t and was advised to stay away from Jeremy which he again didn’t. Reggie did not act in good faith.
- A Young Person Under 16 - Jeremy is 11 years old. It is for the prosecution to prove the victim was under the age of 16 using the best evidence possible to do so.
FORREST AND FORREST - The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victim’s age. Usually by producing the victim’s birth certificate in conjunction with independent evidence that the victim is the person name in the certificate.
Abby is a 19 yr old living on the streets. She commits crime to survive. Late one evening she is hanging out at the local service station with her mate Tony when she leaves Tony and walks into the service station.
She takes out a length of reinforcing iron from the sleeve of her jacket and brandishing it, approaches Lizzie, the young staff member behind the counter. She shouts, “Give me all your smokes or I will bash your head in”. Lizzie, believing she would be beaten, hands over $200.00 worth of cigarettes to Abby.
Abby then runs from the store. As she runs out Tony, unaware of what has just happened, runs off with her
- Identify the most appropriate offence, detailing the act, section and elements of the offence.
- Support your answer by way of discussion.
Aggravated Robbery
Section 235 (c) C.A.1961
Being armed with an offensive weapon
Robs
Any person
- Everyone who - Abby is the offender and Lizzie is the victim, both are people. Usually accepted by JN/CE.
- Being armed with an offensive weapon
Being armed with - Means physically having the weapon on them and at hand and available for it’s immediate used should the circumstances arise.
Offensive Weapon - Any article made, changed or altered that is capable of causing bodily injury.
RTS: Abby physically has the reinforcing iron on her and pulls it out from her sleeve. The reinforcing iron is capable of causing serious bodily harm to Lizzie it it was used as a weapon. It must be proved that not only did Abby have possession in that she knowingly had custody or control but also that the weapon was available for its immediate use during the commission of a crime.
CL: R V COX - Possession has two elements, the physical element which is the actual physical custody or control and the mental element, a combination of knowledge and intention, knowledge in the sense of an awareness the thing is in her possession and an intention to exercise possession.
- Robs - Robbery is complete in that a theft has occurred, accompanied by threats of violence, to any person, used to extort the property stolen.
Extort - means to obtain by violence, coercion or intimidation. Implies an overbearing of the will of the victim.
CL: R V LAPIER - Robbery is complete the instant the property is taken with intent to steal it.
CL: R V MAIHI - It is implicit in accompany that their be a nexus (connection/link) in act of stealing and the threat of violence, both must be present.
CL: R V BROUGHTON - The threat of violence is the manifestation of the intention to inflict harm unless the money or property be handed over. Threats my be direct or veiled. Conveyed by words or both.
RTS: Abby approaches lizzie in a violent and threatening manner whilst brandishing a reinforced iron bar, accompanied with direct threats of force to Lizzie that she will bash her head in if she does not hand over all the smokes. As a result of Abby’s actions, Lizzie fears for her safety and believes Abby will carry out her threats and hands the smokes to Abby. Abby’s threats of violence towards Lizzie were used to extort the stolen property. Abby had every intention of going into the store and threatening who ever got in her way so that she could obtain the smokes, she knowingly went into the store with a weapon and brandished it when making the threats.
- Any Person - Lizzie was the intended victim and has been threatened in order for Abby to obtain the property. It is not necessary that the person robbed be the person harmed or threatened however this was the case in this scenario.
Baz and Phil have been drinking at the Glenfield tavern, by closing time they are well pissed and decide to walk home. They pass a party thats going on at a local house and try to get in. they are told by the owners that they are not invited and to leave the property. They walk from the address and Baz tells Phil that hes going to give them a scare. He picks up a bottle and throws it towards the roof. The bottle bounces off the roof and hits a partygoer in the head, causing a large bleeding gash
Cite the Act, section, offence, elements and a brief RTS
Wounding with Reckless Disregard for the safety of others s188(2) CA1961
With Reckless disregard for the safety of others, wounds any person.
Baz had no intent to wound, he had reckless disregard. He knows or ought to know of the risk and continues regardless of the consequences.
The bottle hit the victim and caused a gash, this comes within the definition of a wound.
The victim is a person, proved by judicial notice
A class B controlled drug means
A
the controlled drugs specified or described in schedule 1 to MODA 75.
B
the controlled drugs specified or described in schedule 2 to MODA 75
C
the controlled drugs specified or described in schedule 3 to MODA 75
D
the controlled drugs specified or described in schedule B to MODA 75
B
the controlled drugs specified or described in schedule 2 to MODA 75
Cannabis oil is a class C controlled drug
T or F
False
Explanation:
Cannabis preparations such as resin (hashish) and oil (hash oil) are class B controlled drugs
Drugs are classed A, B or C based on the level of risk of harm that they pose to individuals and society.
T or F
True
The level of risk of harm of class A, B or C drugs can be classified as
A
High, moderate, low
B
High, medium, low
C
Very high, moderate, low
D
Very high, high, moderate
D
Very high, high, moderate
Guilty knowledge (mens rea) is not an essential element of a section 6 MODA 75 offence.
Case Law
T or F
False
R v Strawbridge. It is not necessary for the Crown to establish knowledge on the part of the accused. In the absence of evidence to the contrary, knowledge on the part of the offender will be presumed UNLESS the accused can prove they believed on reasonable grounds that the act was innocent. ie they believed on reasonable grounds that they were growing tomatoes (and not cannabis). Guilty knowledge is an essential element to the offence.
Police v Emerali relates to…. (select all that apply)
A
a narcotic must be of a usable amount
B
whether or not the quantity of a drug is usable depends on more than just it’s size or weight, the nature and condition of the drug are also relevant
C
consideration should be given to whether a small and seemingly unusable amount of an illicit substance may be used to supplement other small amounts to make a larger usable quantity.
D
It is not necessary for the prosecution to prove that an amount is usable unless the defendant puts the matter in issue.
A
a narcotic must be of a usable amount
B
whether or not the quantity of a drug is usable depends on more than just it’s size or weight, the nature and condition of the drug are also relevant
C
consideration should be given to whether a small and seemingly unusable amount of an illicit substance may be used to supplement other small amounts to make a larger usable quantity.
The terms “produce” and “manufacture” are essentially synonymous, both relate to the process of creating controlled drugs.
Case Law
T or F
True
Explanation:
R v Rua the words produce or manufacture broadly cover the creation of controlled drugs by some form of process which changes the original substances into a particular controlled drug. Although Prosecution does need to specify when formulating a charge.
“producing” = changing the nature of the original substance ie cannabis plant to cannais oil
“manufacturing” =creating a different substance from the original materials ie methamphetamine from a multitude of chemicals.
Sharing controlled drugs amongst co-owners does not come under the definition of “distribute”.
Case Law
T or F
False
Explanation:
R v Donald Supply includes the distribution of jointly owned property between it’s co-owners.
To prove “an offer” the prosecution must satisfy two elements (select the two that apply)
A
The communicating of an offer to supply or administer a controlled drug
B
That the accused knew they could supply or administer a controlled drug
C
That the accused actually had the controlled drug on them to supply or administer
D
an intention that the other person believes the offer to be genuine
A
The communicating of an offer to supply or administer a controlled drug
D
an intention that the other person believes the offer to be genuine
R v Brown held that the offence of offering to supply a controlled drug can arise in a variety of ways. How many different kinds of offer are there according to the case law?
A 3
B 4
C 6
D 8
4
Explanation:
1. offering to supply a drug that an accused has on hand
- offering to supply a drug that will be procured at some future date
- offering to supply a drug that the accused mistakenly believes he can supply
- offering to supply a drug deceitfully, knowing that he will not supply that drug
Under Section 6(1)(c) MODA 75 the prosecution must prove that the drugs were supplied to another person although it is not necessary to identify that person
T or F
True
Explanation:
The offence is gender neutral and the fact that the person supplied is a “person” is generally accepted by judicial notice or proved by circumstantial evidence. No need to prove age.
For an offence under section 6(1)(e) is it necessary to prove the age of the person receiving or being offered the controlled drug?
Case Law
Yes or No
Yes
Explanation:
As age is an essential element of the offence you must adduce the best evidence possible as per Forrest & Forrest.
In a 6(1)(f) Possession for supply offence it is necessary for the Crown to prove that the defendant had: (select all that apply)
A
knowledge that the drug existed
B
Knowledge that it is a controlled drug
C
Some degree of control over it
D
an intention to possess it
A
knowledge that the drug existed
B
Knowledge that it is a controlled drug
C
Some degree of control over it
D
an intention to possess it
To prove a charge of Conspiracy under S6(2A) of MODA the prosecution need only prove an agreement between two or more people.
T or F
False
Explanation:
The prosecution must also prove that the conspiracy was against section 6(1) of MODA 75.
The enhanced Victims Rights Act 2014 section 4 (a)(iii) expands the definition of a victim to also include:
A
The spouse or civil union partner of a person against whom an offence is committed by another person
B
A parent or legal guardian of a child, or of a young person against whom an offence is committed by another person
C
A person against whom an offence is alleged to have been committed by another person
D
Any person who makes a formal complaint to the police about an offence committed by another person
B
A parent or legal guardian of a child, or of a young person against whom an offence is committed by another person
Explanation:
Enhanced Victim’s Rights Act 2014 Section 4(a)
Victim definition
(i) a person against whom an offence is committed bu another person
(iii) a parent or legal guardian of a child or of a young person who falls within subparagraph (i)
In Child protection Protocol cases where there has been a criminal offence against a child how should you make a referral to Oranga Tamariki
A
A phone call to a local OT office with a follow-up electronic CPP referral form (Pol350)
B
Electronically using the CPP referral form (Pol350)
C
Electronically forwarding the CPP referral form to the Oranga Tamariki National Contact Centre and CC the Police Comms centre Reporting Line
D
Any method outlined above
D
Any method outlined above
In a Child Protection Protocol matter, who must interview the children
A
A specialist ASA level 3 interviewer
B
A qualified detective in cases where a specially trained interviewer is not available
C
Anyone may question a child but care must be taken in the formulation of the questions
D
A specialist child witness interviewer
D
A specialist child witness interviewer
Is indecent Assault a ‘Specified Offence’ under section 29, Victims Rights Amendment Act 2014?
T or F
True
Explanation:
Specified Offence Defined
In this Act , a specified Offence is
(a) an offence of a sexual nature specified in
(i) Part 7 of the Crimes Act 1961, excluding the offences in section 143 and 144
Police V Emerali describes how the term usable amount is related to dealing. What was found in this case law
A
The quantity of the drug does not extend to some minute and useless residues of the substance.
B
It is irrelevant the actual physical amount the defendant has in their possession as long as it can be shown to be the alleged controlled drug
C
The quantity of the drug must be usable in the sense if it is over a certain amount then it is a usable amount
D
The prosecution must prove that the amount was a usable amount in court proceedings
A
The quantity of the drug does not extend to some minute and useless residues of the substance.
Heroin, cocaine, LSD, Psilocybin, DMA are all examples of controlled drugs from what schedule of the MODA 1975 A Schedule 1 B Schedule 2 C Schedule 3 D Schedule 4
A
Schedule 1
Cannabis plant/seed/fruit, coca Leaf, BZP, controlled drug analogues are all examples of controlled drugs from what schedule of the MODA 1975 A Schedule 1 B Schedule 2 C Schedule 3 D Schedule 4
C
Schedule 3
MDMA, morphine, cannabis preparation (oil, Hash), GHB (Fantasy) are all examples of controlled drugs from which schedule of the MODA 1975 A Schedule 1 B Schedule 2 C Schedule 3 D Schedule 4
B
Schedule 2
John, a local drug dealer, is interviewed about supplying Class A section 6(1)(c) MODA75 to Jill, a local prostitute. During the interview he denies giving Jill any drugs and instead claims that he left the drugs on the car seat, told Jill and she took the drugs from his car. He admits showing her his cache of drugs and admits doing nothing to prevent her from taking a point bag of meth from it. Is John still liable for the offence
A
Yes - It does not change his liability as he has caused a transaction and handing over of the drugs even though there was no physical transfer of the drugs to Jill.
B
No - He is liable for possession for supply 6(1)(f) but not for supplying as it cannot be proven that he has ‘supplied’ the drugs to Jill
A
Yes - It does not change his liability as he has caused a transaction and handing over of the drugs even though there was no physical transfer of the drugs to Jill.
Explanation:
Giving can occur without an active transfer of the drugs – for example where a person passively permits another to help themselves from a cache of drugs.
Explain your understanding of presumption under s6(6) of MODA 1975.
Persons in possession of controlled drugs over certain specified amounts are considered to have possession of those drugs for the purpose of supply, unless they can prove otherwise.
What was held in R v Forrest and Forrest?
The best evidence possible in the circumstances should be adduced by the prosecution in proof of [the victim’s] age.
How does the crown best prove age?
A
Birth certificate along with independent evidence that victim is the person named in the certificate.
B
Birth certificate along with the victim giving evidence that they are the person named in the certificate.
C
Student identification along with independent evidence that victim is the person named in the identification.
A
Birth certificate along with independent evidence that victim is the person named in the certificate.
Under s2 MODA 1975, what is the definition of a controlled drug?
any substance, preparation, mixture or article specified in Schedule 1, Schedule 2 or Schedule 3 of this Act and includes any controlled drug analogue
Mavis is an elderly grandmother who lives with her grandson, John. Unbeknown to Mavis her John is growing several cannabis plants in her glass house. While John is away Mavis feeds and waters the plants for him thinking they are tomato plants. Mavis is liable for possession of the plants.
Case Law
T or F
False
R v Strawbridge
Explanation:
It is not necessary for the Crown to establish knowledge on the part of the accused. In the absence of evidence to the contrary knowledge on her part will be presumed, but if there is some evidence that the accused honestly believed on reasonable grounds that her act was innocent, then she is entitled to be acquitted unless the jury is satisfied beyond reasonable doubt that this was not so.
In proving guilty knowledge for drug dealing what does KKI stand for?
The offender -
knew about the offence and
knew the substance involved was a controlled drug and
intended to commit the offence
Emma is a local meth cook. Police execute a SW and locate her in the lab wearing a mask and gloves. Also in the lab is meth making equipment along with a jug containing a two layered liquid, which ESR state contains liquid meth. She states she is finding a cure for OMICRON. Emma has completed the offence of meth manufacture.
Case Law
T or F
True
R v Rua
The offence is complete once the prohibited substance is created, whether or not it is in a usable form (Rua)
Matt is a local drug dealer who is stopped by Police. His bag is searched and located inside is 8 grams of cocaine in 1 gram bags, scales, cash and three cell phones. Outline the offence and elements that Matt is liable for?
Possession of a Controlled Drug (or Class A) for Supply.
S6(1)(f) MODA1975
Anyone in possession of
A Class A Controlled Drug
For the purposes of 6(1)(c) (or for the purpose of Supply)
Sarah is desperate for cash and as such has turned to dealing in MDMA (ecstasy). She comes into possession of 100 tablets of ecstasy. Her close friend Ivan is a man about town and is heading out for the night. To help him get his groove on he asks Sarah for 5 tablets. Sarah gives Ivan the 5 tablets on tick. The elements for this offence of Supply are?
A
Anyone who supplies, a Class A controlled drug, to any person
B
Anyone who sells, a Class B controlled drug, to any person
C
Anyone who supplies a Class B controlled drug, to any person
C
Anyone who supplies a Class B controlled drug, to any person
In relation to Offers to Supply, what are the four circumstances outlined in R v Brown.
offers to supply a drug that he has on hand
offers to supply a drug that will be procured at some future date
offers to supply a drug that he mistakenly believes he can supply
offers to supply a drug deceitfully, knowing he will not supply that drug
What is the difference between Supply Class C (s6 (1)(d)) and Sell Class C (s6(1)(e))
A
There is no difference
B
Age (1)(d) is u18 (1)(e) is over 18
C
One is supply the other is sell.
D
Both B and C are correct
D
Both B and C are correct
To enter and search a place under section 15 you must suspect that the item being searched for is in the place and believe that if you delay to obtain a search warrant the item will be C.A.D.D
T or F
False
False, you must BELEIVE that the item being searched for is in the place and believe that if you delay to obtain a search warrant the item will be C.A.D.D
Johnny stabs Jill in the chest and runs into a nearby house taking the knife used with him. Upon your arrival a witnesses tells you this. You make no approach to the house and Johnny is unaware of your presence.
In these circumstances would you be able to enter the house under section 15 to search for the knife?
A
Yes, because you believe the knife is in the house and it is evidential material to an offence punishable by more than 14 years imprisonment
B
Yes, because you believe evidential material to an offence punishable by more than 14 years imprisonment is in the house and believe that if you delay to get a search warrant the item will be C.A.D.D
C
No, because even though you believe the knife is in the house and it is evidential material to an offence punishable by more than 14 years imprisonment you would not have grounds to believe if you delay to get a search warrant the item will be C.A.D.D
C
No, because even though you believe the knife is in the house and it is evidential material to an offence punishable by more than 14 years imprisonment you would not have grounds to believe if you delay to get a search warrant the item will be C.A.D.D
Explanation:
There is no indication that if entry is delayed in order to obtain a search warrant, the evidential material will be destroyed, concealed, altered or damaged
Section 16 only applies to person(s) in a public place who are suspects of offences punishable by imprisonment of 14 years or more.
T or F
False – Section 16 applies to any person in a public place you believe has possession of evidential material relating to an offence punishable by 14 years or more.
Michael commits an aggravated robbery at a local dairy and steals $300.00 in cash. As he runs off he drops a $50 note on the footpath that is subsequently picked up by Louise.
A witness tells you this and you locate Louise a short distance away and she denies picking up the money.
Could you search Louise under section 16?
A
Yes, because she is in a public place and you believe she is in possession of evidential material relating to an offence punishable by 14 years or more
B
Yes, because she is in a public place and you suspect she is in possession of evidential material relating to an offence punishable by 14 years or more
C
No, because she is not a suspect of an offence punishable by 14 years or more
A
Yes, because she is in a public place and you BELIEVE she is in possession of evidential material relating to an offence punishable by 14 years or more
Explanation:
A constable may search a person without warrant in a public place if the constable has reasonable grounds to BELIEVE that the person is in possession of evidential material relating to an offence punishable by imprisonment for a term of 14 years or more
