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VIOLENCE Flashcards

1
Q

What are the elements of section 188(1)?

A

Everyone
With intent to cause grievous bodily harm
To anyone
Wounds, maims, disfigures or causes grievous bodily harm
to any person

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2
Q

What are the ingredients of section 188(2)?

A

Everyone with intent to injure anyone OR
with reckless disregard to the safety of others
Wounds, maims, disfigures or causes grievous bodily harm
To any person

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3
Q

What are the penalties for sections 188 1 and 2?

A

14 years (1)
7 years (2)

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4
Q

What is the difference between 188 (1) and (2)?

A

The offenders intent,

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5
Q

What are the two specific types of intention?

A

An intention to commit the act and an intention to get a specific outcome

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6
Q

What is R v Collister?

A

Circumstantial evidence where an offenders intent can be inferred includes:
Offenders actions before during and after
Surrounding circumstances
Nature of the act itself

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7
Q

What are some examples of proving intent in serious assault cases?

A

Prior threats
Use of a weapon
Number of blows
If they brought the weapon with them or used one of opportunity
Body parts targeted
Degree of resistance from the victim (unconscious)

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8
Q

What was held in R v taisalika in relation to intoxication?

A

The defendant stated because he was so intoxicated that he could not remember the incident therefore he could not have had the necessary intent at the time of the assault. Memory loss of past events is not the same as not having the necessary intent

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9
Q

What was held in R v taisalika?

A

The nature of the blow and the hash it produced strongly points to the presence of the necessary intent

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10
Q

DPP v Smith

A

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

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11
Q

What is psychiatric injury?

A

Bodily harm includes psychiatric Injury but does not include mere emotions such as fear, distress, panic or hysterical or nervous condition.
The injury should be an identifiable clinical condition where expert evidence will be given by a psychiatrist or other expert

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12
Q

What is an example of non immediate harm?

A

Giving someone HIV through unprotected sex if medical evidence adduce that

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13
Q

What is R v Waters?

A

A wound is a breaking of the skin and a flowing of blood either internally or externally

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14
Q

Define maiming

A

Mutilating, crippling, or disabling a part of the body so as to deprive the victim of the use of a limb or one of the senses.
There needs to be some degree of permanence according to legal commentaries

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15
Q

Define disfigure

A

To deform or deface, to mar or alter the figure or appearance of a person.
An external injury that detracts from the personal appearance of the victim, it does not need to be permanent

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16
Q

R v rapana and murray

A

The word disfigure not only covers permanent damage but also temporary

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17
Q

Define the doctrine of transfered malice

A

When the defendant has mistaken identity of the person injured or where they intended to cause harm to one person but accidentally inflicted it on another

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18
Q

Define injury

A

To cause actual bodily harm

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19
Q

R v Donovan

A

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

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20
Q

Define recklessness

A

Consciously and deliberately taking an unjustifiable risk

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21
Q

Cameron v R

A

Recklessness is established if;
The defendant recognized that there was a real possibility that his or her actions would bring about the proscribed result and/or
That the prescribed circumstances existed and having regard that risk those actions were unreasonable

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22
Q

What is section 191?

A
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23
Q

What is the difference between 191 (1) and (2)?

A

1 and 2 require one of the specified intents in a b or c the difference is the outcome. 2 is only injury

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24
Q

In R V Tihi what is the two fold test?

A

The defendant intended to facilitate the commission of an imprisonable offence or one of the things specified in (a)(b)(c) AND
They intended to cause the specified harm or was reckless as to that risk

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25
Q

Under section 191 what do you have to prove?

A

You have to prove the person had the intent to commit the imprisonable offence, they do not actually have to commit the offence intended

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26
Q

R v Wati

A

There must be proof of the commission or attempted commission of a crime either by the person committing the assault or by the person whose arrest or flight he intends to avoid or facilitate

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27
Q

Define stupefy?

A

To cause an affect on the mind or nervous system of a person, which really seriously interferes with that person’s mental or physical ability to act in a way which might hinder the interest crime
It also includes drugs that lead to dis-inhibilitation and stimulated uncharacteristic behaviour

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28
Q

Define render unconscious

A

The offenders actions must cause the victim to lose consciousness. This can be achieved in any way

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29
Q

Define violent means

A

Includes the application of force that physically incapacitates a person such as tying the victims hands and feet. Can include threats of violence

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30
Q

Define rendered incapable of resistance

A

A mere threat may not be sufficient to constitute violent means. In R V Crossan the defendant was brandishing a loaded revolver in circumstances that caused the victim to submit to his will. The victim was rendered incapable

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31
Q

What is section 192?

A
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32
Q

What is the definition of assault

A

Apply or attempt to apply force to the person of another or directly or indirectly apply or attempt to apply force to the person of another or
Threaten to apply for in the circumstances where the victim believes the offender will be able to carry out the threat

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33
Q

What is section 198?

A
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34
Q

Under section 198(1)(a) what must prosecution prove?

A

That the defendant intended to shoot THAT person
R v Pekepo - A reckless discharge of a firearm in the general direction of a passer-by who happens to be hit is not sufficient proof. An intention to shoot that person must be established

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35
Q

Define injurious substance

A

Covers a range of things capable of causing harm to a person for example a letter containing anthrax powder that is mailed to a political target.

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36
Q

Under section 198 (1)(a) and 198(1)(b) when are the offences complete?

A

198(1)(a) - complete when the firearm is actually discharged at a person
198(1)(b) - when the explosive or injurious substance is sent delivered or put in place, it does not have to actually explode or cause injury but must be capable of it

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37
Q

Define property

A

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

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38
Q

Section 198A?

A
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39
Q

Define uses in any manner whatever?

A

Doesn’t have to be fired can just be used..includes being used as a club, removed from a bag and telling the constable “don’t be stupid”
Possession alone does not count as use

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40
Q

R v swain

A

The deliberately or purposely remove a sawn off shotgun from a bag after being confronted by or called upon by a police constable amounts to use of that firearm within the meaning of section 198A

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41
Q

What is the definition of a constable?

A

Holds the office of constable under policing act 2008 or police act 1958 AND
includes a constable who holds any level of position with in NZP

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42
Q

Acting in the course of duty

A

Includes every lawful act a constable does while on duty and may include acts where circumstances create a professional obligation for a constable to exercise those powers while off duty
Things like trespassing, using excessive force and interfering with a persons liberty unlawfully cannot be included in a lawful duty

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43
Q

Fisher v R

A

To establish a charge under 198A(2) the crown must prove the accused knew someone was attempting to arrest or detain him because otherwise the element of mens Rea of intending to resist lawful arrest or detention cannot be established

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44
Q

Section 198B

A
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45
Q

Under section 198B what are the ways a firearm can be used?

A

Includes firing, presenting or displaying in a menacing manner, but may not extend to the use of a firearm as a club

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46
Q

Explain “has with him”

A

Mere possession is insufficient
Must have possession, custody or control of the firearm and that it was available and at hand for them to use while committing the imprisonable offence

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47
Q

Define pistol

A

Firearm designed or capable of being held and fired with one hand and includes any firearm that is less than 762mm in length

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48
Q

Define restricted weapon

A

Any weapon declared by the governor-general, by order in council made under section 4 of this act, the be a restricted weapon

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49
Q

What are four examples of restricted weapons?

A

Machine carbines or guns
Rocket launchers and ammunition therefore
Mines of an explosive nature
Mortars of military kinds and ammunition therefore

50
Q

What is section 66 of the arms act 1983

A

Occupier or driver of vehicle is deemed to be in possession of the firearm or restricted weapon found in the place or vehicle unless they can prove otherwise

51
Q

What was held in R v Crossan in relation to section 191?

A

Incapable of resistance includes powerlessness of will as well as physical incapacity. The term violent means is not limited to physical violence and may include threats of violence depending on the circumstance

52
Q

Section 234, Robbery

A
53
Q

Define theft

A

Dishonestly -no express or implied consent by a person authorised to give it
Without claim of right - belief at the time in a right to the property
Takes
Any property
With intent to permanently deprive the owner

54
Q

What are four things to consider when establishing claim of right?

A

-belief in a proprietary or possessory right in property
-belief must be about rights to the property in relation to the offence committed
-belief held at the time of the offence
-belief actually held by the defendant

55
Q

R v skivington

A

If claim of right exists then robbery cannot be completed. Genuine belief they are entitled to the property

56
Q

R v lapier

A

Robbery is complete the instant the property is taken, even if the offender only has momentary possession

57
Q

R v cox

A

Possession is two elements, mental and physical;
Mental possession is knowledge that you possess the item and an intention to possess the item
Physical possession requires physical custody or control over the item and is actual or potential possession

58
Q

R v Maihi

A

Accompanied by means there must be a nexus link between the act of stealing and the threat of violence. However these do not need to be contemporaneous

59
Q

Definition of violence in relation to robbery?

A

More than a minimal degree of force and more than technical assault but need not involve the Infliction of bodily injury

60
Q

Peneha v Police

A

It’s 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

61
Q

What considerations can be taken when it comes to threats of violence?

A

Physiques
Appearance
Demeanour
What was said and done
The manner and setting in which the incident took place

62
Q

Define threat of violence

A

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 or a combination of both

63
Q

What must prosecution prove in relation to threats of violence?

A

It is the conduct of the defendant that is relevant rather than the presence or absence of fear in the victim. It should not be measured on the strength of the nerves of the victim (r v pacholko)

64
Q

Define used to extort the property stolen

A

Prosecution must prove that the violence or threats of violence was to extort the property stolen or to prevent or overcome resistance to it being stolen.
If the theft is complete and the offender then uses violence to overcome someone interefering that would not be robbery

65
Q

Define extort

A

To obtain by violence, coercion or intimidation or to extract forcibly. Overbearing the will of the victim

66
Q

Section 235 (a)(b)(c)

A
67
Q

What was held in R v Wells?

A

That there is no requirement that the harm be inflicted on the victim of the robbery, thus Infliction of harm to a person seeking to prevent the escape of the offender would come within the section

68
Q

Define ‘being together with’

A

In committing the robbery there was a joint enterprise of two or more person’s who were physically present during the robbery.
Each person must share an intent to steal using their collective force and play an active role in the robbery

69
Q

R v Joyce

A

The crown must establish that at least two people were physically present at the time the robbery was committed or the assault occured

70
Q

R v Galey

A

Being together in the context of 235(b) involves two or more person’s having a common intention to use their combined force either in any event or as circumstances might require, directly in the perpetration of the crime

71
Q

Define Being armed with

A

Carrying the item of has it available for immediate use as a weapon

72
Q

Offensive weapon

A

Defined under section 202A CA 1961. Any article made or altered for use for causing bodily injury or intended by the person having it with him for such use.

73
Q

Define ‘any thing appearing to be such’

A

The object appeared to be an offensive weapon or instrument to the victim AND
the defendant intended or was at least reckless as to the possibility that it would be perceived as a weapon.
A ‘thing’ does not include part of a person’s body (R v Bentham)

74
Q

Section 236

A
75
Q

Assault definition

A
76
Q

Section 237 (blackmail)

A
77
Q

When investigating blackmail what must you prove?

A
78
Q

Give two examples of threats made in blackmail?

A

Suspect makes the threat
Suspect knowingly and intentionally passes on a threat made by another with the intention of assisting the threat maker in achieving their goal

79
Q

What are two exceptions to threats made during blackmail

A

The person making the threat does not have to be the person who carries out the threat
A person serving only as a conduit for a threat will not commit an offence
(If you pass on a threat you have to have the intention to help the other person carryout the threat)

80
Q

Communication of the threat

A

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

81
Q

Define accusation in relation to blackmail

A

An allegation that the person is guilty of criminal offending whether or not they have been charged. It does not matter if they allegation is true or false. The allegation does not need to relate to the person making the accusation

82
Q

Define disclosure in relation to blackmail

A

Does not need to relate to criminal offending and extends to information which would cause serious embarrassment or emotional distress

83
Q

Define obtain

A

To obtain or retain for themselves or any other person

84
Q

Define pecuniary advantage

A

Economic advantage, financial gain

85
Q

Define valuable consideration

A

Money or money’s worth

86
Q

What is the statutory defence for blackmail

A

Section 237(2) provides the defence to the charge of blackmail.
In R v marshall stated that there is a defence to the charge of blackmail if the defendant can show they believed they were entitled to obtain the benefit or cause the loss AND
objectively viewed the making of the threat was reasonable and proper means for obtaining the benefit or to cause the loss. It’s up to the jury to decide the threat is in the circumstances a reasonable and proper means for effecting his or her purpose

87
Q

Section 239

A
88
Q

Define execute in relation to demanding with intent to steal

A

To do what the law requires to give validity to the document. You do not have to do something to the face of the document. Entry of data in a computer programme may amount to “execution”

89
Q

What are some examples of a document capable of obtaining a pecuniary advantage

A

Cheque, airline ticket, TAB ticket, insurance claim

90
Q

Define menaces

A

The same as threats basically the words conducted convey a threat of something detrimental or unpleasant happening to the person or third party that the threat is made

91
Q

Define blackmail in general terms

A

Any communication that is intended to incite fear or to be interpreted as a threat in the mind of any reasonable person, that if certain demands or instructions are not complied with an act or omission will occur. Such act or omission would be to the prejudice of any person

92
Q

Section 208

A
93
Q

Define unlawfully

A

Without lawful justification, authority or excuse. Prosecution must prove beyond reasonable doubt

94
Q

Define taking away

A

Physically removed from one place to another

95
Q

R v wellard

A

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

96
Q

R v Crossan (taking away/detaining)

A

Taking away and detaining are two separate offences

97
Q

Define detaining

A

Detaining is an action ve concept. It involves doing something to impose a constraint or restraint on the person detained. There is no time period

98
Q

R v Pryce

A

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

99
Q

Define consent

A

Conscious and voluntary agreement to something desires or proposed by another

100
Q

R v cox (consent)

A

Consent must be full, voluntary, free and informed, freely and voluntarily given by a person in a position to form a rational judgment

101
Q

Give an example of consent obtained by duress

A

Duress can arise from the actual or implied threat of force to the victim or another person.
The threats or pressure must destroy the reality of consent and overbear the will of the individual

102
Q

Mohi

A

The offence is complete once there has been a period of detention or a taking accompanied by the necessary intent, regardless of whether the intent was carried out

103
Q

R v waaka

A

Intent may be formed at any time during the taking away. If taking away commences without the intent to have intercourse, but that intent is formed during the taking away then that is sufficient for the purposes of the section

104
Q

Section 209

A
105
Q

What does the Crown need to prove for a charge under section 209

A
106
Q

R v M

A

The crown must prove that the accused intended to take away or detain the complainant and that they knew that the complainant was not consenting

107
Q

Intent to cause to be confined

A

Confining includes restricting their movements to within a geographical area, but also has a wider meaning that includes curtailing their activity and exercising control and influence over them

108
Q

Intent to cause to be imprisoned

A

Put them in prison, confine them as if in prison e.g. locked in a room or in the boot of a cat

109
Q

Difference between sent out of NZ and taken out of nz

A

Sent: on their own as a result of threat or duress
Taken: accompanied by someone

110
Q

Section 210

A
111
Q

R v Forrest and Forrest

A

The best evidence possibly in the circumstances should be adduced by the prosecution in proof of the victims age

112
Q

Define entice

A

Tempt, persuade, or attract by arousing hope or desire

113
Q

For an offence under sections 208-210 can a person under the age of 16 consent?

A

No, subsection (3)(a) provides that it doesn’t matter that the child consents or even instigates the departure, although a person takes a child only if his or her conduct is an effective cause of it

114
Q

Define knowing

A

Knowing or correctly believing, you can believe something mistakenly but you cannot know something that is false

115
Q

Under section 210, what happens if the defendant believe the person is 16 years or over?

A

No

116
Q

What is section 127

A

There is no presumption of law that a person is incapable of sexual connection because of their age

117
Q

What is the statutory defence of good faith?

A

A person that claims good faith to a right of possession of the young person cannot be convicted of an offence under 209 and 210.

118
Q

Section 98D

A
119
Q

Section 98D

A
120
Q

What is the difference between migrant smuggling and people trafficking?

A

Migrant smuggling involved a person who is freely consenting to be brought into NZ as an illegal immigrant
People trafficking involves people who are brought into NZ by means of coercion and/or deception. People are trafficked to exploit them

121
Q

What are the three types of investigation approaches for people trafficking

A

Reactive - victim lead
Proactive - police led
Disruptive - level of risk demands immediate response. Proactive and reactive approaches are not practicable

122
Q

Do you need approval from the attorney general to prosecute for offences under sections 98C and 98D?

A

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

CIB (6 decks)

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