Violence

Question 1

What can actual bodily harm include

Answer 1

Actual bodily harm can include psychiatric injury, if medical evidence confirms an identifiable clinical condition.

Question 2

Definition of recklessness

Answer 2

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”

Question 3

Definition of aggravated in relation to S191

Answer 3

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

Question 4

Definition of incapable of resistance by violent means

Answer 4

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.

Question 5

Definition of Has with him

Answer 5

Under this provision the offender must knowingly have the firearm with them – mere possession is insufficient.

Question 6

Definition of uses any firearm

Answer 6

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.

Question 7

What must be proved for possession of a firearm

Answer 7

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.

Question 8

What is the difference between CA1961 S188 (1) and S188 (2)?

Answer 8

The offenders intent. (1) is intent to cause GBH (2) is intent to cause injury or with reckless disregard for the safety of others

Question 9

Can a dog be a weapon

Answer 9

It has been held in both Canada and Australia that a dog may be a weapon.

Question 10

Blackmail act and section

Answer 10

Blackmail is an offence under s237 of the Crimes Act 1961.

Question 11

Definition of Threatens

Answer 11

The term ‘threaten, expressly or by implication’ , carries its ordinary meaning, which requires little more than to ‘make clear an intention’

Question 12

Define assault with intent to rob

Answer 12

Assault with intent to rob occurs when no property is taken but the offender has robbery as their intent.

Question 13

When is demanding with intent to steal compete?

Answer 13

Demanding with intent to steal is complete when a threat is made with the necessary intent.

Question 14

Blackmail definition

Answer 14

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.

Question 15

Blackmail defence

Answer 15

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.

Question 16

Definition of Benefit under Blackmail

Answer 16

In this section and in section 239, benefit means any benefit, pecuniary advantage, privilege, property, service, or valuable consideration.

Question 17

What you must prove For Blackmail (elements)

Answer 17

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.

Question 18

Does the threat have to be direct between suspect and victim in Blackmail?

Answer 18

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

Question 19

Is a person passing on the message of a threat liable for blackmail?

Answer 19

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.

Question 20

Communication of a threat

Answer 20

The threat made does not need to be received directly by the intended victim, provided it is conveyed to that victim

Question 21

Accusation defined

Answer 21

“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

Question 22

Disclosure defined

Answer 22

“Disclosure” does not need to relate to criminal offending and will extend to revelation of information which would cause serious embarrassment or emotional distress.

Question 23

Obtain defined

Answer 23

‘to obtain or retain for himself or herself or for any other person’.

Question 24

Benefit defined

Answer 24

‘Benefit’ does not require a financial element, but includes a privilege, service or benefit that has no ascertainable monetary value.

Question 25

Pecuniary advantage

Answer 25

Is an enhancement of a person’s financial position.

Question 26

Privilege defined

Answer 26

Means a special right or advantage and need not be a financial one.

Question 27

Valuable consideration defined

Answer 27

Means money or money’s worth.

Question 28

Property defined

Answer 28

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.

Question 29

Statutory defence to Blackmail

Answer 29

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.

Question 30

5 police investigation phases for Blackmail

Answer 30

1. initial report
2. mobilisation
3. consolidation
4. investigation and operational response (investigative interviewing of victim/witnesses, analysing communications data, evidence gathering, scene examination, identifying suspect(s))
5. reactive (interviewing suspect(s), seizing evidence, prosecuting offender(s))

Question 31

Execute defined

Answer 31

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.

Question 32

Define - Document capable of conferring a pecuniary advantage

Answer 32

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.

Question 33

Demand defined

Answer 33

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.

Question 34

Is consent of a young person a defence against sections 208,209 and 210?

Answer 34

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.

Question 35

Statutory defence Under section 210 (1) and (2)

Answer 35

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.

Question 36

Police response to People Trafficking

Answer 36

The responsibilities of the New Zealand Police are divided into three areas;
Prevention, Protection and Prosecution.

Question 37

Migrant smuggling defined

Answer 37

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.

Question 38

People trafficking

Answer 38

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.

Question 39

The differences between migration smuggling and people trafficking?

Answer 39

• 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.

Question 40

Reactive investigation in relation to Migrant Smuggling and People Trafficking

Answer 40

Victim led and often initiated by an approach to Police by the victim or another person acting on behalf of the victim.

Question 41

Proactive investigation in relation to Migrant Smuggling and People Trafficking

Answer 41

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.

Question 42

Disruptive investigation in relation to migrant smuggling and people trafficking

Answer 42

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.

Question 43

Do you need approval from the Attorney General to prosecute for offences under . sections 98C and 98D Crimes Act 1961?

Answer 43

Yes but you do not need approval to arrest and oppose bail.

Question 44

Demanding with intent to steal

Act, Section and Elements

Answer 44

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.

Question 45

Define The Doctrine of Transferred Malice

Answer 45

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.

Question 46

Psychiatric injury and Bodily harm

Answer 46

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.

Question 47

3 things to assist Proving Intent

Answer 47

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.

Question 48

Two specific types of Intent

Answer 48

An intent to commit a deliberate act and intent to get a specific outcome

Question 49

Violence - Define and Case Law

Answer 49

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.

Question 50

Threats of violence - Definition and CaseLaw

Answer 50

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.