Violence Flashcards
What can actual bodily harm include
Actual bodily harm can include psychiatric injury, if medical evidence confirms an identifiable clinical condition.
Definition of recklessness
Recklessness involves foresight of dangerous consequences that could well happen, together with an intention to continue the course of conduct regardless of the risk.”
“A deliberate and continued act knowing there is an unjustified risk”
Definition of aggravated in relation to S191
To ‘aggravate’ something is to make it worse. In the context of s191, the offending is aggravated by the fact that the offender caused harm to the victim in the process of committing some other imprisonable offence
Definition of incapable of resistance by violent means
A mere threat may not in itself be sufficient to constitute “violent means”, but when the person making the threat, for example, is brandishing a loaded revolver in circumstances that cause the victim to submit to his will in the belief that he will carry out his threat unless she does so, it can be said that she was rendered incapable of resistance by violent means just as effectually as if she were physically incapable.
Definition of Has with him
Under this provision the offender must knowingly have the firearm with them – mere possession is insufficient.
Definition of uses any firearm
Unlike s198A, the words ‘uses any firearm’ in section 198B are not accompanied by the phrase ‘in any manner whatever’ and may therefore have a narrower meaning. The term includes firing or presenting a firearm, or displaying it in a menacing manner, but may not extend to the use of a firearm as a club.
What must be proved for possession of a firearm
It is suggested that following R v Cox28 where both a physical and mental component must be proved to satisfy this element. The physical element requires the physical custody or control over the item in question and can be either ‘actual’ or ‘potential’.
The mental element is a combination of both knowledge that the person possesses the item in question, and an intention to possess the item.
What is the difference between CA1961 S188 (1) and S188 (2)?
The offenders intent. (1) is intent to cause GBH (2) is intent to cause injury or with reckless disregard for the safety of others
Can a dog be a weapon
It has been held in both Canada and Australia that a dog may be a weapon.
Blackmail act and section
Blackmail is an offence under s237 of the Crimes Act 1961.
Definition of Threatens
The term ‘threaten, expressly or by implication’ , carries its ordinary meaning, which requires little more than to ‘make clear an intention’
Define assault with intent to rob
Assault with intent to rob occurs when no property is taken but the offender has robbery as their intent.
When is demanding with intent to steal compete?
Demanding with intent to steal is complete when a threat is made with the necessary intent.
Blackmail definition
Blackmail, in general terms, is any communication that is intended to incite fear, or be interpreted as a threat in the mind of any reasonable person, that, if certain instructions or demands are not complied with, an act or omission (whether by words or action) will occur. Such act or omission would be to the prejudice of any person.
Blackmail defence
Every one who acts in the manner described in subsection (1) is guilty of blackmail, even though that person believes that he or she is entitled to the benefit or to cause the loss, unless the making of the threat is, in the circumstances, a reasonable and proper means for effecting his or her purpose.
Definition of Benefit under Blackmail
In this section and in section 239, benefit means any benefit, pecuniary advantage, privilege, property, service, or valuable consideration.
What you must prove For Blackmail (elements)
You must prove the identity of the suspect and that they
- threatened
- expressly or by implication to:
Make any accusation against any person (whether living or dead), or
Disclose something about any person (whether living or dead), or
cause serious damage to property, or
Endanger the safety of any person.
- with intended to cause the person to whom the threat is made to act in accordance with the will of the person making the threat, and
- obtain any benefit or to cause loss to any other person.
Does the threat have to be direct between suspect and victim in Blackmail?
No, The offence includes both where the suspect makes the threat themselves and where the suspect knowingly and intentionally passes the threat made by another on, with the intention of assisting the threat maker in achieving their purpose
Is a person passing on the message of a threat liable for blackmail?
No, It is not necessary that the person conveying the threat holds themself out as the person who might execute the threat.
However, a person serving only as a conduit for a threat will not commit an offence.
Communication of a threat
The threat made does not need to be received directly by the intended victim, provided it is conveyed to that victim
Accusation defined
“Accusation” will normally refer to an allegation that the person is guilty of criminal offending whether or not any formal charges have been filed.62 It is immaterial whether the substance of the accusation is true or false, and the accusation does not need to relate to the person from who the demand is made
Disclosure defined
“Disclosure” does not need to relate to criminal offending and will extend to revelation of information which would cause serious embarrassment or emotional distress.
Obtain defined
‘to obtain or retain for himself or herself or for any other person’.
Benefit defined
‘Benefit’ does not require a financial element, but includes a privilege, service or benefit that has no ascertainable monetary value.
Pecuniary advantage
Is an enhancement of a person’s financial position.
Privilege defined
Means a special right or advantage and need not be a financial one.
Valuable consideration defined
Means money or money’s worth.
Property defined
Property includes real and 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.
Statutory defence to Blackmail
it is a defence to a charge of blackmail for the defendant to show they believed they were entitlted to obtain the benefit or to cause the loss, and, objectively viewed, the making of the threat was a reasonable and proper means for obtaining the benefit or causing the loss. It will be for the jury to determine whether the means were reasonable and proper.70 Therefore, belief by the person making the threat that they are entitled to the benefit or to cause the loss is not in itself a defence to a charge under section 237(1), unless the threat is, in the circumstances, a reasonable and proper means for effecting his or her purpose.
5 police investigation phases for Blackmail
- initial report
- mobilisation
- consolidation
- investigation and operational response (investigative interviewing of victim/witnesses, analysing communications data, evidence gathering, scene examination, identifying suspect(s))
- reactive (interviewing suspect(s), seizing evidence, prosecuting offender(s))
Execute defined
To execute a document is normally to “do what the law requires to give validity to the document. It is not confined to the signing or doing something to the face of the document.” Entry of data in a computer program may amount to “execution” of a document.
Define - Document capable of conferring a pecuniary advantage
Document is defined in s217 of the Crimes Act, 1961. The Court has defined a document essentially as a thing which provides evidence or information or serves as a record. (R v Misic)
It can be said that a document is capable of conferring a pecuniary benefit if it could do so in certain circumstances, even if it those conditions are not likely to occur, and includes such things as; cheques, airline tickets, TAB tickets, completed bank withdrawal slip, insurance claim etc.
Demand defined
It is sufficient if there is a clear request, made firmly. It is not necessary that the demand be communicated to the person to whom it is directed; it is sufficient that the defendant said something that constituted such a demand to one person, with the intention that it be passed on to another person from whom the property was demanded.
Is consent of a young person a defence against sections 208,209 and 210?
Consent is not a defence to charges under ss208–210 when the person taken is under the age of 16 years: s209A Crimes Act 1961. For the purposes of ss208 and 209, a person under the age of 16 years cannot consent to being taken away or detained.
Statutory defence Under section 210 (1) and (2)
A person who claims in good faith a right to the possession of a young person under the age of 16 years cannot be convicted of an offence against section 209 or section 210 because he or she gets possession of the young person. When a defence under s210A arises, it lies with the prosecution to negate ‘claim of right’ beyond reasonable doubt. The question for the jury will not be whether the defendant was, in fact and law, entitled to the possession of the child or young person – this point being covered by the word “unlawfully” – but whether it is shown beyond reasonable doubt that the defendant did not believe in good faith that he or she was so entitled.
Police response to People Trafficking
The responsibilities of the New Zealand Police are divided into three areas;
Prevention, Protection and Prosecution.
Migrant smuggling defined
Migrant smuggling involves a person who has freely consented to be brought into New Zealand as an illegal immigrant and is not subjected to coercion or deception.
People trafficking
People trafficking involves a person who is brought into New Zealand by means of coercion and/or deception. People are often trafficked in order to exploit them in the destination country, e.g. as forced labour, for removal of their organs or most commonly, for sexual exploitation.
The differences between migration smuggling and people trafficking?
- consent
- the purpose of the travel or movement
- the relationship between the person moved and the people enabling the movement
- violence, intimidation or coercion
- liberty
- profit.
Reactive investigation in relation to Migrant Smuggling and People Trafficking
Victim led and often initiated by an approach to Police by the victim or another person acting on behalf of the victim.
Proactive investigation in relation to Migrant Smuggling and People Trafficking
Police led. A combination of standard investigation techniques supplemented by intelligence resources to identify and locate the traffickers, gather evidence and instigate proceedings against them.
Disruptive investigation in relation to migrant smuggling and people trafficking
Appropriate in circumstances where the level of risk to the victim demands an immediate response, and pro-active or reactive approaches are not practicable options.
Do you need approval from the Attorney General to prosecute for offences under . sections 98C and 98D Crimes Act 1961?
Yes but you do not need approval to arrest and oppose bail.
Demanding with intent to steal
Act, Section and Elements
Crimes 196
Section 239 (1)
- without claim of right
- by force or with any threat
- compels any person to execute, make, accept, endorse, alter, or destroy
- any document capable of conferring a pecuniary advantage with intent to obtain any benefit.
Define The Doctrine of Transferred Malice
It is not necessary that the person suffering the harm was the intended victim. Where the defendant mistakes the identity of the person injured, or where harm intended for one person is accidentally inflicted on another, he is still criminally responsible, under the Doctrine of Transferred Malice, despite the wrong target being struck.
Psychiatric injury and Bodily harm
In Owen v Residential Health Management Unit5 the Court highlighted that “bodily harm” may include psychiatric injury but does not include mere emotions such as fear, distress, panic, or a hysterical or nervous condition: It may be necessary that the “injury” should amount to an identifiable clinical condition. Expert evidence will be required before an issue of psychiatric injury arises: It may be that a charge under s188 can be justified where there has been relevant psychiatric injury but the victim is unaware of the assault. An example is R v Donaldson6 where the defendant performed indecent acts on the victim while he was unconscious. The victim had no recollection of the events but, once he learned of them, they had a profound psychological impact on him.
3 things to assist Proving Intent
Circumstantial evidence from which an offender’s intent may be inferred can include:
- the offender’s actions and words before, during and after the event
- the surrounding circumstances
- the nature of the act itself.
The onus is generally on the prosecution to prove an offender’s intent beyond reasonable doubt. While an offender’s admissions as to their intent is good evidence, it is good practice to support these with circumstantial evidence from which their intent can also be inferred.
Two specific types of Intent
An intent to commit a deliberate act and intent to get a specific outcome
Violence - Define and Case Law
Violence must involve more than a technical assault and does NOT require bodily harm to be inflicted.
Peneha v Police - It is sufficient that the defendants violent actions forcibly interfere with the person’s freedom and comfort, providing a marked and powerful response.
Threats of violence - Definition and CaseLaw
To make an intention clear to interfere with the victims health and comfort. Violence does not need to amount to bodily injury.
R v Broughton - Threats of violence can be playing on the mind of the victim at the time of handing over the property. Threats are usually made through words and conduct and influenced by surrounding circumstances which may cause fear.
