Violence

Question 1

Intent v outcome
(Short Answer)

Answer 1

In subsection (1) the offender intents to cause GBH

In subsection (2) the offender intends only to injure the victim, although the actual outcome is a greater degree of harm than he/she anticipated.

Subsection (2) also allows for an alternative mens rea element involving “reckless disregard for the safety of others”.

Question 2

R v Collister

Answer 2

the offender’s actions and works before, during, and after the vents
the surrounding circumstances
the nature of the act itself

Question 3

Proving intent in serious assault cases
(4 Short Answer)
PEUWNDBD

Answer 3

*Prior threats
*Evidence of premeditation
*The use of a weapon
*Whether any weapon used was opportunistic or purposely brought
*The number of blows
*The degree of force used
*The body parts targeted by the offender (eg. the head)
*The degree of resistance or helplessness of the victim (eg. unconscious).

Question 4

R v Taisalika
(Short Answer)

Answer 4

The nature of the blow and the gash which it produced on the complainant’s head would point strongly to the presence of the necessary intent.

Taisalika argued unsuccessfully that he had been so intoxicated he could not remember the incident, therefore he could not have had the necessary intent. The Court held that loss of memory of past events is not the same as lack of intent at the time.

Question 5

DPP v Smith

Answer 5

“Bodily harm” needs no explanation and “grievous” means no more and no less than “really serious”.

Question 6

Psychiatric injury
(Multi)

Answer 6

“Bodily harm” in s188 includes really serious psychiatric injury identified as such by appropriate specialist evidence.

Question 7

Not limited to immediate harm
(Short Answer)

Answer 7

In affirming his conviction for “causing GBH with reckless disregard for the safety of others” the Court of Appeal held that s188 is not limited to immediate harmful consequences of the offender’s actions, such as external assault or injury from a blow of some kind.

Question 8

R v Waters

Answer 8

“A breaking of the skin would be commonly regarded as a characteristic of a wound. The breaking of the skin will be normally evidenced by a 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 cases where the bleeding which evidences the separation of tissues may be internal.”

Question 9

Maiming

Answer 9

“Depriving another of the use of such of his members as may render him the less able in fighting, either to defend himself or to annoy his adversary”

In practical terms, it will involve mutilating, crippling, or disabling a part of the body so as to deprive the victim of the use of a limb or of one of the senses.

Question 10

Disfigurement

Answer 10

To deform or deface; to mar or alter the figure or appearance of a person.

R v Rapana - the word disfigure covers not only permanent damage but also temporary damage.

Question 11

The Doctrine of Transferred Malice
(Short Answer)

Answer 11

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 stuck.

Question 13

Injure
(Multi)

Answer 13

To injure means to cause actual bodily harm.

Question 13

Cameron v R
(Short Answer)

Answer 13

Real possibility
Proscribed result
Circumstances existed
Having regard to that risk those actions were unreasonable.

Question 14

Both subsections (1) and (2) require proof of one of the specified intents:
(Short Answer)

Answer 14

*intent to commit or facilitate the commission of any imprisonable offence.
*intent to avoid the detection of himself or of any other person in the commission of any imprisonable offence
*intent to avoid the arrest or facilitate the flight of himself or of any other person upon the commission or attempted commission of any imprisonable offence.

Question 15

Two-fold test for intent - R v Tihi
(Short Answer)

Answer 15

it was held that in proving an offence against section 191, the prosecution must satisfy a ‘two-fold’ test for intent:
1. the defendant intended to facilitate the commission of an imprisonable offence (or one of the other intents specified in paras (a), (b) or (c), and
2. he or she intended to cause the specified harm, or was reckless as to that risk.

Question 16

R v Wati
(Short Answer)

Answer 16

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.

Question 17

Stupefies
(Multi)

Answer 17

*To ‘cause an effect on the mind or nervous system of a person,
*which really seriously interferes with that person’s mental or physical ability to act in any way which might hinder an intended crime’.

Question 18

Rendered incapable of resistance
(Multi)

Answer 18

It can be said that she was rendered incapable of resistance by violent means just as effectually as if she were physically incapable.

Question 19

Injurious substance or device
(Short Answer)

Answer 19

The term “injurious substance or device” 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.

Boiling water has been held to a ‘destructive’ substance in previous Court decisions.

Question 20

When offence is complete - explosive/injurious substance
(Multi)

Answer 20

*When an explosive or an injurious substance or device is sent, delivered, or put in place.

*However, the substance must have the capacity to explode or cause injury.

Question 21

Using firearm against law enforcement officer
(Short Answer)

Answer 21

Everyone is liable to imprisonment for a term not exceeding 10 years who

*uses any firearm in any manner whatever
*with intent to resist the lawful arrest or detention of himself or herself or of any other person.

Question 22

Acting in the course of duty
(Short Answer)

Answer 22

*However, an officer who is acting unlawfully,

eg. using excessive force during an arrest,
eg. interfering with a person’s liberty without legal justification,
eg. or trespassing on private property without authority,

*cannot be said to be ‘acting in the course of his or her duty’.

Question 23

Has with him
(Short Answer)

Answer 23

*The defendant not only had possession, in the sense that he or she knowingly had custody or control of a firearm, but also

*It was at the time available and at hand for him or her to use while committing the imprisonable offence.

Question 24

Nature of belief required
(Short Answer)

Answer 24

1. belief in a proprietary or possessory right in the property
2. the belief must be about rights to the property in relation to which the offence is alleged to have been committed.
3. the belief must be held at the time of the conduct alleged to constitute the offence.
4. the belief must be actually held by the defendant.

Question 25

R v Skivington
(Short Answer)

Answer 25

Larceny [or theft] is an element of robbery, and if the honest belief that a man has a claim of right is a defence to larceny, then it negatives one of the elements in the offence of robbery, without proof of which the full offence is not made out.

Question 26

R v Lapier
(Liability)

Answer 26

Robbery is complete the instant the property is taken, even if possession by the thief is only momentary.

Question 27

Extort
VCIE
(Multi)

Answer 27

To obtain by violence, coercion or intimidation or to extract forcibly’

Question 28

Immediately before or after
(Multi)

Answer 28

The term ‘immediately’ refers to the connection in time between the robbery and the infliction of GBH. Whether or not that connection amounts to ‘immediately’ is a matter of fact and degree to be considered in each case.

Question 29

Grievous bodily harm

Answer 29

DPP v Smith
Bodily harm needs no explanation and grievous means no more and no less than really serious.

Question 30

Being together with & physical proximity
(R v Joyce)

Answer 30

R v Joyce
The Crown must establish that at least two persons were physically present at the time the robbery was committed or the assault occurred”
JOINT ENTERPRISE

Question 31

R v Galey
(Multi)

Answer 31

“Being together’’ in the context of s235(b) involved “two or more persons having the common intention to use their combined force, either in any event or as circumstances might require, directly in the perpetration of the crime.

Question 32

Being armed with
(Multi)

Answer 32

*Carrying the item or
*has it available for immediate use as a weapon.

Question 33

Instrument

Answer 33

The term “instrument” is not defined by statute, but will include any item intended to be used as a weapon or to intimidate and overbear the victim’s will to resist.

Question 34

Blackmail (2)
(Short Answer)

Answer 34

Section 237 (2) Crimes Act 1961
Everyone 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 of effecting his or her purpose.

Question 35

Accusation vs Disclosure
(Multi)

Answer 35

Accusation will normally refer to an allegation that the person is guilty of criminal offending whether or not any formal charges have been filed.

Disclosure does not need to relate to criminal offending and will extend to revelation of information which could cause serious embarrassment or emotional distress. The disclosure does not need to relate to the person from whom the demand is made (R v Redman)

Question 36

Statutory defence
(Short Answer)

Answer 36

In R v Marshall the Court of Appeal stated that it is a defence to a charge of blackmail for the defendant to show they believed they were entitled to obtain the benefit or to cause the loss, and, objectively viewed, the marking of the threat was a reasonable and property means for obtaining the benefit or causing the loss. It will be for the jury to determine whether the means were reasonable and proper.

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 37

Demanding with intent to steal, etc
Section 239, Crimes Act 1961
(Multi)
MAADEE

Answer 37

(1) Everyone is liable to imprisonment for a term not exceeding 14 years whom 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.
(2) Everyone is liable to imprisonment for a term not exceeding 7 years who, with menaces or by any threat, demands any property from any persons with intent to steal it.

Question 38

Taking away vs detaining
(R v Crossan)
(Multi)

Answer 38

“Taking away” and “detaining” are two separate and distinct acts giving rise to two different offences, and the prosecution should specify which of the acts is being alleged. Where there is evidence of both taking away and detaining, two charges should be filed.

Question 39

Kidnapping
(Short Answer)

Answer 39

(a) with intent to hold him or her for ransom or to service: or
(b) with intent to cause him or her to be confined or imprisoned: or
(c) with intent to cause him or her to be sent or taken out of NZ.

Question 40

Abduction
(Short Answer)

Answer 40

(a) with intent to go through a form of marriage or civil union with P; or
(b) with intent to have sexual connection with P
(c) with intent to cause P to go through a form of marriage or civil union.

Question 41

Intent to hold for ransom
(Multi)

Answer 41

A “ransom” is a sum of money demanded or paid for the release of a person being held captive.

Question 42

Intent to hold for service
(Multi)

Answer 42

This provision relates to situations where the offender’s intent is to keep the victim as a servant or slave.

Question 43

Intent to cause to be imprisoned
(Multi)

Answer 43

*To “Imprison” a person means to put them in prison, or to confine them as if in prison.

*It has a narrower meaning than “confine” as discussed above, and may apply in situations where the victim is,

*for example, locked in a room or in the boot of a car.

Question 44

Abduction - what must be proved
(Short Answer)
RRKI

Answer 44

For a conviction under s210 (2) the Crown must prove that:
1. the defendant received a person under the age of 16 years;
2. the receiving was intentional;
3. the defendant knew that young person had been unlawfully taken or enticed away or detained by another from a parent, guardian or other person having lawful care or charge of the him or her of the possession of that young person; and
4. the defendant intended by reason of the receiving to deprive a parent, guardian or other person having lawful care or charge of him or her of the possession of that young person.

Question 45

R v Forrest and Forrest
(Short Answer)

Answer 45

The best evidence possible in the circumstances should be adduced by the prosecution in proof of [the victim’s] age”

Question 46

Migrant smuggling and people trafficking
(Multi)

Answer 46

Migrant smuggling involved a person who has freely consented to be brought into NZ as an illegal immigrant and is not subjected to coercion or deception.

People trafficking involves a person who is brought into NZ by means of coercion and/or deception.

Question 47

Investigative approach - people trafficking
(Short Answer)

Answer 47

Reactive investigation - victim led and often initiated by an approach to Police by the victim or another 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 traffickers, gather evidence and instigate proceedings against them.

Disruptive investigation - Approach 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 48

Offences you will need to know:

Answer 48

188(1) - Wounds with Intent to GBH
188(2) - Wounds with Reckless Disregard
191 - Agg wounding eg. tying up the victim, or assaulting the security guard
198(1)(a) - Discharging a Firearm with intent to GBH.
198A(1) - Uses any firearm against law enforcement officer
208(c) - Abduction
210(1) - Adduction of a young person under 16
234(1) - Robbery
235(c) - Aggravated Robbery
236(2)(b) - Assault with intent to rob.

Question 49

R v Pekepo

Answer 49

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.

Question 50

Using any firearm against law enforcement
(Short Answer)

Answer 50

10 years who uses any firearm in any manner whatever with intent to resist the lawful arrest or detection of himself or herself or of any other person.

Question 51

R v Hunt
(Doctrine of Transferred Malice)

Answer 51

In R v Hunt
The defendant, while breaking into another man s stables, was caught by the property owner and his servant. Hunt attempted to stab the property owner with a knife, but in the ensuing struggle he unintentionally inflicted a superficial cut to the servant s wrist.

He was found guilty of wounding the servant, as although the cut was slight and not in a vital part his intent had nevertheless been to cause serious harm (albeit to the property owner and not to the servant).

The Court highlighted that if there was an intent to do grievous bodily harm, it was immaterial whether grievous harm was done. The question is not what the wound is, but what wound was intended.

Question 52

R v Sturm
(Stupefies)

Answer 52

In R v Sturm
The defendant was convicted after administering alcohol, Ecstasy and other drugs to a number of male victims in order to dull their senses sufficiently to enable him to sexually violate them.

The Court in this matter held that to stupefy 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.

It further said that stupefies does not only describe a situation where a person is rendered senseless or unconscious but may also include circumstances where the administration of drugs has led to dis -inhibition and stimulated uncharacteristic behaviour.

Question 53

R v Kelt
(Possession)

Answer 53

The courts have indicated that “having with him a firearm” requires “a very close physical link and a degree of immediate control over the weapon by the man alleged to have the firearm with him”

Question 54

R v Harney
(Recklessness)

Answer 54

Both merely require that the defendant has recognised the risk the offence anticipates as being possible. The defendant does not need to consider the risk significant.

Question 55

R v Mwai
(Not limited to immediate harm)

Answer 55

The defendant faced multiple counts in relation to two women
who he infected with HIV, and several others whom he put at risk, through unprotected sex.

Expert medical evidence adduced at the time, that HIV follows “a steady relentless progression” leading to AIDS and then inevitably to death, was sufficient to establish that the defendant had caused grievous bodily harm.