Violence - case law

Question 1

Proving intent

Answer 1

R v Collister

Two Police officers were charged with demanding with menaces after causing a man to believe he would be arrested for soliciting homosexual acts unless he paid them money. Although no express demand for money was made, it was held that the defendants’ intent could be inferred from the circumstances.

Question 2

Proving intent in serious assault cases

Answer 2

R v Taisalika

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.

Question 3

Degree of harm and example of doctrine of transferred malice

Answer 3

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.

Question 4

Grievous bodily harm

Answer 4

DPP v Smith

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

Grievous bodily harm can be defined simply as harm that is really serious.

Question 5

Psychiatric injury

Answer 5

Owen v Residential Health Management Unit

The Court highlighted that bodily harm may include psychiatric injury but does not include mere emotions such as fear, distress, panic, or a hysterical or nervous condition:

It may be necessary that the injury should amount to an identifiable clinical condition. Expert evidence will be required before an issue of psychiatric injury arises:

R v Donaldson

The defendant performed indecent acts on the while he was unconscious. The victim had no recollection of the events but, once he learned of them, they had a profound psychological impact on him.

Bodily harm in s.188 includes really serous psychiatric injury identified as such by appropriate specialist evidence.

Question 6

Not limited to immediate harm

Answer 6

R v Mwai

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.

In affirming his conviction for causing grievous bodily harm with reckless disregard for the safety of others, the Court of Appeal held that section 188 is not limited to the immediate harmful consequences of the offender’s actions, such as external assault or injury from a blow of some kind.

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.

Now, with advances in modern medicine, HIV doesn’t always lead to AIDS the expert medical evidence adduced may have brought about a differ outcome.

All that is required for the actus reus is an act causing grievous bodily harm. The link between cause and effect is a physical one, not one of time. Usually of course the is instant: a blow causes a wound. But it is not necessarily so. The consequences may be delayed, but they are consequences nonetheless.

Question 7

Wounds

Answer 7

R v Waters

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, inits 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.

R v Scott & Lewis

Two defendants were charged with wounding with intent to injure after punching the victim repeatedly in the head. The victim, who was on anti-coagulant drugs at the time, sustained internal injuries that required surgery for a blood clot on the brain.

Question 8

Disfigurement

Answer 8

R v Rapana and Murray

The word disfigure covers not only permanent damage but also temporary damage.

Question 9

Actual bodily harm

Answer 9

R v Donovan

Bodily harm includes any hurt or injury calculated to interfere with the health or comfort of the victim. It not be permanent, but must, no doubt be more than merely transitory and trifling.

R v Chan-Fook

The Court of Appeal held that the body of the victim includes all parts of his body, including his organs, his nervous system and his brain. Bodily injury therefore may include injury to any of those parts of his body responsible for his mental and other faculties accordingly the phrase actual bodily harm is capable of including psychiatric injury.

Question 10

Recklessness

Answer 10

R v Harney

Recklessness means the conscious and deliberate taking of an unjustified risk. In New Zealand it involves proof that the consequence complained of could well happen, together with an intention to continue the course of conduct regardless of risk.

R v Tipple

The Court suggested that as a general rule recklessness is to be given the subjective meaning which requires that the accused had a conscious appreciation of the relevant risk.

Question 11

Two fold test for intent

Answer 11

R v Tihi

In addition to one of the specific intents outlined in paragraphs (a), (b), or (c), it must be shown that the offender either meant to cause the specified harm, or foresaw that the actions undertaken by him were likely to expose others to the risk of suffering it.

Question 12

Facilitate flight

Answer 12

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.

Question 13

Stupefies

Answer 13

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 person’s mental or physical ability to act in any way which might hinder an intended crime.

Question 14

Violent means

Answer 14

R v Claridge

The defendant attempted to hit a prison officer on the head with an iron bar while attempting to escape from prison. The prison officer blocked the blow, but in the process fell from the prison wall and sustained injuries, including a broken ankle.

Claridge argued unsuccessfully that he was not liable for an offence against section 191(1)(c) as the injuries had been caused by the fall and not by the iron bar.

However the term violent means is not limited to physical violence and may include threats of violence, depending on the circumstances.

Question 15

Rendered incapable of resistance

Answer 15

R v Crossan

The defendant, intending to rape the victim, presented a loaded revolver at her and threatened to shoot her unless she submitted to sexual intercourse.

It was held that mere threat may not in itself be sufficient to constitute violent means, but when the person making the threat is brandishing a loaded revolver in circumstances that cause the victim to submit to his will in the belief that he will carry out his threat unless she does so, it can be said that she was rendered incapable of resistance by violent means just as effectually as if she were physically incapable.

Question 16

Intent under s.198

Answer 16

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.

Question 17

Injurious substance or device

Answer 17

R v Fitzgerald

The Court of Appeal looked at an injurious device. The offender in this matter had set up a perimeter fence around a gang headquarters, consisting of barbed wire connected to an electric fence unit. This connection was quashed as the unit was not operating at the time, however it was acknowledged that, if plugged into the mains power supply, the fence would have been a device likely to cause injury.

Question 18

Uses in any manner whatever

Answer 18

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 Section 198A, Crimes Act 1961.

Police v Parker

The defendant, when confronted by Police, produced a loaded sawn-off shotgun and aimed it a a constable. A struggle ensued and the weapon was again aimed at the officer with the offender’s finger on the trigger. The weapon was finally thrown to the ground without being fired.

In this matter the Court suggested to use in any manner whatever is to contemplate a situation short of actually firing the weapon an d would include presenting it.

It could also include the use of firearms in ways in which they are not normally used, such as where a firearm is used as a club.

Question 19

Knowing

Answer 19

Simester and Brookbanks

Knowing means knowing or correctly believing. The defendant may believe something wrongly, but cannot know something that is false.

Question 20

Intent to resist lawful arrest or detention

Answer 20

Fisher v R

It is necessary in order to establish a charge under section 198A(2) for the Crown to prove that 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.

Question 21

Has with him

Answer 21

R v Cox

Both a physical and mental component must be proved to satisfy this element.

The physical element requires the physical custody or control over the item in question and can be either actual or potential.

Actual possession arises where the thing in question is in a person’s physical custody or control.

Potential possession arises when the person has the potential to have the thing in question in their control. For example, storing the thing in question at any associate’s house or through an agent.

The mental element is a combination of both knowledge that the person possesses the item in question, and an intention to possess the item.

R v Manapouri

The Court of Appeal found that two or more people can be charged in regard to a single firearm, that each had with him , if each had an appropriate degree of control over it.

Question 22

Prima facie

Answer 22

Tuli v Police

The Court defined Prima facie circumstances are those which are sufficient to show or establish an intent in the absence of evidence to the contrary.

Question 23

Claim of right as a defence to robbery

Answer 23

R v Skivington

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 negates one of the elements in the offence of robbery, without proof of which the full offence is not made out.

Question 24

Taking

Answer 24

R v Lapier

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

R v Peat

The defendant, on horseback, stopped a gentleman’s carriage and demanded his money. The gentleman handed his silk coin-purse to the defendant, who handed it straight back saying.. give me the contents of it. At that point he was apprehended by the gentleman’s servant and was subsequently convicted of highway robbery.

Question 25

Possession

Answer 25

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 substance is in his possession; and an intention to exercise possession,.

Question 26

Accompanied by

Answer 26

R v Maihi

It is implicit in accompany that there must be a nexus (connection or link) between the act of stealing… and a threat of violence. Both must be present. However the term does not require that the act of stealing and the threat of violence be contemporaneous.

R v Mitchell

The Court held that There may be occasions where property is handed over to a thief as a result of threats previously made but still operating on the mind of the victim at the time… the question will be one of fact and degree in each case.

Question 27

Violence

Answer 27

Peneha v Police

It is 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.

Question 28

Threats of violence

Answer 28

R v Broughton

Two street kids approached the victim, a younger male who was sitting alone at a bus stop. They sat on either side of him and asked him if had any money. When the victim said no, Broughton leaned in close and again asked for money. His manner was not overtly aggressive but his demeanour and the circumstances caused the victim to fear that violence would be used if he continued to refuse and consequently he handed over some cash.

The Court of Appeal held that Broughton’s actions amounted to robbery by threats of violence.

R v Butler

The defendant wearing a balaclava, confronted a man who was int he process of locking up his business premises and stole a briefcase containing $16,000 cash.

The Court held that the sudden appearance of a tall man wearing a balaclava in circumstances where the complainant was securing his premises for the night and had a large amount of cash in his briefcase was inherently violent and thus amounted to a threat of violence. Such a combination of circumstances could well cause a person so confronted to freeze thus facilitating a theft.

R v Pacholko

The Court said the actual presence or absence of fear on the part of the complainant is not the yardstick. It is the conduct of the accused which has to be assessed rather than the strength of the nerves of the person threatened.

Question 29

Used to extort the property stolen

Answer 29

R v Newell

The defendant was confronted by a security guard in a parking lot after stealing meat from a supermarket. He swung a knife at the guard and ran away leaving the meat behind. The Court of Appeal quashed his conviction for robbery on the basis that the violence had been used not to overcome resistance to the theft, but to facilitate his escape afterwards.

It was held that the theft was complete when the appellant exited the store. The violence cannot be said to be to overcome resistance to the theft.

In those circumstances charges of theft and aggravated assault or aggravated wounding may have been more appropriate.

Question 30

Extort

Answer 30

R v Macro

It was held that if the victim knows that the police are ready to step in and prevent the actual infliction of harm and is therefore unaffected by threats made by the accused, there will be no robbery.

Question 31

Any person

Answer 31

R v Wells

The Court held 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.

Question 32

Physical proximity

Answer 32

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.

Question 33

Joint enterprise

Answer 33

R v Galey

Being together in the context of section 235(b) involves 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.

The Court of Appeal quashed Galey’s conviction for aggravated robbery on the basis that the charge was not aimed at those who were present at the scene only to act as a look out or to give encouragement.

The Court did, however, consider Galey’s actions in encouraging his associate made him liable as a party to the robbery, and substituted a conviction under section 234.

Question 34

Anything appearing to be such

Answer 34

R v Bentham

The Court said what is possessed must under the definition be a thing. A person’s hand or fingers are not a thing. If they were regarded as property … the court could, theoretically, make an order depriving the offender of his rights to them and they could be taken into the possession of the Police.

Williams v R

This decision is applicable in New Zealand following Williams where the Court confirmed, applying the previously cited Bentham, that a person who uses his fingers to simulate the possession of a firearm is not armed with any thing and does not commit aggravated robbery.

It has been held in both Canada and Australia that a dog may be a weapon.

Question 35

Communication of the threat

Answer 35

R v Marshall

The Court confirmed that the threat made need not be received directly by the intended victim provided it is conveyed to that victim.

Question 36

Accusation

Answer 36

R v Kirby

The accused, a detective, claimed to have a warrant to arrest his victim for buggery, and said that the victim would be imprisoned for ten years and his property would be taken unless he offered the detective money. The Court held that these comments amounted to an accusation or threat to accuse.

It is immaterial whether the substance of the accusation is true or false.

Question 37

Statutory defence - blackmail

Answer 37

R v Marshall

The Court of Appeal said an accused can avoid liability where he or she believes in an entitlement to obtain the benefit or to cause the loss, and objectively viewed, the threat is a reasonable and proper means for bringing about that obtaining or that causing of the loss. It will be for the jury to determine whether the means were reasonable and proper.

Question 38

Taking away

Answer 38

R v Wellard

The essence of the offence of kidnapping is the deprivation of liberty coupled with a carrying away from the place where the victim wants to be.

Question 39

Taking away vs detaining

Answer 39

R v Crossan

Taking away and detaining are separate and distinct offences. The first consists of taking the victim away; the second of detaining her. The first offence was complete when the prisoner took the woman away against her will. Then, having taken her away, he detained her against her will, and his conduct in detaining her constituted a new and different offence.

Question 40

Detains

Answer 40

R v Pryce

Detaining is an active concept meaning to keep in confinement or custody. This is be contrasted to the passive concept of harbouring or mere failure to hand over.

Boyd v R

The Court in this matter found that the accused’s actions had detained the woman as he had taken over control of the victim who was hindered, retarded and restrained from proceeding. In this case a period of 10 to 15 minutes was sufficient to constitute an intrusion.

Question 41

Consent

Answer 41

R v Cox

Consent must be full, voluntary, fee and informed… freely and voluntarily given by a person in a position to form a rational judgement.

R v Isherwood

The Court noted that consent may be present even though there was some degree of irrationality (or insobriety), depending on the circumstances of the case.

Consent may be conveyed by words or conduct or both.

Question 42

Consent obtained by fraud

Answer 42

R v Wellard

The offender gained the victim’s consent fraudulently by representing himself as a police officer, which he was not.

R v Cort

The women in this case were unharmed and Cort denied any sinister motive, claiming that the handcuffs, Durex, string, Stanley knife and tape located in his car were there for innocent purposes.

Question 43

Consent obtained by duress

Answer 43

Hirani v Hirani - civil case

A young Indian Hindi girl successfully sought a divorce after being forced by her family to enter into an arranged marriage. The girl went through with the ceremony under threat of being kicked out of the family home if she did not, which would have left her with nowhere to live and no means to support herself.

Question 44

Intent in abduction cases

Answer 44

R v Mohi

A man charged with abducting his wife argued unsuccessfully that the Crown had to prove both a lack of consent to the taking away, and a lack of consent to the subsequent intercourse.

The High Court disagreed and held that to satisfy the requirements of section 208, the time of importance is that of the taking away, and any subsequent marriage or sexual intercourse without consent would be the subject of a separate investigation.

Mohi

The offence is complete once there has been a period of detention or a taking accompanied by the necessary intent, regardless of whether that intent was carried out.

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 purposes of the section.

Question 45

What must be proved

Answer 45

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.

Question 46

Person having lawful care or charge

Answer 46

R v Chartrand

The boy was enticed away from the playground and the accused took photos of him. He argued he had no intention to deprive the parents of the child but only wanted to surprise them with photos of their child.

The Court in this matter said it was sufficient that the taker knows or foresees that his or her actions would be certain or substantially certain to result in the parents etc.. being deprived of the ability to exercise control over the child.

It is not necessary to prove the accused intended a permanent deprivation.

Question 47

Proof of age

Answer 47

R v Forest and Forest

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

R v Clancy

The victim’s birth certificate was not produced but it was held that in that case evidence of the victim’s date of birth given by her mother was sufficient to prove the girl’s age.