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DDP > Sum Notes 1 > Flashcards

Sum Notes 1 Flashcards

1
Q

Liability for Rape:

A

Sexual Violation by Rape
Crimes Act 1961, Section 128 (1) (a)
20 years imprisonment

  1. A Person
  2. Rapes
  3. Another Person
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2
Q

Definition of a person

A

Gender neutral. Generally accepted by judicial notice or proved by circumstantial evidence.

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3
Q

Definition of rape

A

Has sexual connection with person B, effected by the penetration of person B’s genitalia by Person A’s penis;

Without person B’s consent to the connection AND

Without believing on reasonable grounds that person B consents to that connection.

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4
Q

Definition of sexual connection

A

(a) Connection effected by the introduction into the genitalia or anus of one person, otherwise than for genuine medical purposes, of -

  • a part of the body of another person; or
  • an object held or manipulated by another person; or

(b) Connection between the mouth and tongue of one person and a part of another person’s genitalia or anus; or

the continuation of connection of a kind described in paragraph (a) or (b)

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5
Q

Definition of genitalia

A

Includes a surgically constructed or reconstructed organ analogous to a naturally occurring male or female genitalia (whether the person concerned is male, female, or of indeterminate sex).

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6
Q

Definition of a penis

A

Includes a surgically constructed or reconstructed organ analogous to a naturally occurring penis (whether the person concerned is male, female, or of indeterminate sex).

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7
Q

How much penetration is required and how can you prove penetration?

A

Introduction of the penis to the slightest degree is enough to effect a connection.

1) The complainants evidence.
2) Medical examination including injuries and DNA.
3) The defendants admissions.

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8
Q

How can you prove intent?

A

The offender’s actions and words before, during and after the event.

The surrounding circumstances.

The nature of the act itself.

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9
Q

What is the three step reasonableness test in regards to consent?

A

Subjective 1: What was the complainant thinking at the time, was she consenting?

Subjective 2: If she wasn’t consenting did he believe she was consenting? What did the offender believe at the time?

Objective: What would a reasonable person have believed if placed in the same position as the defendant?

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10
Q

Under Section 134A(1) what is the defence to a charge of sexual conduct with a young person under 16 years?

A

1) Before the time of the act concerned, he or she took reasonable steps to establish the young person was over 16 years, and
2) at the time of the act concerned, he or she believed on reasonable grounds that the young person was aged 16 years or over, and
3) the young person consented.

(before act, at the time of, consent)

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11
Q

What is the case law regarding genitalia?

A

R v KOROHEKE.

The genitalia comprise the reproductive organs, interior and exterior… they include the vulva and the labia, both interior and exterior, at the opening of the vagina.

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12
Q

What is the case law regarding consent?

A

R v COX

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

(FVFI)

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13
Q

What is the case law regarding the objective test?

A

R v GUTUAMA

Under the objective test the Crown must prove that “no reasonable person in the accused’s shoes could have thought that the complainant was consenting”.

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14
Q

What is the case law regarding proving age?

A

R v FORREST and FORREST

In practice proving age generally involves producing the complainant’s birth certificate in conjunction with independent evidence that identifies the complainant as the person named in the certificate.

“The best evidence possible in the circumstances should be adduced bu the prosecution in proof of the victim’s age”.

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15
Q

What is the case law regarding intent (attempts)

A

R v HARPUR

The court may have regard to the conduct viewed cumulatively up to the point when the conduct in question stops… the defendant’s conduct may be considered in its entirety. (not as individual acts)

Considering who much remains to be done… is always relevant, though not determinative.

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16
Q

What is the case law regarding an indecent act?

A

R v COURT

Indecency means conduct that right-thinking people would find an affront to the sexual modesty of the complainant.

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17
Q

What is the case law regarding indecent assault?

A

R v LEESON

The definition of ‘indecent assault’ is an assault accompanied with circumstances of indecency.

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18
Q

What are some investigative procedures that could be carried out initially for a victim of rape?

A

Ensure victims safety.
Obtain scoping interview.
Preserve clothing, noting marks, tears etc.
Wrap victim in clean sheet.
Ensure no cross-contamination with offender.
Advice on toileting (not wiping etc).
No drinks, food or smokes.
Organise medsac examination.
Identify potential witnesses.
Identify location of rape - CCTV, evidence at scene

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19
Q

Liability for kidnapping:

A

Kidnapping
Crimes Act 1961, Section 209 (1) (a), (b) or (c)
14 years imprisonment

  1. Unlawfully
  2. Takes away OR Detains
  3. A Person
  4. Without his or her consent OR
    With his or her consent obtained by fraud or duress
  5. With intent to:
    Hold him or her for ransom or service OR
    Cause him or her to be imprisoned or confined OR
    Cause him or her to be sent or taken out of NZ
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20
Q

What is the case law regarding ‘Takes away’?

A

R v WELLARD

Taking away is the deprivation of liberty coupled with a carrying away from the place where the victim wants to be.

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21
Q

What is the case law regarding ‘Detains’?

A

R v PRYCE

Detaining is an active concept meaning to keep in confinement or custody. This is to be contrasted to the passive concept of ‘harbouring’ or mere failure to hand over.

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22
Q

What is the case law regarding consent?

A

R v COX

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

(FVFI)

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23
Q

Definition of duress?

A

Consent obtained by actual or implied threat of force to the victim or another person.

Can include other forms of pressure of coercion.

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24
Q

What is the case law regarding intent (kidnapping)?

A

R v MOHI

The offence is committed at the time of the taking away, so long as there is at that moment the necessary intent.

It has never been regarded as necessary that the Crown should show the intent was carried out.

(intent to, shown by…)

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25
Q

With regards to rape, what are matters which do not constitute consent?

A

Not protesting or offering physical resistance to use of force.
Application/threat/fear of force to self or other.
Asleep or unconscious.
So affected by alcohol/drugs they cannot consent.
So affected by mental/physical impairment.
Mistaken ID.
Mistaken as to nature and quality of the act.

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26
Q

For a charge of incest, what must be proven?

A

The accused had knowledge of the relationship

sibling, half-sibling, parent-child, grandparent-grandchild

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27
Q

What is the definition of unlawful?

A

Without lawful justification, authority or excuse.

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28
Q

Liability for Wounding with intent to cause GBH:

A

Wounding with Intent to Cause GBH
Crimes Act 1961, Section 188 (1)
14 years imprisonment

  1. With intent to cause GBH
    2) To anyone
    3) Wounds OR
    Maims OR
    Disfigures OR
    Causes GBH
    4) Any Person
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29
Q

How can you prove intent for serious assault?

A
  • Prior threats.
  • Evidence of premeditation.
  • The use of a weapon.
  • Whether weapon was opportunistic or purposely
    brought along.
  • Number of blows.
  • Degree of force used.
  • Body parts targeted (head etc)
  • Degree of resistance or helplessness of victim
    (unconscious etc).
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30
Q

What is the case law regarding intent (assault)?

A

R v TAISALIKA

The nature of the blow and the gash to the head which it produced on the complainant’s head would point strongly to the presence of the necessary intent.

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31
Q

What is the definition of ‘recklessness’?

A

The conscious and deliberate taking of an unjustified risk.

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32
Q

What is the case law regarding recklessness?

A

R v HARNEY

Recklessness means the conscious and deliberate taken of an unjustified risk. In NZ it involves proof that the consequence complained of could well happen, together with an intention to continue the course of conduct regardless of risk.

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33
Q

What does ‘transferred malice’ mean?

A

It is not necessary that the person suffering the injury is the intended target.

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34
Q

What is the definition of maiming?

A

The mutilating, crippling or disabling a part of the body so as to deprive the victim of the use of a limb or of one of the senses.

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35
Q

What is the definition of disfigures?

A

Disfigure means to deform or deface; To mar or alter the figure or appearance of a person.

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36
Q

What is the difference between a wound and GBH?

A

Wound describes the type of injury.

GBH refers to the degree of seriousness of the injury.

37
Q

What is the case law regarding a wound?

A

R v WATERS

A wound is the breaking of the skin and the flowing of blood, either external or internal.

38
Q

What is the case law regarding disfigures?

A

R v RAPANA and MURRAY

The word disfigure covers not only permanent damage but also temporary damage.

39
Q

What is the definition of GBH?

A

Harm that is really serious.

40
Q

What is the case law regarding GBH?

A

DPP v SMITH

‘Bodily harm’ needs no explanation and ‘grievous’ means no more and no less than ‘really serious’

41
Q

What is the definition of an injury?

A

To cause actual bodily harm.

42
Q

What is the case law regarding an injury?

A

R v DONOVAN

‘Bodily harm’ includes any hurt or injury calculated to interfere with the health or comfort of the victim. It need not be permanent, but must be more than merely transitory and trifling.

43
Q

Liability for aggravated wounding:

A

Aggravated Wounding
Crimes Act 1961, Section 191 (1) (a), (b) or (c)
14 years imprisonment

1) With intent to:
a) commit or facilitate the commission of any
imprisonable offence.
b) avoid the detection of himself or of any other
person in the commission of any imprisonable
offence.
c) avoid arrest or facilitate the flight of himself or of
any other person upon the commission or
attempted commission of any imprisonable offence

2) Wounds any person OR
     Maims any person OR
     Disfigures any person OR
     Causes GBH to any person OR
     Stupefies any person OR
     Renders any person unconscious OR
     By any violent means renders any person incapable 
         of resistance.
44
Q

What three elements are required for an attempt offence?

A

1) Intent (means rea) - to commit offence.
2) act (actus reus) - that they did, or omitted to do,
something to achieve that end.
3) proximity - that their act or omission was sufficiently
close.

45
Q

What is the definition of ‘Actus Reus’?

A

The commission of a guilty act.

46
Q

What is the definition of ‘Mens Rea’?

A

Presence of a guilty mind.

47
Q

What are the two types of intent in an offence?

A
  • Intention to commit an unlawful act.

- Intention to get a specific result.

48
Q

Search and Surviellence Act 2012.

Define Section 14 (2):

A

Emergency warrantless power to enter a place or vehicle:

RTGS there is risk to the life or safety of any person that requires an emergency response.

49
Q

Search and Surviellence Act 2012.

Define Section 16:

A

Searching people in public place without warrant for evidential material relating to 14yr offences.

RGTB: Person is in possession of EM relating to a 14yr offence.

Power: Search a person without warrant in public place

50
Q

Search and Surviellence Act 2012.

What does Section 110 allow?

A

Seize anything that is the subject of the search or may be lawfully seized.

51
Q

Search and Surviellence Act 2012.

Define Section 48 (2) (b):

A

Surveillance device warrant need not be obtained for use of SD in some situations of emergency or urgency.

(2) (b)
(i) : Suspect that one or more of the circumstances set out in S14(2) exist, and

(ii): RGTB that the use of the SD is necessary to prevent the offending from being committed or continuing or avert the emergency.

52
Q

Search and Surviellence Act 2012.

Define Section 15:

A

Entry without warrant to find and avoid loss of evidential material relating to 14yr offences.

RGTS: 14yr offence has been, is being or is about to be committed.

RGTB:
EM relating to the offence is at that place, AND
If entry is delayed in order to obtain SW, the EM will be CADD.

Power:
Enter place without warrant.
Search the place.

Can also search any vehicles at the place.

53
Q

Liability for Robbery:

A

Robbery
Crimes Act 1961, Section 234 (1)
10 years imprisonment

1) Theft

2) Accompanied by violence OR
Threats of violence

3) To any person OR property

4) Used to extort the property stolen OR
Prevent or overcome resistance to its being stolen.

54
Q

Liability for Aggravated Robbery - GBH:

A

Aggravted Robbery
Crimes Act 1961, Section 235 (a)
14 years imprisonment

1) Robs any person

2) And at the time of OR
Immediately before OR
Immediately after the robbery

3) Causes GBH to any person.

55
Q

Liability for Aggravated Robbery - Together with:

A

Aggravted Robbery
Crimes Act 1961, Section 235 (b)
14 years imprisonment

1) Being together with any person OR persons
2) Robs
3) Any person

56
Q

Liability for Aggravated Robbery - Weapon:

A

Aggravted Robbery
Crimes Act 1961, Section 235 (c)
14 years imprisonment

1) Being armed with any offensive weapon OR
Instrument OR
Anything appearing to be such weapon or instrument

2) Robs
3) Any person

57
Q

Definition of theft:

A

Dishonestly

And without claim of right

Takes any property with intent to deprive the owner permanently of that property or any interest in the property.

58
Q

What is the definition of Offensive weapon?

A

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

59
Q

What is the definition of threat?

A

A threat is generally a direct or veiled warning that violence will be used if the victim does not submit to the robber’s demands.

60
Q

What is the case law regarding taking of property?

A

R v LAPIER

Robbery is complete the instant the property is taken, even if possession by the thief is only momentarily.

61
Q

What is the case law regarding possession?

A

R v COX

Possession involves two elements - Physical & Mental.

Physical is the actual or potential physical custody and control.

Mental is the combination of knowledge and intention, Knowledge in the sense of awareness by the accused that the substance is in their possession and an intention to exercise possession.

62
Q

What is the case law regarding violence?

A

PENEHA v Police

It is sufficient that the actions of the defendant forcibly interfere with personal freedom or amount to forcible powerful or violent action or motion producing a very marked or powerful effect tending to cause bodily injury or discomfort.

63
Q

What is the case law regarding accompanied?

A

R v MAIHI

There must be a nexus (connection or link) between the act of stealing and threat of violence. Both must be present, however they do not have to be contemporaneous.

64
Q

What is the case law regarding threats?

A

R v BROUGHTON

A threat of violence is the manifestation of an intention to inflict violence unless the money or property be handed over. The threat may be direct or veiled. It may be conveyed by words or conduct, of a combination of both.

65
Q

What is the Definition of extort?

A

To obtain by coercion or intimidation.

66
Q

What is the case law regarding Physical Proximity?

A

R v JOYCE

The Crown must establish that at least two persons were physically present at the time the robbery was committed or the assault occurred.

(Taking an active role in the robbery)

67
Q

What is the case law regarding Joint Enterprise?

A

R v GALEY

Two or more persons having the common intention to use their combined force, either in any event or as circumstances might require, directly in the perpetration of the crime.

68
Q

Liability for Arson (Danger to life)?

A

Arson
Crimes Act 1961, Section 267 (1) (a)
14 years imprisonment

1) Intentionally OR
Recklessly

2) Damages by fire OR
Damages by means of explosive

3) Any property

4) If he or she knows OR
Ought to know

That danger to life is likely to ensue.

69
Q

Liability for Arson (No interest)?

A

Arson
Crimes Act 1961, Section 267 (1) (b)
14 years imprisonment

1) Intentionally OR
Recklessly

2) And without claim of right

3) Damages by fire OR
Damages by means of explosive

4) Any immovable property OR
Any vehicle OR
Any ship OR
Any aircraft

5) In which that person has no interest.

70
Q

What is the definition of intent?

A

The must be an intention to commit the act and secondly an intention to get a specific result.

71
Q

What is the definition of a deliberate act?

A

The act or omission is done deliberately. It must be more than involuntary or accidental.

72
Q

What is the definition of recklessness?

A

Acting recklessly involves consciously and deliberately taking an unjustifiable risk.

73
Q

What is the definition of ‘Claim of Right’?

A

A belief at the time of the act of a right to possess or own the property in question.

Belief may be based on ignorance or mistake of fact or law.

74
Q

What is the definition of ‘Damages by Fire’?

A

Fire often involves burning and charring but also includes melting, blistering of paint and significant smoke damage.

75
Q

What is the definition of immovable property?

A

Property that is not intended to be moved. Refers to buildings, land and things growing on land, such as forests.

76
Q

What is the definition of a vehicle?

A

A contrivance equipped with wheels on which it moves or is moved.

77
Q

What is the definition of ‘No Interest’?

A

No financial or ownership interest in the property.

78
Q

What is the case law regarding intent (implied)?

A

R V COLLISTER

Intent can implied from conduct and circumstances.

79
Q

What is the case law regarding recklessness?

A

R V HARNEY

Involves actual foresight by the accused of dangerous consequences that could well happen together with an intention to continue the course of conduct regardless of the risk.

80
Q

What is the case law regarding Damages by fire?

A

R v ARCHER

Property may be damaged if it suffers permanent or temporary physical harm or permanent or temporary impairment of value or usefulness.

81
Q

What are the requirements for ‘accompanied by violence’ that the prosecution must prove?

A

A connection between the violence/threats and the stealing of the property.

The defendant had an intent to steal at the time the violence/threats were used.

The violence/threats were used to extort the property or preventing/overcoming resistance to it being stolen.

82
Q

What is the definition of knowledge?

A

SIMESTER & BROOKBANKS

Knowing or correctly believing. The belief must be a correct one, where the belief is wrong a person cannot know something.

83
Q

What is the definition of Danger to Life?

A

Human life, and the danger must be to the life of someone other than the defendant.

84
Q

What is the definition of Obtain?

A

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

85
Q

What is the definition of Benefit?

A

Any benefit, pecuniary advantage, privilege, property, service or valuable consideration.

86
Q

What is the case law regarding Cause Loss?

A

R v MORLEY

Loss is assessed by the extent to which the complainants position prior to the offence has been diminished or impaired.

87
Q

What is the definition of Property?

A

Includes and real or personal property and any estate or interest in any real or personal property, money, electricity and any debt, anything in action, and any other right or interest.

88
Q

What must be present for attempted arson (S268)?

A

Intend to commit the offence

Take a real and substantial step towards achieving that aim (act sufficiently proximate to full offence)

89
Q

Liability for Arson (obtain benefit)?

A

Arson
Crimes Act 1961, Section 267 (1) (c)
14 years imprisonment

1) Intentionally

2) Damages by fire OR
Damages by means of explosive

4) Any immovable property OR
Any vehicle OR
Any ship OR
Any aircraft

5) With intent to obtain any benefit OR
With intent to cause loss to any other person.

DDP (6 decks)

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