VIOLENCE Flashcards
What are the elements of section 188(1)?
Everyone
With intent to cause grievous bodily harm
To anyone
Wounds, maims, disfigures or causes grievous bodily harm
to any person
What are the ingredients of section 188(2)?
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
What are the penalties for sections 188 1 and 2?
14 years (1)
7 years (2)
What is the difference between 188 (1) and (2)?
The offenders intent,
What are the two specific types of intention?
An intention to commit the act and an intention to get a specific outcome
What is R v Collister?
Circumstantial evidence where an offenders intent can be inferred includes:
Offenders actions before during and after
Surrounding circumstances
Nature of the act itself
What are some examples of proving intent in serious assault cases?
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)
What was held in R v taisalika in relation to intoxication?
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
What was held in R v taisalika?
The nature of the blow and the hash it produced strongly points to the presence of the necessary intent
DPP v Smith
Bodily harm needs no explanation and grievous means no more than really serious
What is psychiatric injury?
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
What is an example of non immediate harm?
Giving someone HIV through unprotected sex if medical evidence adduce that
What is R v Waters?
A wound is a breaking of the skin and a flowing of blood either internally or externally
Define maiming
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
Define disfigure
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
R v rapana and murray
The word disfigure not only covers permanent damage but also temporary
Define the doctrine of transfered malice
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
Define injury
To cause actual bodily harm
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 transitory or trifling
Define recklessness
Consciously and deliberately taking an unjustifiable risk
Cameron v R
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
What is section 191?
What is the difference between 191 (1) and (2)?
1 and 2 require one of the specified intents in a b or c the difference is the outcome. 2 is only injury
In R V Tihi what is the two fold test?
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
Under section 191 what do you have to prove?
You have to prove the person had the intent to commit the imprisonable offence, they do not actually have to commit the offence intended
R v Wati
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
Define stupefy?
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
Define render unconscious
The offenders actions must cause the victim to lose consciousness. This can be achieved in any way
Define violent means
Includes the application of force that physically incapacitates a person such as tying the victims hands and feet. Can include threats of violence
Define rendered incapable of resistance
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
What is section 192?
What is the definition of assault
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
What is section 198?
Under section 198(1)(a) what must prosecution prove?
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
Define injurious substance
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.
Under section 198 (1)(a) and 198(1)(b) when are the offences complete?
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
Define 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
Section 198A?
Define uses in any manner whatever?
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
R v swain
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
What is the definition of a constable?
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
Acting in the course of duty
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
Fisher v R
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
Section 198B
Under section 198B what are the ways a firearm can be used?
Includes firing, presenting or displaying in a menacing manner, but may not extend to the use of a firearm as a club
Explain “has with him”
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
Define pistol
Firearm designed or capable of being held and fired with one hand and includes any firearm that is less than 762mm in length
Define restricted weapon
Any weapon declared by the governor-general, by order in council made under section 4 of this act, the be a restricted weapon
What are four examples of restricted weapons?
Machine carbines or guns
Rocket launchers and ammunition therefore
Mines of an explosive nature
Mortars of military kinds and ammunition therefore
What is section 66 of the arms act 1983
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
What was held in R v Crossan in relation to section 191?
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
Section 234, Robbery
Define theft
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
What are four things to consider when establishing claim of right?
-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
R v skivington
If claim of right exists then robbery cannot be completed. Genuine belief they are entitled to the property
R v lapier
Robbery is complete the instant the property is taken, even if the offender only has momentary possession
R v cox
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
R v Maihi
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
Definition of violence in relation to robbery?
More than a minimal degree of force and more than technical assault but need not involve the Infliction of bodily injury
Peneha v Police
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
What considerations can be taken when it comes to threats of violence?
Physiques
Appearance
Demeanour
What was said and done
The manner and setting in which the incident took place
Define threat of violence
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
What must prosecution prove in relation to threats of violence?
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)
Define used to extort the property stolen
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
Define extort
To obtain by violence, coercion or intimidation or to extract forcibly. Overbearing the will of the victim
Section 235 (a)(b)(c)
What was held in R v Wells?
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
Define ‘being together with’
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
R v Joyce
The crown must establish that at least two people were physically present at the time the robbery was committed or the assault occured
R v Galey
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
Define Being armed with
Carrying the item of has it available for immediate use as a weapon
Offensive weapon
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.
Define ‘any thing appearing to be such’
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)
Section 236
Assault definition
Section 237 (blackmail)
When investigating blackmail what must you prove?
Give two examples of threats made in blackmail?
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
What are two exceptions to threats made during blackmail
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)
Communication of the threat
The threat made does not need to be received directly by the intended victim as long as it is conveyed to that victim
Define accusation in relation to blackmail
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
Define disclosure in relation to blackmail
Does not need to relate to criminal offending and extends to information which would cause serious embarrassment or emotional distress
Define obtain
To obtain or retain for themselves or any other person
Define pecuniary advantage
Economic advantage, financial gain
Define valuable consideration
Money or money’s worth
What is the statutory defence for blackmail
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
Section 239
Define execute in relation to demanding with intent to steal
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”
What are some examples of a document capable of obtaining a pecuniary advantage
Cheque, airline ticket, TAB ticket, insurance claim
Define menaces
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
Define blackmail in general terms
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
Section 208
Define unlawfully
Without lawful justification, authority or excuse. Prosecution must prove beyond reasonable doubt
Define taking away
Physically removed from one place to another
R v wellard
Kidnapping is the deprivation of liberty with a carrying away from the place where the victim wants to be
R v Crossan (taking away/detaining)
Taking away and detaining are two separate offences
Define detaining
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
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
Define consent
Conscious and voluntary agreement to something desires or proposed by another
R v cox (consent)
Consent must be full, voluntary, free and informed, freely and voluntarily given by a person in a position to form a rational judgment
Give an example of consent obtained by duress
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
Mohi
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
R v waaka
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
Section 209
What does the Crown need to prove for a charge under section 209
R v M
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
Intent to cause to be confined
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
Intent to cause to be imprisoned
Put them in prison, confine them as if in prison e.g. locked in a room or in the boot of a cat
Difference between sent out of NZ and taken out of nz
Sent: on their own as a result of threat or duress
Taken: accompanied by someone
Section 210
R v Forrest and Forrest
The best evidence possibly in the circumstances should be adduced by the prosecution in proof of the victims age
Define entice
Tempt, persuade, or attract by arousing hope or desire
For an offence under sections 208-210 can a person under the age of 16 consent?
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
Define knowing
Knowing or correctly believing, you can believe something mistakenly but you cannot know something that is false
Under section 210, what happens if the defendant believe the person is 16 years or over?
No
What is section 127
There is no presumption of law that a person is incapable of sexual connection because of their age
What is the statutory defence of good faith?
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.
Section 98D
Section 98D
What is the difference between migrant smuggling and people trafficking?
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
What are the three types of investigation approaches for people trafficking
Reactive - victim lead
Proactive - police led
Disruptive - level of risk demands immediate response. Proactive and reactive approaches are not practicable
Do you need approval from the attorney general to prosecute for offences under sections 98C and 98D?
Yes but you do not need approval to arrest and oppose bail
