Violence - All

Question 1

Intention, what are the 2 types?

Answer 1

Intention to commit the act.

Intention to get a specific result.

Question 2

Proving intent, general assaults, case law?

Answer 2

Circumstantial evidence from offenders intent may be inferred by:

• The offenders actions and words, before, during and after the event.
• The surrounding circumstances.
• The nature of the act itself.

Question 3

Proving intent, serious assault cases, along with case law?

Answer 3

Circumstantial evidence such as:

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

Case Law, R v Taisalika:

“Nature of the blow and gash would point strongly to the presence of the necessary intent.”

Question 4

What is a Psychiatric Injury in relation to Bodily Harm?

Answer 4

Bodily Harm may include Psychiatric injury, but does not include mere emotion, such as fear, distress or panic.

MUST amount to an identifiable clinical condition

Question 5

What is a Wound and the case law?

Answer 5

Wound:

Breaking of the skin and the flowing of blood, either externally or internally.

R v Waters:

Breaking of the skin, normally evidenced by flow of blood, in the site of the blow or impact, wound will more often than not be external but there are cases of bleeding internally.

Question 6

What is Maiming?

Answer 6

Maim:

Mutilate, cripple or disable (MCD) a part of the body, to deprive the victim use of a limb or one of the senses.

Question 7

What is Disfigurement and the case law?

Answer 7

Disfigurement:

Deform or deface, mar, or alter the figure or appearance of a person.

Rapana and Murray:

“Disfigure, covers not only permanent damage but also temporary damage.”

Question 8

Define the Doctrine of Transferred Malice?

Answer 8

Not necessary the person suffering the harm was the intended victim.

Where Defendant mistakes identity or where harm intended for one is accidentally inflicted on another.

He is still criminally responsible, under the Doctrine of Transferred Malice, despite the wrong target being struck.

Question 9

What is Actual bodily Harm and the case law?

Answer 9

May be internal or external, need not be permanent or dangerous.

R v Donovan:

“Bodily harm includes any hurt or injury, interferes with the health and comfort of the Victim, need not be permanent, but must be more than transitory or trifling.”

Actual bodily harm can include PSYCHIATRIC INJURY, if medical evidence confirms an IDENTIFIABLE CLINICAL CONDITION.

Question 10

What is recklessness and the case law?

Answer 10

Consciously and deliberately taking an unjustifiable risk.

R v Cameron:

Recklessness is established if, the defendant recognised there was a real possibility, that the actions would bring about a proscribed result, that prescribed circumstances existed, and having regard to that risk those actions were unreasonable.

Question 11

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

Answer 11

191 (1) :

Wounds, maims, disfigures, causes GBH, stupefies, or renders unconscious any person, or by any violent means renders any person incapable of resistance.

191 (2):

Injures

The difference is the outcome of injury. Even if the offender assaults the person with a specific intent above and suffers no bodily harm the charge would be 191 (2).

Question 12

What are the 3 intents relating to section 191 and 192?

Answer 12

Intent to:

(a) commit or facilitate the commission of any imprisonable offence.
(b) avoid detection of himself or of any other person in the commision of any imprisonable offence.
(c) avoid arrest or facilitate flight of himself or of any other person upon the commision or attempted commision of any imprisonable offence.

Question 13

What is the two fold test for intent, case law?

Answer 13

R v Tihi:

1. Defendant intended to facilitate the commission of an imprisonable offence (or one of the other specified intents in paras (a), (b) or (c)) and
2. He or she intended to cause the specified harm, or was reckless as to the risk of others suffering it.

Question 14

In relation to 191 and 191, facilitate flight, what is the relevant case law?

Answer 14

R v Wati:

“Must be proof of the commision or attempted commision of a crime, either by the person committing the assault or by the person whose arrest of flight he intends to facilitate”.

Question 15

Define Stupefies?

Answer 15

Cause an effect on a person’s mind or nervous system, which seriously interferes with there mental or physical ability to act.

Question 16

In relation to section 198 (1) and (2) what are the differences?

And

Under S.198 (1)(a) what must there be and what is the relevant case law?

Answer 16

Section 198 (1) and (2) have the same actus reus, however the difference is the offenders intent.

(1) intent to do GBH (2) Intent to injure or reckless disregard for the safety of others.

198 (1)(a) case law, R v Pekapo:

“Reckless discharge in general direction of a passer-by who happens to be hit is not sufficient, an intention to shoot that person must be established”.

Question 17

In relation to 198 (1)(a) and (b) when are the offences complete?

Answer 17

(1) (a): the actual discharge of a firearm at a person.
(1) (b): not necessary for an explosion to occur, offence is complete when the explosive, device, injurious substance is sent, delivered, put in place, however it must have the capacity to explode or cause injury.

Question 18

Define property?

Answer 18

Includes:

Any real or personal property, or any estate or any interest in any real or personal property, money, electricity, and any debt, anything in action and any other right or interest.

Question 19

Define uses a firearm in any manner whatever and case law?

Answer 19

sufficient that the firearm is handled or manipulated in a way to convey an implied threat.

Not necessary that it be fired.

R v Swain:

“Deliberately or purposely removing a shotgun from a bag, once confronted or called upon by Police amounts to a use of that firearm under S.198 A”.

Question 20

What must be proven in intent to resist lawful arrest or detention, with case law?

Answer 20

Must prove the defendant knew there was an attempt to arrest him or her or the person he or she was assisting.

Fisher v R:

In order to establish a charge under 198A (2), crown must prove accused knew someone was attempting to arrest or detain him.

Question 21

In relation to 198B (1)(b), has with him has a tighter meaning that 198A, define has with him and the relevant case law?

Answer 21

Has with him, means:

• Must knowingly have the firearm with them, mere possession is insufficient.

R v Cox:
1. “Physical element, physical control or custody of the item, can either be actual or potential”. Actual has the thing in question in physical possession or control. Potential, potential to have that thing in there control.”

2. “Mental element, combination of knowledge and intent”.

Question 22

Define R v Crossan in relation to “incapable of resistance”?

Answer 22

R v Crossan:

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

191 (1):
“by any violent means renders any person incapable of resistance”

Question 23

What are the 3 offeneces relating to, section 198 (1)(a)(b) and (c) C.A 61?

Answer 23

with intent to do GBH

(a) discharges any, firearm, airgun, or other similar weapon, at any person.
(b) sends to any person, delivers to any person, or puts in place, any explosive, device or injurious substance.
(c) sets fire to any property.

Question 24

Define Dishonestly?

Answer 24

Dishonestly means done without a belief, that there was express or implied consent or authority, from a person entitled to give such consent or authority.

Question 25

Define claim of right, also case law?

Answer 25

Means a belief at the time of the act, that a proprietary or possessory right to the property in which the offence is alleged, may be based on ignorance or mistake.

R v Skivington:

“Larceny (or theft) is an element of robbery, if an honest belief that a man has claim of right, as such a defence to larceny (theft), without this element, the offence of robbery cannot be proven”.

Question 26

Define takes, also case law?

Answer 26

Takes, when the offenders moves the property or causes it to be moved.

R v Lapier:
Robbery complete instant property taken, even if possession is only momentary.

Question 27

Define ownership?

Answer 27

A person is regarded as the owner or any property if, at the time of the theft, that person has:

• that person has possession or control of that property, or
• any interest in that property, or
• the right to take possession or control of the property.

Question 28

Define accompanied by and case law?

Answer 28

It must be shown the defendant had an intent to steal at the time violence or threats were used, and those threats were used to extort, prevent or overcome.

Usually occurs immediately before, at the time of theft, however not always the case.

R v Maihi:

Accompany, there must be a nexus (connection) between the act of stealing and the threat of violence. Both must be present, however does not require these to be contemporaneous.

Question 29

What was found in R v Mitchell?

Answer 29

Maybe occasions where property is handed over to a thief as a result of a previous threat which is still operating on the victims mind, fact and degree in each case.

Question 30

What was found in Peneha v Police?

Answer 30

Sufficient that the defendants actions forcibly interfere with personal freedoms or amount to forcible powerful ir violent actions or motion producing a very marked or powerful effect tending to cause bodily injury.

Question 31

What was found in R v Broughton?

Answer 31

A manifestation or an intention to inflict violence, unless the money or property is handed over. Threat may be direct or veiled, conveyed by words or conduct or both.

Capable of amounting to threat of violence must be assessed in context in which it occurred, circumstances can include:

• relative ages of the parties
• respective physics
• appearances
• demeanour
• what was said and done by those involved
• the manner and setting in which the incident took place.

Question 32

Definition of extort, prevent and overcome?

Answer 32

Extort: obtain by violence, coercion or intimidation or to extract forcibly.

Prevent: to keep from happening.

Overcome: To defeat, to prevail over, get the better of in a conflict.

Question 33

In relation to physical proximity in aggravated robbery, what is the case law?

Answer 33

Physical proximity, two or more people actually present and acting together in the commision of the robbery. Joint enterprise.

R v Joyce:
Crown must establish that two persons were physically present at the time of the robbery or when the assault occurred.

Question 34

What is the case law in relation to being together, section 235 (b)?

Answer 34

R v Galey:

Being together, is 2 or more persons having a common intention to use their combined force, in the perpetration of the crime.

Question 35

Define offensive weapon?

Answer 35

202A of the crimes act.
any article made or altered for use for causing bodily injury, or intended by the person having it with him or her for such use or article capable of being used for causing bodily injury.

Question 36

What does R v Bentham discuss?

Answer 36

That a “thing” does not include a part of a person body.

Question 37

Define assault?

Answer 37

Act of intentionally:

• Applying or attempting to apply force, directly or indirectly.
• threatening by act or gesture to apply force, if the person making the threat cause the other to believe on reasonable grounds that they have the present ability to affect their purpose.

Question 38

What are the 5 phase investigation steps for blackmail offences?

Answer 38

1. Initial report phase
2. Mobilisation phase
3. Consolidation phase
4. Investigation and operation phase
5. Reactive phase

Question 39

Liability - BLACKMAIL

Answer 39

BLACKMAIL
S.237 (1) C.A 1961

• Threatens,
• Expressly or by implication
• To make any accusation against any person (whether living or dead) or
• To disclose something about any person (whether living or dead) or
• To cause serious damage to any property, or
• To endanger the safety of any person,
  with intent:
  (a) to cause the person to whom the threat is made to act in accordance with the will of the person making the threat; and
  (b) to obtain any benefit or cause loss to any other person.

Question 40

What is the defence to BLACKMAIL?

Answer 40

1. That the person believed that they were entitled to the obtain the benefit or cause loss, and
2. (Objectively) the threats made were reasonable and proper means for obtaining the benefit or causing the loss.

Question 41

Liability - DEMANDS WITH INTENT TO STEAL

Answer 41

Demands with intent to steal
S.239 (1) C.A 61

• Without claim of right,
• by force or with any threat,
• compels any person to,
• make, alter, accept, destroy, endorse, execute,
• Any document capable of conferring a pecuniary advantage,
• with intent to obtain any benefit.

Question 42

Liability - ABDUCTION

Answer 42

Abduction
S.208 (a)(b)(c) C.A 61

• Unlawfully
• Takes away or detains
• A person
• Without their consent or with their consent obtained by fraud or duress
• With intent to
  (a) go through a form of marriage or civil union with that person or
  (b) have sexual connection with that person or
  (c) to cause the person, to go through a form or marriage or civil union, or to have sexual connection with some other person

Question 43

Define, unlawfully?

Answer 43

Without lawful justification, authority or excuse.

Question 44

Define, taking away and case law?

Answer 44

Taking away, physically removed from one place to another.

R v Wellard:

Essence of the offence of kidnapping is the “deprivation of liberty coupled with the carrying away from the place that person wants to be”.

Question 45

Define R v Crossan?

Answer 45

Taking away and detaining are “separate and distinct offences”.

One of taking the other of detaining.

The first is complete when he takes her away, the second is complete when he detains her.

Constituting a new offence.

Question 46

Define detaining and case law?

Answer 46

Detaining is an active concept of imposing a constraint or restraint on a person.

R v Pryce:
detaining is an active concept, to keep in confinement or custody. Contrasted to the passive concept of harbouring or mere failure to hand over”.

Question 47

Define consent and case law?

Answer 47

A person conscious and voluntary agreement to something desired or proposed by another.

Consent may be given by words or conduct or both.

R v Cox:
Consent must be, full, voluntary, free and informed.. freely and voluntarily given by a person in a position to form a rational judgement.

Question 48

What was discussed in R v Mohi?

Answer 48

The offence is complete once a period of detention or a taking accompanied by the necessary intent. Regardless of whether the intent was carried out.

Question 49

What was discussed in R v Waaka?

Answer 49

Intent may be formed anytime during the taking away. If taking away commences without the intent to have intercourse, but then formed during the taking away, that is sufficient.

Question 50

Defined sexual connection?

Answer 50

(a) connection effected by the introduction into the genitalia or anus of one person, otherwise than for genuine medical purposes, of—

(i) a part of the body of another person; or
(ii) an object held or manipulated by another person; or

(b)connection between the mouth or tongue of one person and a part of another person’s genitalia or anus; or

(c) the continuation of connection of a kind described in paragraph (a) or paragraph (b)
`

Question 51

Liability - Kidnapping

Answer 51

Kidnapping
S.209 (a)(b)(c) C.A 61

• Unlawfully
• Takes away or detains
• A person
• Without their consent or with their consent obtained by fraud or duress
• With intent to:
  (a) hold him or her for ransom or service
  (b) cause him or her to be confined or imprisoned
  (c) cause him or her to be sent or taken out of NZ

Question 52

Discuss case law R v M?

Answer 52

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

Question 53

Liability - Abduction of a Young Person Under 16

1

Answer 53

Abduction of a Young Person under 16
S.210 (1) C.A 61

• With intent to deprive a parent or guardian or other person having the lawful care or charge of a young person, of the possession of the young person,
• unlawfully
• takes, entices away or detains
• the young person

Question 54

Liability - Abduction of a Young person Under 16

2

Answer 54

Abduction of a Young Person under 16
S.210 (2) C.A 61

• Receives
• A young person
• knowing that he or she has been unlawfully taken or enticed away or detained, with intent to deprive a parent or guardian or other person having the lawful care or charge of him or her, of the possession of him or her.

To be liable under this section, an offender must KNOW that the YP they are receiving has been abducted.

Question 55

In subsection 3 (a) and 3 (b) of S.210, C.A, its discussed 2 points regarding under 16 and abduction, what are they?

Answer 55

3 (a) - its immaterial whether the YP consents, or is taken or goes or is received at his or her own suggestion.

3 (b) - Its immaterial whether the offender believes the YP to be of or over 16.

Question 56

Discuss section 210A C.A?

Answer 56

Statutory defence of GOOD FAITH.

A person who claims in GOOD FAITH a right to possession of a YP, cannot be convicted because he or she gets possession of the YP.

When this defence arises, it lies with prosecution to negate the “claim of right” beyond reasonable doubt.

Question 57

Discuss section 210A C.A?

Answer 57

Statutory defence of GOOD FAITH.

A person who claims in GOOD FAITH a right to possession of a YP, cannot be convicted because he or she gets possession of the YP.

When this defence arises, it lies with prosecution to negate the “claim of right” beyond reasonable doubt.

Question 58

Liability - Smuggling Migrants

S.98 C (2)(a)(b) & (c)

Answer 58

Smuggling Migrants
S.98 C (2)(a)(b) & (c) C.A 61

• Arranges for an unauthorised migrant to be brought to NZ or any other state,
• If he or she:
  (a) does so for material benefit, or
  (b) either knows that the person is, or is reckless as to whether the person is an unauthorised migrant, and
  (c) either -
  (i) knows that person intends to try and enter the state, or
  (ii) is reckless as to whether the person intends to try to enter the state.

Question 59

Liability - Smuggling Migrants

S.98 C (2)(a)(b) & (c)

Answer 59

Smuggling Migrants
S.98 C (2)(a)(b) & (c) C.A 61

• Arranges for an unauthorised migrant to be brought to NZ or any other state,
• If he or she:
  (a) does so for material benefit, or
  (b) either knows that the person is, or is reckless as to whether the person is an unauthorised migrant, and
  (c) either -
  (i) knows that person intends to try and enter the state, or
  (ii) is reckless as to whether the person intends to try to enter the state.

Question 60

In relation to subsection (4)(a)(b) & (c) of S.98 D, exploiting in relation to people mean what?

Answer 60

Involved in:

(a) prostitution or other sexual services
(b) Slavery, practices similar to slavery, servitude, forced labour, or other forced services:
(c) removal of organs

Question 61

In relation to subsection (4)(a)(b) & (c) of S.98 D, exploiting in relation to people mean what?

Answer 61

Involved in:

(a) prostitution or other sexual services
(b) Slavery, practices similar to slavery, servitude, forced labour, or other forced services:
(c) removal of organs

Question 62

Define People Trafficking?

Answer 62

Involves a person who is brought into NZ by means of COERCION and/or DECEPTION. Usually for exploitation.

Question 63

What are the differences between Migrant Smuggling and People Trafficking?

Answer 63

• Consent
• Purpose of the travel or movement
• relationship between the people being moved and the people enabling the moving.
• violence, intimidation or coercion.
• liberty
• profit

Question 64

What are the 3 investigative approaches for people trafficking?

Answer 64

Reactive:

Victim led, either Victim approached Police or someone else on Victims behalf.

Proactive:

Police led, combination of investigation and intelligences to ID, locate traffickers and instigate proceedings.

Disruptive:

Where level of risk to Victim demands an immediate response. Proactive and where reactive are no practical options.

Question 65

What are the 3 investigative approaches for people trafficking?

Answer 65

Reactive:

Victim led, either Victim approached Police or someone else on Victims behalf.

Proactive:

Police led, combination of investigation and intelligences to ID, locate traffickers and instigate proceedings.

Disruptive:

Where level of risk to Victim demands an immediate response. Proactive and where reactive are no practical options.

Question 66

Define accusation?

Answer 66

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

Question 67

What does benefit mean in relation to 237 & 239 C.A61

Answer 67

benefit means:

any benefit, pecuniary advantage, privilege, property, service, or valuable consideration.

Question 68

What is Queen v Hunt and what does it relate to?

Answer 68

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 struck.

This principle was applied in Hunt, where the defendant intended to stab the property owner, but accidentally wounded the man’s servant instead.

Question 69

Uses in any manner with case law?

Answer 69

It is sufficient if the defendant has handled or manipulated the firearm so as to convey an implied threat

R v Swain

To deliberately or purposely remove a sawn-off shotgun from a bag after being confronted by or called upon by a police constable amounts to a use of that firearm within the meaning of s 198A Crimes Act 1961.