Violence CIB 010 Part 1 Flashcards
Wounds with Intent to Cause GBH
Section 188 (1) CA 1961 14years With Intent to cause Grevious Bodily Harm; to any person; wounds, maims, disfigures or causes grevious bodily harm; to any person
Wound
R v Waters: A breaking of the skin, normally evidenced by a flow of blood at the site of the blow or impact, wound will more often than not be external, but can also be internal.
Maims
Mutilating, crippling or disabling a part of the body so as to deprive the victim of the use of the limb or one of the senses. Must have some degree of permanence.
Disfigures
To deform, deface, mar or altar the appearance of a person R v Rapana and Murray The word disfigure covers not only permanent damage but also temporary damage.
Grevous Bodily Harm
Harm that is really serious DPP V SMITH Bodily harm needs no explanation and grievous means no more and no less than really serious. Grievous refers to the degree of harm
R v Waters example in relation to GBH
if offender stabs a victim and the knife penetrates vital organs -GBH but if it misses so that only tissue is cut, this would be more in keeping with an injury
GBH & immediate harm
All that is required is the acteus reus. GBH is not limited to immediate harm. The connection between cause and effect is a physical one not one of time. Eg R v Mwai who infected two women with HIV, HIV follows a steady and relentless progression leading to AIDS and then to death.
Doctrine of transferred malice + Case law
It is not necessary that the person suffering the harm was the intended victim. This may have arisen out of mistaken identification or accidental application of force. If the defendant has a mens rea of a particular crime and carries the actus reus of the same crime, he is guilty even though the result may have been unintended.
The opposite of the above would be someone throwing a stone at a person (Injury or wound) and smashing a window (Willful damage). Rv Hunt (the _unt)
Wounding vs GBH
Wounds; Maims & Disfigures refer to type of injury. GBH to the degree of seriousness EG, Single stab in the arm may result in a superficial wound, but still constitute 188(1) if the offenders intent was to inflict serious harm. 5 Stabs in the chest would be more appropriately cLassed as GBH
Injury -definition; case law & eg
Section 2 CA 1961- To cause actual bodily harm.
R V Donovan= ‘Bodily harm’ includes any hurt or injury calculated to interfere with the health or comfort of the victim… it need not be permanent but must no doubt be more than merely transitory or trifling
Bruised arm is not an injury
Injury & eg; psychiatric injury
Actual bodily harm can include psychiatric injury (hysterical or nervous condition), if medical evidence confirms an identifiable clinical condition. Best proof ‘expert evidence’ to identify a recognised psychiatric condition.
Knocked out teeth
injury not a wound
Bruised arm
Not even an injury
R v Sturm
‘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 the intended crime.
Stupefy
Also include the administration of drugs that has led to dis-inhibition and stimulated uncharacteristic behavour.
Renders unconscious
Render- to cause to become or to be The offenders actions must cause the victim to lose consciousness.
Example of ‘renders unconscious’
Blow to the head; carotid hold; noxious substance
Violent means
Application of force that physically incapacitates a person. EG R V Claridge (clarit) hit prison officer on head with iron bar) Not limited to physical violence and can include threats of violence, depending on the circumstances. (Assessment made by the jury)
Rendered in capable of resistance Discussion, Caselaw, who makes the assessment of the element
Mere threat may not constitute ‘violent means’ and will depend upon surrounding circumstances.
EG R V Crossan- intention to rape victim by holding a loaded revolver to victims head which was sufficient to cause victim to submit to his will.
Jury to make that assessment.
Assault
Section 2 CA 1961
- The act of intentional applying or attempting to apply force to the person of another,
- directly or indirectly, or
- threatening by any act 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 he or she has the present ability to effect his or her purpose’
Intent
1) Two types of intents, firstly, there must be an intention to commit the act and secondly, an intention to get a specific result. 2) Intention is a deliberate act, must be more than involuntary or accidental EG Assault S2 CA 1961 -The act of intentionally applying force 3) Intention to Produce a specific result EG Sec 228 (1)(b) CA 1961 Intent to obtain any benefit…
Proving Intent - Onus
Prosecution beyond reasonable doubt
Intent- Circumstantial evidence
1) offenders actions and words before, during and after the event 2) The surrounding circumstances 3) The nature of the act itself
Proving Intent -8 points in assault cases
1) Prior threats made 2) Evidence of premeditation 3) The use of a weapon 4) Whether weapon used was opportunistic or purposely brought 5) Number of blows 6) Degree of force used 7) Body parts targeted 8) Degree of resistance or helplessness of the victim
Wounds with Intent to Injure
Sec 188(2) CA 1961 7yrs -With intent to injure anyone, or with reckless disregard for the safety of others; -Wounds, Maims, Disfigures or causes GBH -to any person
Distinction between 188(1) & 188(2)
Offenders intent. Both relate to actions that result in W, M, D or GBH
Recklessness
Acting recklessly involves consciously and deliberately taking of an unjustifiable risk
Recklessness - Subjective test
The defendant consciously and deliberately ran a risk or was aware of the risk and proceeded regardless
Recklessness - Objective test
It was unreasonable for him to do so (based on whether a reasonable person would have taken the same risk)
Recklessness & extent of injury-what needs to be proved
Necessary to prove the defendant foresaw the risk of injury, not necessary that he recognised the extent of the injury that would result.
Injuring with Intent GBH
189(1) CA 1961 10 years -with intent to cause GBH -to anyone -Injures -any person
Injuring with Intent -Injures
189(2) CA 1961 5 Years -with intent to injure anyone or with reckless disregard for the safety of others, -injures -any person
Distinction between 189(1) & 189(2)
Offenders intent, both result in an injury
Section 191 CA 1961
Aggravated wounding 191 (1) Everyone is liable for a term not exceeding 14 years who with the intent- (a) to commit or facilitate the commission of any imprisonable offence or; (b) To avoid the detection of himself or of any other person in the commission of any imprisonable offence; or (c) To avoid arrest or facilitate the flight of himself or any other person upon the commission or attempted commission of any imprisonable offence- Wounds, Maims, Disfigures or causes GBH to any person, or stupefies or renders unconscious any person, or by violent means renders any person incapable of resistance
Section 191 (1)(a)
(1) Everyone is liable for a term not exceeding 14 years who with the intent- (a) to commit or facilitate the commission of any imprisonable offence-
- Wounds,
- Maims,
- Disfigures or
- causes GBH to any person,
- or stupefies
- or renders unconscious any person,
- or by violent means renders any person incapable of resistance
Section 191 (1)(b)
Aggravated wounding 191 (1) Everyone is liable for a term not exceeding 14 years who with the intent-
(b) To avoid the detection of himself or of any other person in the commission of any imprisonable offence
Wounds, Maims, Disfigures or causes GBH to any person, or stupefies or renders unconscious any person, or by violent means renders any person incapable of resistance
Section 191 (1)(c)
Aggravated wounding 191 (1) Everyone is liable for a term not exceeding 14 years who with the intent-
(c) To avoid arrest or facilitate the flight of himself or any other person upon the commission or attempted commission of any imprisonable offence-
Wounds, Maims, Disfigures or causes GBH to any person, or stupefies or renders unconscious any person, or by violent means renders any person incapable of resistance.
Aggravated injury section and punishment
191 (2) 7 years
Aggravated injury liability
191 (2) Everyone is liable for a term not exceeding 7 years who with the intent- (a) to commit or facilitate the commission of any imprisonable offence or; (b) To avoid the detection of himself or of any other person in the commission of any imprisonable offence; or (c) To avoid arrest or facilitate the flight of himself or any other person upon the commission or attempted commission of any imprisonable offence- injures any person
To aggravate
Means to make it worse
Criminal liability for someone who assaults with one of the specified intents in 191 (1)(a-c) but victim suffers no harm
Aggravated assault Section 192 C.A.
R V Tihi
In addition to one of the specified 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 would likely expose others to the risk of suffering it.
Two fold test for intent 191
R v Tihi Intent to do a,b or c and an intent to cause the specified harm.
To facilitate
make possible, or to make easy or easier
Imprisonable offence
Sec 5 CPA 2011 - Life in prison or any term of imprisonment.
Avoid detection
Causes specified harm to prevent himself or any other person to be ‘caught in the act’
Avoid detection 191(1)(b) eg
look out knocks security guard unconscious to prevent him from walking in on a burglary in progress
R V Wati
Must prove he gave the beans Refers to section 191(1)(c) 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.
Section 192 (1) CA 1961
Aggravated assault (1) 3 years who assaults any other person with intent -
(a) to commit or facilitate the commission of any imprisonable offence or;
(b) To avoid the detection of himself or of any other person in the commission of any imprisonable offence; or
(c) To avoid arrest or facilitate the flight of himself or any other person upon the commission or attempted commission of any imprisonable offence
Section 192 (2)
Aggravated assault 3 years who assaults:
- any constable or any person acting in aid of any constable, or any person
- in the lawful execution of any process
- with intent to obstruct the person assaulted
- in the execution of his duty…
Section 192 (2) elements to prove
1) Need to prove all elements of an Assault- 2) Intent to obstruct ..
Section 198 (1)(a) CA 1961
Discharging a firearm or doing a dangerous act with intent Section 198 (1) 14 years who, with intent to do GBH-
(a) Discharges any firearm, airgun or similar weapon at any person
Section 198 (1)(b) CA 1961
Discharging a firearm or doing a dangerous act with intent Section 198 (1) 14 years who, with intent to do GBH-
(b) Sends or delivers; to any person, or puts in any place, any explosive or injurious substance or device
Section 198 (1)(c) CA 1961
Discharging a firearm or doing a dangerous act with intent Section 198 (1) 14 years who, with intent to do GBH-
(c) Sets fire to any property.
Section 198 (2)
7 years who, with intent to injure or with reckless disregard for the safety of others does any of the acts referred to in subsection (1)
Mens Rea of Section 198
Intent to do GBH, injure, reckless disregard for the safety of others
Actus reus of Section 198
discharging a firearm; delivering explosives or setting fire to property
Aim of section 198 CA 1961
Create a criminal liability based on intentions and actions rather than outcome or comsequences (188 /189)
R v Pekepo
Proving Intent under S 198 A reckless discharge of a firearm in the general direction of a passer-by whop happens to be hit is not sufficient proof. An intention to shoot that person must be established
Meaning of Discharge
Fire or shoot
Firearm Section 2 Arms Act 1983
Sec 2 Arms Act 1983 Firearm a) Means anything from which any shot, bullet, missile, or other projectile can be discharged by force of explosive and b) Includes i) Anything that has been adapted; and ii) Anything which is not for the time being capable of, but which, by its completion or replacement of any component, or repair of any defect would be a firearm; and iii) Anything dismantled or partially dismantled; and iv) Any specially dangerous airgun
Airgun Section 2 Arms Act 1983
Sec 2 Arms Act 1983 Airgun Includes - a) Any air rifle; andb) Any air pistol; andc) Any weapon from which, by the use of gas or compressed air (and not by force of explosive), any shot, bullet, missile, or other projectile can be discharged
Sends or delivers
Takes ordinary meaning, includes situations where the victim recieves dangerous thing by mail, courier eg letter bomb
Explosive Section 2 Arms Act 1983
Any substance or mixture or combination of substances which in its normal state is capable either of decomposition at such rapid rate as to result in an explosion or of producing a pyrotechnic effect, Includes: gun powder, gelignite, detonators Does Not Include: Firearms, fireworks
Injurious substance or device
Covers a range of things capable of causing harm to a person; EG a letter containing Anthrax powder that is mailed to a political target. Fitzees fence (R v Fitzgerald) - Barbed wire around gang pad connected to an electric fence unit- must be turned on to cause an injury
Completion of offence (Difference between 198 (1)(a) and (b)
Although offences under section 198{1)(a) require the actual discharge of a firearm at a person, under section 198(1 ){b) it is not necessary for an explosion to occur; the offence is complete 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.
Doing a dangerous act Section & penalty
Section 198(1)(b) Crimes Act 1961 14 years imp
Section 198 A (1) CA 1961 Liability and penalty
(1) 14 years who - *Uses any firearm in any manner whatever * Against any constable or any traffic officer or any prison officer acting in the course of his or her duty * Knowing that OR Being reckless whether or not that the person is a constable or traffic officer or prison officer so acting
Section 198 A (2) CA 1961 Liability & penalty
(2) 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.
Uses in any manner whatever - Comment & Case law
Comment= use in relation to a firearm is to fire it, in any manner whatever includes a range of actions that stop short of actually shooting the officer. To present the rifle too is equivalent to or means the same thing Police v Parker Case law= R V Swain
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 S198A CA 61.
Constable
Policing Act 2008 S 4 a police employee who- a) hold the office of constable (whether appointed as a constable under the Police Ac 1958 or this Act); and b) includes a constable who holds any level of position within the New Zealand Police.
Acting in the course of his or her duty
The term includes every lawful act which a constable does while on duty, and may include acts done where the circumstances create a professional obligation for a Constable to exercise policing duties while off duty. However, an officer who is acting unlawfully, cannot be said to be “acting in the course of his or her duty.”
Simester and Brookbanks
Knowing means knowing or correctly believing.The belief must be correct, if the belief is wrong you cannot know something.
Fisher V R
(Cant just go fishing) 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.
198B CA 1961
(1) 10years who:
(a) In committing any imprisonable offence Uses any firearm OR
(b) While committing any imprisonable offence,
- has any firearm with him or her
- in circumstances that prima facie to show
- an intention to use it
- in connection with that imprisonable offence.
Uses any firearm Sec 198B
Narrower meaning than 198A
Has with him -comment under sec 198B + Case law
- Offender must knowingly have the firearm with them
mere possession is insufficient
Refer R V COX
Possession both physical (actual & potential) and mental components must be proved to satisfy this element
R V Kelt
Having a firearm “with him” requires “a very close physical link and a degree of immediate control over the weapon”.
Imprisonable offence
Section 5, Criminal Procedure Act 2011 In the case of an individual, an offence punishable by imprisonment for life or by a term of imprisonment.
Prima facie + Case law
At first appearance
R v Tuli ‘Prima facie’ circumstances are those which are sufficient to show or establish an intent in the absence of evidence to the contrary
Section 66 Arms Act 1983
Occupier of premises or driver of vehicle deemed to be in possession of firearms, air gun, imitation firearm, restricted weapon or explosive found therein until proved otherwise
What must be proved first under section 191 (1)(c) CA 1961
Commission of a crime R V Wati
Intents of Aggravated Injuring
to commit or facilitate the commission of any imprisonable offence or; (b) To avoid the detection of himself or of any other person in the commission of any imprisonable offence; or (c) To avoid arrest or facilitate the flight of himself or any other person upon the commission or attempted commission of any imprisonable offence
R v Taisalika + Comment
The nature of the blow and gash which it produced upon the complainants head would point strongly to the presence of the neccessary intent. Loss of memory of past events is not the same as a lack of intent at the time.
