violence Flashcards
Define rendering incapable of resistance
The term violent means includes the application of force that physically incapacitate the victim, or in some circumstances the threats or violence.
What is the 2 fold test in TIHI
- The defendant intended to facilitate the commission of an imprisonable offence (or one of the other intents specified in paragraphs a, b or c) and
- He/she intended to cause thew specified harm, or was reckless as to that fact
Define stupefies and explain what happened in R v STRUM
To stupefies means to cause an effect on the mind or nervous system of a person, which really seriously interferes with that persons mental or physical ability to act in any way which might hinder an intended crime.
In R v STRUM, the defendant administered drugs to the victims to dull there senses and allow hims to sexually violate them. It was held that stupefies may also include circumstances where the administration of drugs has lead to dis-in-habitation and stimulated uncharacteristic behaviour
Explain the doctrine of transferred malice and R v HUNT
it is not necessary that the intended person suffering the harm was the intended victim. Where the defendant mistakes the identity of the person injured, or where the harm intended to one person is accidentally inflicted on another, he is criminally liable under the doctrine or transferred malice.
In R v HUNT, the defendant was caught while breaking into a stable by the owner and the owners servant. Hunt attempted to stab the owner with a knife, but instead, unintentionally cut the servant.
Define injurious substance and give an example
The term injurious substance or device covers a range of things capable of causing harm to a person, for example, a letter containing anthrax power that is mailed to a political target
What is wound under R v WATERS
a breaking of the skin would commonly regarded as a characteristic of a wound. The breaking of the skin will normally be evidence by the flow of blood and in its occurrence at the site of a blow or impact, the wound will more often than not be external. But there are those casess where the bleeding which evidences the separation of the tissue may be internal.
Can a charge under 198A stand up if a police constable was trespassing at the time?
No, as one of the legal elements of this offence is ‘acting in the course of his duty”. A constable who is trespassing without legal justification is doing so unlawfully, and therefore, can not be said to be acting in the course of duty as the definition only covers lawful acts.
Jim tells Billy to give him his phone, or else he will punch him in the head. Billy hands of the the phone and runs away. What is Jim’s liability?
Robbery
GBH is not limited to immediate harm R v MWAI
I R v MWAI, the defendant faced multiple charges in relations to infecting 2 young women with HIV through unprotected sex It was provided that HIV was a disease that lead to AIDS and eventually death which was sufficient to establish grievous bodily harm. The curt held that s188 is not limited to immediate harmful consequence of the offenders actions.
All that is required for the Actus reas is an act causing GBH. The link between cause and effect is a physical one, not one of time. Consequences that are delayed are consequences nerveless.
Explain R v TAISALIKA in relation to intoxication and intent
The nature of the blow and the gash which it produced on the complaints head would point strongly toward the presence of the necessary intent
The defendant argued that he had been so intoxicated he could not remember the incident, therefore could not have had the necessary intent. The court held that the loss of memory of the post events is not the same as lack of intent at the time,.
In relation to serious assault cases, list the circumstantial evidence that may assist in proving the offenders intent
prior threats
evidence of premeditation
the use of a weapon
whether the weapon as used was opportunistic or purposely brought
the number of blows
the degree of force used
the body parts targeted by the offender
the degree of resistance or helplessness of the victim
What is the difference between s188(1) and s188 (2)
section 188(1) involves the victim being wounded by the offender, where the offender intended to cause a wound (GBH)
section 188(2) involves the victim being wounded b y the offender, where the offender only intended to cause injury
both offences have the same outcome, but with different intentions of the offender
Define GBH
Grievous Bodily Harm can be simply defined as harm that s really serious
define Wounds
A wound involves the breaking of the skin and the flowing of blood, internally or externally.
Define Maims
Maiming involved mutilation, crippling or disabling a part of the body so as to deprive the victim of a use of a limb or one of the senses.
Define disfigure
To disfigure is to deface or deform, to mar or alter the appearance or figure of a person
R v Rapana and Murray
The word disfigures covers not only permanent damage but also temporary damage
R v Joyce - together with
The crown must establish that at least 2 persons were physically present at the time the robbery was committed or the assault occurred.
The term together with requires that 2 or more people are actually present and acting together in the commission of the robbery
What is an accusation?
an accusation will normally refer to an allegation that the person is guilty of a criminal offending, whether or not formal charges have been filed. It is immaterial if the accusation is true or false, and the accusation does not need to relate to the person from who the demand is made
explain R v Skivington
Larceny or theft it an element of robbery, and if honest belief that a man has claim of right is a defence to larceny, then is negates one of the elements in the offence of robbery, without proof of which the full offence is not made out.
This case law outlines the necessity of fulfilling all elements of theft for a charge of robbery. Because the defendant genuinely believed that he had claim of right to the money, the offence of theft could not be fully established, as as theft is an element of robbery, the offence or robbery could not be fully established.
Circumstantial evidence surrounding proof of intent
The offenders actions and words before during and after the event
The surrounding circumstances
The nature of the act itself
Statutory defence of Blackmail
The statutory defence of blackmail is for the defendant to show they believed they were entitled to obtain the benefit or cause the loss, an objectively viewed the making of the threat was reasonable and proper means fr obtaining the benefit or causing loss.
What are the intents of blackmail
Intent to cause the person whom the threat is made to act in accordance with the will of the person making the threat
Intent to obtain any benefit or case loss
A man tells an old lady to give him the pin number to her bank account or else he will tell her family not to have anything to do with her any more. What is the offence
Demands with intent to steal s239
R v Joyce
The crown must establish that at least 2 persons were physically present at the time the robbery was committed or the assault occurred.
R v Lapier
Robbery is complete the instant the property is taken, even if possession by the thief is only momentary
What are the factors that increase the charge from robbery to being an aggravated robbery
At the time of, immediately before or immediately after, caused GBH to any person.
Being together with any other person, robs any person
Being armed with any offensive weapon or instrument or anything appearing to be such a weapon robs any other person.
What was held in R v Marshall
The offence of blackmail 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.
The threat made does not need to be retrieved directly by the intended victim, provided it is conveyed to that victim.
R v Galey
being together in the context o s235(b) involves 2 or more persons having the common intention to use there combined force, either in any event or as circumstances may require, directly in the perpetration of the crime
A father takes a daughter who is 15, who consents to this happening. however the mother has court orders for her custody, is this an offence?
yes, it is immaterial that the child consents, there is a court order in place
What are the 3 intents for kidnapping
Intent to hold a person for ransom or to service
Intent to cause the person to be confined or imprisoned
Intent to cause the person to be sent out of NZ
R v Crossan - kidnapping
Taking away and detaining are 2 separate and distinct offences. The first consists of taking the victim away, the 2nd of detaining her.
The 1st offence was complete when the offender took the woman away against her will. Then having taken her away, he detained her against her will, and his conduct in containing her constituted a new and different offence
What is the statutory defence for abduction of a young person under 16?
A person who claims in good faith a right and possession of a young person under 16 can not be convicted of an offence against s209 or s210, because he or she gets possession of the young person
A Prosecution must prove beyond reasonable doubt that the defendant did not believe in good faith that she/she was so entitled.
R v Camerosn
Recklessness is established if the defendant recognise that there was a real possibility that..
his/her action would bring about the proscribed result and that the proscribed circumstance existed.
Having regard to that fact, those actions were unreasonable.
A man is threatening to give his neighbour the bash unless he puts $1000 in his letterbox, what offence has been committed?
Robbery, or demands if its actually done.
Ingredients for demanding with intent to steal.
Without claim of right
By force or with any threat
Compels any perosn to execute, make, accept, endorse, alter or destroy
Any document capable of conferring a pecuinary advantage
With intent to obtain any benifit
What are the 3 main investigative approach options for people trafficking and migrant smuggling?
Reactive investigation - victim lead and often initiate by an approach to police by the victim or other person acting on behalf of the victim.
Proactive investigation - Police led. A combination of standard investigation techniques supplemented by intelligence resources to identify and locate the trafficker, gather evidence and instigate proceeding against them.
Disruptive Investigation - appropriate in circumstances where the risk to the victim demands an immediate response, and pro active or reactive approaches are not practical options
What is the difference between migrant smuggling and people trafficking?
Migrant smuggling involves a person who has freely consented to be brought into NZ as a eagle immigrant
People trafficking involves a person who is brought into NZ by means of coercion and/or deception.
What is the difference between wounding and GBH
Wounds, maims, disfigures refers to the type of injury casused - GBH refers to the degree or serriousness of the injruy
eg. stabbing a person once to the arm would cause a wound (injury), but if stabbed 5 times in the chest GBH would be more appropriate due to the serriouness of the wound caused
wounding with intent (1) and (2) relate to actions that result in wounding/maim/disfigure or GBH-what is the difference between (1) and (2)?
the difference between the two is the offenders intent
discharging a FA to do GBH sets out 3 offences, what are those offences
Discharges and FA/air gun/similar weapon at any person
Sends/delivers to any person, or puts in any place, any explosive or injurous substance or device
Sets fire to any property
Peneha v Police (violence)
It is sufficient that the actions of the defedant forcibly interfer with personal freedom or amount to forcible power or violent action/motion which tend to cause bodily injury or discomfort.
Maihi (accompany)
with accompany, there must be a nexus or link between the stealing and the threat or violence, however the act of stealing and the threat of violence does not have to be contemporaneous.
R v Wati (flight) x 2
- The specified harm is caused to enable the offender/s to more easily make their escape or prevent capture.
- there must be proof of the commission or attempted comission of a crime was either by the person commiting the assault or the by the perosn whos arrest/flight he intends to avoind/facilitate.
R v Tihi
in addition to one of the specified intents outlines in para a, b or c, it must be shown that the offender either meant to cause the harm or foresaw that the actions taken were liley to espose other to the risk.
waaka (intent)
intent may be formed at any time during the taking away. if the takingh away commences and there is not intent to have intercourse, but during the taking away that intent is formed, then this is sufficient for the purpose of the section.
R v Swain (FA)
to deliberatly and purposefuly remove a shotgun out of a bag after being called upon by police, this amounts to a used of a firearm under section 198A
Definition of detain
& the relevant case law Pryce
doing somehting involving the constraint or restraint of the detained person.
Pryce- The active component meaning to keep someone in confinement of custody. does not includerharbouring.
definition of Takes away & the case law Wellard
To take away means to physically move a person form one place to another
Wellard - The essesnce of kidnapping is the deprivation of liberty coupled with ther carrying away from the place the victim want to be.
R v Mohi
the offence is complete when ther has been a period of detenton or taking away accompanied by the necessay intent. it is not necessary the the intent was not carried out
Define Fraud
deceiving the vicitm in to agreeing to a proposition, by misrepresenting the facts or intentions
define duress
Actual or implied threat of force to the vicm tor another person, inlsue preassure or coercion.
R v M (consent)
the crown must prove the the accused intended to take way or detain the complainat and that he/she knew the victim was not consentinhg
define violence
wit violence there must be more than a minimal degree of force and more than a technical assault. There need not be bodily injury inflicted.
define accompanied by
it must be shown thaat the defendant not only had an intent to steal at the time the violence was used but that the violence or threats of violence were used to extort the property
define threats of violence
an interntion to inflict violence unless the propeerty is handed over, may be direct ior veild converyed by words, actions or both.
extort
prevent
overcome
extort - obtain by violence, coercion or intimidation
Prevent - keep from happening
Overcome - defeat, prevail over
definition of Theft
Dishonestly
WCOR
Takes any property
With intent to deprive the owner permanantly of that property or any interest in that property.
define assault
an intention to appply or attempt to apply force to another AND
thae application or attempted appication of force, direcly or indirectly OR
the threat to apply or attempt to apply where the victim beleives he is capble of carrying the intent out.
what must be proven for a charge of abduction of person under 16?
TUI WKD
TOOK - the defenant took , enticed or detained a person un 16
INTENTIONAL - the taking away,entice, detention was intentional
UNLAWFUL - the taking, enticing,detention was unlawful
WAS FROM - the taking, enticieng, detention was from a person who had lawful care
KNEW - the def knew the other person had lawful care
DONE 2 DEPRIVE, was done with the intention to deprive the parent etc. ofd the possession
TIUWD
