violence Flashcards
Ingredients: s.188 offences
Wounding with Intent. s.188(1) 14 years
With intent to cause GBH to any person
wounds, maims, disfigures, causes GBH
Any person
Wounding with intent to injure s.188(2) 7 years
With intent to injure OR
With reckless disregard for the safety of others
Wounds, Maims, disfigures, causes GBH
To any person.
Ingredients: s,189 offences
Injuring with intent to cause GBH s.189(1) 10 years
With intent to cause GBH to any person
Injures
Any person
Injuring with intent s.189(2) 5 years
With intent to injure any person OR
With reckless disregard for the safety of others
Injures any person.
Ingredients Robbery and agg robbery offences
Robbery s.234 (1) 10 years
Theft
accompanied by violence OR threats of violence
To any person OR Property
Used to extort the property being stolen OR
prevent or overcome any resistance to its being stolen
s.235 14 years (a) Robs any person And at the time of OR immediately before OR Immediately after the robbery Causes GBH to any person.
(b)
Being together with any person or persons
Robs
Any person.
(c)
Being armed with any offensive weapon, instrument or anything appearing to be such an offensive weapon or instrument,
Robs
Any person.
ingredients Assault with intent to rob
236(1) 14 years
(a)
With intent to rob any person
Causes GBH to that person or any other person
(b)
With intent to Rob any person
Being armed with any offensive weapon, instrument or anything appearing to be such a offensive weapon o instrument.
Assaults that person or any other person
(c)
With intent to rob any person
Being together with any person or persons
Assaults that person or any other person.
S.236 (2) 7 Years
Assaults
any person
With intent to rob that person or any other person.
Ingredients: Agg wounding or Injuring
s.191 (1) Agg Wounding 14 years
(a) With intent to commit or facilitate the commission of any imprisonable offence:
(b) With intent to avoid the detection of himself or another in the commission of any imprisonable offence:
(c) With intent to avoid the arrest of facilitate flight of himself or another upon the commission or attempted commission of any imprisonable offence:
Wounds, maims, disfigures, causes GBH, stupifys, renders unconscious or by any violent means renders any person incapable of resistance.
(2) Injures any person
Ingredients: Discharge Firearm with Intent
s.198 (1) 14 years
(a)
With intent to do GBH
To any person
Discharges any firearm, air gun or similar weapon
At any person
s.198(2) 7 years
(a)
With intent to injure any person OR with reckless disregard for the safety of others
Discharges any firearm, air gun or similar weapon
At any person
Ingredients; Doing a dangerous act with intent
s.198(1) 14 years (b) with intent to cause GBH to any person Sends, delivers or puts in any place Any explosive or injurious substance or device.
s.198(2) 7 years
(b)
With intent to injure any person OR with reckless disregard for the safety of others
Sends, delivers or puts in any place
Any explosive or injurious substance or device.
198(1) 14 years
(c)
With intent to cause GBH to any person
Sets fire to any property
s.198(2) 7 Years
(c)
With intent to injure any person OR with reckless disregard for the safety of others
Sets fire to any property
Ingredients; Using a firearm against a LEO
s.198A (1) 14 years
Any person
Uses a firearm in any manner whatever
Against a PO, CO, TO acting in the course of their duty knowing that person or being reckless whether or not that person is a PO, CO or TO so acting.
s.198A(2) 10 years
Any person
Uses a firearm in any manner whatever
With intent to resist lawful arrest or detention of himself or another
Ingredients; Commission of an Imprisonable Offence with a firearm
s.198B 10 years
(a)
A person
Commits an imprisonable offence
Using a firearm
(b)
A person
commits an imprisonable offence
Has any firearm with him or her in circumstances that show a prima facie intention to use that firearm in connection with the imprisonable offence
Ingredients: Blackmail
s.237(1) 14 years
Any person
Threatens expressly or by implication
to make an accusation against any person whether living or dead OR
To disclose anything about any person OR
To cause serious damage to any property OR
Endanger the life of any person
With intent to cause the person to whom the threat is made to act in accordance with the will of the person making the threat AND
to obtain any benefit OR
Cause loss to any person
Ingredients; Demands with Intent to steal
s.239(1) 14 years Without claim of Right And By Force or any threat Compels Any Person To execute, make, accept or endorse, alter or destroy any documentation capable of conferring a pecuniary advantage With intent to obtain any benefit
(2) 7 Years With menaces or by any threat Demands any property From any person With intent to steal it
Ingredients: Abduction
s.208 14 years
Unlawfully y fraud or duress
Takes away or detains
A person
Without his or her consent or consent obtained by fraud or duress
(a) with intent to marry him or her
(b) with intent to have sexual connection with him or her
(c) with intent to cause him or her to marry or have sexual connection with some other person
Ingredients: Kidnapping
s.209 14 years
Unlawfully
Takes away or detains
A person
Without their consent or consent obtained by fraud or duress
(a) with intent to hold him for ransom or service
(b) with intent to cause him to be confined or imprisoned
(c) With intent to cause him or her to be sent or taken out of NZ
Ingredients: Abduction of a young person and receiving a young person
s.210 (1) 7 years
With intent to deprive a parent or guardian or other person having the lawful care or charge of a young person of possession of a young person
Unlawfully takes OR entices way OR obtains possession of a young person
s.210 (2) 7 Years
Receives a Young Person
Knowing that he or she has been unlawfully taken or enticed away or obtained
With intent to deprive a parent or guardian or other person with the lawful care or charge o that young person of possession o that young person.
What is the difference between s.188 (1) and (2) and s.189 (1) and (2)
the diference between 188 and 189 are that the intents are the same and outcomes different.
The differences between the subsections 188(1) and 188(2) are that the outcomes are the same but the intents are different.
Define “criminal intent”
in a criminal law context there are two specific types of intent firstly an intent to commit the act and secondly and intent to get a specific result
What are examples of circumstantial evidence from which an offenders intent can be proven
offenders actions before during and after the event
surrounding circumstances
nature of the act itself
What are 9 factors of circumstantial evidence that will assist in proving intent in serious assault offences
- prior threats
- evidence of premeditation
- use of a weapon
- whether a weapon was purposefully bought to the scene or opportunistic
- the number of blows delivered
- the degree of force used
- the body parts targeted (eg head)
- the degree of resistance offered or helplessness of the victim (eg unconcious)
*
*
Define R v Taisalika and its relevance
The court has held that lack of memory of the event due to intoxication is not the same as lack of intent
The nature of the blow and the wound that it produced on the complainants head would point strongly to the presence of the necessary intent.
Define R v HUNT and its relevance
if the intent was to do GBH it is immaterial whether GBH was done, the question is not what the wound was but what was intended.
defendant was found guilty of s.188(1) after attempting to stab a person, missing and causing a wound to an unintended victim.
Define DPP V SMITH and its relevance
bodily harm needs no explanation and grievous means no more an no less than really serious.
gbh simply means harm that is really serious, it need not be permanent or life threatening.
Discuss Bodily harm in relation to a psychiatric injury
Bodily harm may include psychiatric injury but it is necessary that it amount to a clinically identifiable injury and expert evidence will be required to attest to that fact.
Discuss R v MWAI in relation to bodily injury
R V MWAI
the defendant was charged was infecting the victim with HIV through unprotected sex. (s.188(2) reckless disregard)
harm is not limited to the immediate harmfull consequences of the action.
Define a wound and the relevant case law
a wound includes the breaking of the skin and the flow of blood at its site either internal or externally
R v WATERS
a breaking of skin would be commonly regarded as characteristic of a wound. the breaking of the skin will be normally evidenced by a flow of blood in its occurrence at the site of impact,the wound will more often than not be external but there may be some cases in which the bleeding which evidences the separation of the tissues may be internal.
Deine maiming
in practical terms will include mutilating, crippling or disabling a part of the body so to deprive the victim of a use of a limb or one of the senses.
it will require some degree of permanence.
define disfigurement and Define R v RAPANA and MURRAY
to disfigure means to deform or deface, to mar or alter the appearance of a person.
does not need to be permanent.
R v RAPANA and MURRAY (tattoes on the skin that faded by trial)
the word disfigures covers not only permanent damage but temporary damage as well
explain the doctrine of transfered malice and give an example
it is not necessary that the victim suffering the injury was the intended victim.
mistaken identity
harm accidentally inflicted on a person
define injury and the relevant case law?
to injure means to cause actual bodily harm
Rv DONOVAN
bodily harm includes any hurt or injury calculated to interfere with the health and comfort of the victim, it need not be permanent but must no doubt be more than merely transitory or trifling
can include a psychiatric injury but it must be a clinically identifiable conditions.
mere emotions such as fear or panic will not suffice.
Define reckless and explain the two fold test
acting recklessly involves consciously and deliberately taking an unjustified risk.
it must be proved that the defendant was aware of the risk (subjective test) and that they proceeded regardless and that it was unreasonable for him to do so in the circumstances known to him at the time(objective test)
while it is necessary the defendant foresaw the risk of injury it is not necessary that they recognised the extent of injury that might result.
define r v TIHI and explain the two fold test for agg wounding or injuring
R v TIHI
“in addition to the specified intents in sub sections a, b an c it must be proven that the defendant meant to cause the specified harm or that they forsaw that the actions undertaken by them were likely to expose others to the risk of suffering it.”
In R v Tihi17 it was held that in proving an offence against section 191, the prosecution must satisfy a ‘two-fold’ test for intent:
- 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
- He or she intended to cause the specified harm, or was reckless as to that risk.
what is the two fold test that must be proven for a charge under s.191
that the defendant intended one of the intents in sub section. a, b or c AND
that they intended to cause the specified harm OR that they were reckless as to that risk of exposing others to the harm.
explain R v WAITE in relation to s.191
there must be proof of the commission or attempted commission of an imprisonable offence by the person committing the assault or the person whose arrest or flight he is intending to avoid or facilitate.
the prosecution must prove an imprisonable offence was attempted or committed before the defendant can be convicted of an offence under s.191.
define stupefy
stupefy means to cause an effect on the mind or nervous system which really seriously interferes with the persons mental or physical ability to act in a way which may prevent or inhibit the intended crime.
includes a situation where the administration of drugs has led to a dis-inhibition or stimulated uncharacteristic behaviour.
define “by any violent means renders a person incapable of resistance” with case law
R V CROSSAN
violent means
application of force that physically incapacitates a person eg binding of hands.
R v CROSSAN
incapable of resistance includes a powerlessness of the will as well as a physical incapacity,
the term violent means is not limited to physical violence, and may include threats of violence depending on the circumstances.
in relation to s.198 discharging a firearm or doing a dangerous act with intent is it necessary to prove actual bodily harm
no the causing of bodily harm would fulfil liability under s.188 and 189.
it is not necessary to prove actual bodily harm occurred rather that the defendant did one of the acts and that was what was intended.
explain r v PEPEKO in relation to the discharge of a firearm
a reckless discharge of a firearm in the general direction of a passerby who happens to be hit is not sufficient proof, an intention to shoot that person must be established.
under s.198(1)(a) there must be an intention to cause GBH hence recklessness is insufficient, however for 198(2)(a0 recklessness is an element and hence it would suffice.
when are the offences of s.198 complete
when the firearm is discharged or when the explosive or injurious substance or device is sent, delivered or put in place.
However the substance must have the capacity to explode or cause injury.
eg a booby trap needing electricity and not connected does not have the capacity to cause injury.
define “sets fire to”
although fire damage will often involve burning or charring, it is not necessary that the property is actually set alight. melting, blistering of paint or significant smoke damage may be sufficient.
define injurious substance or device
the term injurious substance or device covers a rang of things capable causing harm to a person, eg a letter containing anthrax powder sent to a political target.
boiling water was also held to be an injurious substance.
in relation to s.198A explain “uses in any manner whatever”
possession in itself does not constitute a use, but when it is handled or manipulated in a manner that implies a threat it maybe be sufficient.
a use may include:
as a weapon, to discharge, to handle or manipulate in a manner that conveys a threat, as a club,
*it is not necessary that the firearm be presented.
explain r v swain in relation to useing a firearm against an LEO
r v SWAIN
to deliberately or purposefully remove a sawn off shotgun from a bag after being confronted by or called upon by a police constable amounts to a use under s.198A
define “acting in the course of their duty” in s.198A
“the term includes every lawful act a constable does while in duty and may include those acts done when the circumstances create a professional obligation for a constable to exercise policing duties while off duty.”
the defendant must know the victim is a police officer so acting or be reckless to those facts.
define “knowing”
knowing means knowing or correctly believing you may believe something wrongly but cant know something that is false.
define r v FISHER in respect of s.198A(2)
it is necessary in order to establish a charge under s.198A(2) for the crown to prove that the accused knew someone was attempting to arrest or detain them, because otherwise the element of mens rea of intending to resist lawful arrest or detention does not exist.
this offence does not require the act to be against an officer, it can include any person as long as the intent is present.
discuss “uses” in relation to committing an imprisonable offence with a firearm s.198B
includes to fire or present the firearm but does not extend to useing it as a weapon or a club.
discus “has with him” in relation to s.198B
mere possession is insufficient and there must be accompanying circumstances which show a prima-facie intention to use the firearm.
must know they have the firearm on them and that at the time it was available for use. 2 or more persons may be liable in relation to the singular firearm if each had a degree of control over it.
define pistol
pistol leans any firearm designed or adapted to be used with one hand and includes any firearm under 762mm in length.
explain s.66 Arms Act 1983
for the purposes of this act every person in occupation of any building, land or the driver of any vehicle, on which any firearm, airgun, imitation firearm, pistol, restricted weapon or explosive is found shall although not to the exclusion of the liability of any other person be deemed to be in possession of that firearm … unless he proves that it was not his property and that it was in the possession of another at the time.
define “claim of right”
“in relation to any act means a belief at the time of the act in a proprietary or possesory right in property to which the offence is alleged to have been committed whether or not that belief is based on ignorance, mistaken belief or any other enactment other that that in which the offence is alleged to have been committed.”
claim of right is a defence to robbery. the belief must be held at the time of the act, the belief must be held it is not necessary that it be correct or reasonable .
Define R v SKIVINGTON
larceny or theft is an element of robbery, and if an honest belief that a man has a claim of right is a defence to larceny that it negates one of the elements of robbery without which the full offence is not made out.
when is robbery complete? explain with case law
robbery is complete the moment the property is moved with the intention of stealing it.
R V lapier
robbery is complete the instant the property is taken even if possession by the thief is only momentarily.
define actual and potential possession and r v Cox
actual; the thing is in the persons physical custody or control
Potential; the person has the potential to have the thing in their possession eg; stored at an associates house or with an agent.
R v COX
possession involves two elements, the first the physical element is actual or potential physical custody or control, the second the mental element is a combination of knowledge and intention, knowledge in the sense of an awareness by the accused that the thing is in their possession and an intention to exercise control over it.
explain R v MAIHI in relation to “accompanied by” (robbery)
it is implicit in accompany that there must be a nexus or connection between the treat of violence and the stealing, both must be present however the term does not require that the act of stealing and the threat of violence be contemporeanouse.
the intention to steal must exist at the time the violence or threats are made.
IN relation to agg robbery and the level of violence used discuss PENEHA v Police
“it is sufficient that the actions of the defendant forcibly interfere with personal freedom and amount to a forcible powerful or violent motion producing a very marked effect tending to cause bodily injury or discomfort.”
the violence used must be more then a mere technical assault, but need not cause bodily injury.
define a threat of violence - robbery
“a threat is a 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 actions or a combination of both.”
the prosecution must prove the purpose o the threats or violence was to extort the property stolen or to prevent or overcome resistance to its being stolen.
Rv NEWELL - violence used against a security guard after the shoplifter had left the store did not amount to a robbery as the theft was already complete when the violence was sued.
in relation to Agg Robbery define “being together with” and R v JOYCE
“there must be proof that the defendant in committing the robbery was part of a joint enterprise of two or more persons who were physically present at the time of the robbery. “
each must have an intent to steal and take a active part in the robbery.
R v JOYCE
the crown must establish that at least two person were present at the time of the robbery was committed or the assault occurred.
does not extend to those acting as a lookout or merely giving encouragement.
define r v GALEY in relation to agg robbery and being together with
being together in the context of 235(b) involves “two or more persons having the combined intention to use their combined force either in the event or as circumstances might require directly in the perpetration of the crime.
define the term “being armed with” in relation to s.235(c)
the term being armed with means that the defendant is carrying the item or has it available to them for immediate use as a weapon.
Define offensive weapon
“means any article made or altered to be used to cause bodily injury or intended by the person having it with them for such a purpose. “
Define the term “instrument”
the term instrument is not defined by statue but will include ay item intended to be used as a weapon or to intimidate or overbear the victims will to resist.
Define “assault”
assault s.2 CA61
the act of applying or attempting to apply force to the person of another whether directly or indirectly or by threatening b any at or gesture to apply such force to the person of another if the person making the threat has or causes the other to believe on reasonable grounds that they have the present ability to effect their purpose. And to assault has a corresponding meaning.
Define “accusation in relation to blackmail s. 239
accusation
the word accusation will normally refer to an allegation that the defendant person is guilty or a criminal conduct.
it will not require that any formal charges have been filed against the person since clearly charges cannot be filed against a person who is deceased, nor that the accusation would be one that would involve proceedings before a judicial tribunal.
What must you prove for a charge of blackmail
identity of the person making the accusation and that threatened either expressly or be implication to:
make an accusation against a person whether living or dead OR
to disclose something about a person whether living or dead OR
to seriously damage property OR
to endanger the life of a person
With intent 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 cause loss to any other person.
the threat need not be made directly to the victim provided that is is in fact conveyed to the victim.
it is immaterial where the substance of the allegation is true or false.
What is the statutory defence to blackmail
R v MARSHALL
it is a defence if he or she believes in an entitlement to the benefit or to cause the loss and, objectively viewed the threat is a reasonable and proper means for bringing about the obtaining of the benefit or the causing of the loss.
there must be a belief in an entitlement tot he benefit or causing of the loss (subjective) AND that the threat in the circumstances was a reasonable and proper means for effecting that purpose (objective)
what is the definition of a document?
A thing which provides information and serves as a record
What is the definition of a demand in relation to demands with intent s. 239
a clear request made firmly, need not be communicated to the person to whom it is directed,
it is sufficient that they said something to the person that constitutes a demand with the intention that is be passed on to the person from whom the property was demanded.
What must the prosecution prove for a charge of abduction under .208
that the defendant took away or detained a person
the taking or detention was deliberate
the taking or detention was unlawful
the taking or detaining was without consent or with consent obtained by fraud or duress.
the defendant knew there was no consent to the taking away or detaining.
the defendant intended to commit the acts in sub section a, b or c.
Define r v WELLARD in relation to abduction and kidnapping
the essence of the offence of kidnapping is the deprivation of liberty coupled with a carrying away from a place the victim wants to be.
Define R v CROSSAN in relation to abduction and kidnapping
“taking away and detaining are separate and distinct offences, the first consists of taking the victim away and the second of detaining her, the first offence was complete when the prisoner took the woman away against her will, the having taken her away he detained her against her will, his conduct in detaining her constituted a new and different offence”
taking away and detaining are separate offences and should be specified. And where there is evidence of both two charges shall be laid.
Define detaining in relation to abduction s.208 and kidnapping 210
R v PRYCE
detaining is an active concept meaning to keep in confinement or custody, this has to be contrasted to the passive concept of harbouring or mere failure to handover.
there is no minimum period of time that would constitute a detainment although mere delay or keeping back for a short period of time so as not to be an intrusion would not suffice.
Define consent as in R v COx
consent must be bull, voluntary, free and informed, freely and voluntarily given by a person in a position to form a rational judgment.
Explain R v MOHI in relation to when the offences of 208 and 209 are complete.
the offence is complete once there has been a period of detainment or a taking accompanied by the necessary intent regardless of whether the intent was carried out.
it is not necessary to prove marriage or sexual connection occurred or were attempted, it is only necessary that they were intended.
Explain Intent and R v WAAKA in relation to 208 and 209
R v WAAKA
intent may be formed at any time during the taking away, if a taking away commences without the intent to have intercourse but that intent is formed during the taking away then that is sufficient for the purpose of this section.
define marry
in this context marry means to engage in a marriage solemnized in accordance with the provision of the marriage act 1955
What must be proved for a conviction under s.209?
and R v M
- Defendant took away or detained a person;
- Taking or detention was intentional or deliberate;
- Taking or detention was unlawful;
- Taking was done without that person’s consent (or with consent induced by fraud or duress);
- Defendant knew that there was no consent to the taking or detention; and
- Defendant intended to:
(a) Hold the person for ransom or to service; or
(b) Cause the person to be confined or imprisoned; or
(c) Cause the person to be sent or taken out of New Zealand.
R v M
the crown must prove that the accused intended to take away or detain the complainant and that he or she knew that the complainant was not consenting
Define ransom
a sum of money demanded or paid for the release of a person held captive.
Define service
to be kept as a servant or slave
define confienement
to restrict movement to a geographical area but extends to curtailing their activity and exercising control and influence over them
the defendant need not directly effect the confinement but be responsible for causing it.
define imprison
will include confining as if in prison but will extend to situations such as being locked in a car boot.
define sent
will extend to situations where the victim leaves on their own as a result of a threat or other form of duress
define taken
the work taken suggests the victim is in the company or custody of a person accompanying them out of NZ
What is not a defence to a charge of abduction of a young person under 16 s.210(1)
no defence if:
1) the young person consents or is taken, enticed or detained at their own suggestion
2) the offender believes the young person to be 16 or over.
it is not necessary to prove the defendant intended a permanent deprivation.
define ingredient “proof of age”
in practise this will generally involve producing the victims birth certificate in conjunction with independent evidence identifying the victim as the person named in it.
R v FORREST and FORREST
the best evidence possible in the circumstances should be adduced by the prosecution in proving the victims age.
What is a statutory defence to the charge of receiving a young persons.210(2) and abducting a young person 210(1)
a person cannot be convicted if they claim in good faith a right to possession of a young person.
it must be shown beyond reasonable doubt that the defendant did not believe in good faith that he or she was entitled to possession of the young perosn
Definition “exploit”
exploit means;
in relation to a person means to cause or to have caused that person by an act of deception or co-ercion to be involved in:
a) prostitution or sexual services
b) slavery, practises similar to slavery, servitude, forced labour, or other forced services,
c) the removal or organs.
what is the diference between migrant smuggling and trafficking?
migrant smuggling involves a person who has freely consented to be bought into NZ as an illegal immigrant and is not subjected to coercion or deception.
Trafficking involves a person who is bought into NZ by means of co-ercion or deception
hence the differences are in:
1) consent
2) purpose of the travel
3) relationship between the person moved and people enabling the movement
4) violence, intimidation and co-ercion
5) liberty
6) profit
whose permission do you need to charge a person with Smuggling or trafficking
the attorney general, permission is not required to arrest or oppose bail.
What are the three investigation approaches to migrant smuggling and trafficking
reactive investigation;
victim led, often initiated by the victim or person acting on behalf of the victim
Proactive investigation;
police led, combination of standard investigation techniques supplemented by intelligence resources to identify and locate traffickers, gather evidence and instigate proceedings against them
Disruptive techniques;
appropriate in circumstances where the level of risk to the victim demands an immediate response, and proactive or reactive approaches are not appropriate.
