Violence module

Question 1

Name and explain three investigative options for people smuggling and migrant smuggling?

Answer 1

Reactive Investigation: Victim led, often initiated by approach to Police by victim or person on their behalf.

Proactive investigation: Police led. Combination of standard investigation techniques supplemented by intelligence resources to identify, locate traffickers and gather evidence and instigate proceedings against them.

Disruptive investigation: Appropriate in circumstances where the risk to the victim demands an immediate response and proactive or reactive approaches are not practicable options.

Question 2

What is the difference between migrant smuggling and people trafficking?

Answer 2

Migrant smuggling involves a person freely consenting to be brought to NZ as an illegal immigrant. Not subjected to coercion or deception

People trafficking involves a person brought to NZ by means of coercion and/or deception. People are often trafficked so they can be exploited in destination country eg as forced labour, harvesting their organs or sexual exploitation.

Question 3

What is the doctrine of transferred malice. Support with case law.

Answer 3

It is not necessary that the person suffering the harm was the intended victim. Where the offender mistakes the identity of the person injured or where harm intended for one person is accidentally inflicted on another he is still criminally responsible.

R v Hunt: Malice against the person cut is not essential, general malice is sufficient.

Question 4

When investigating a serious violence offence what can be used to prove offenders intent?

Answer 4

Circumstantial evidence that may assist in proving offenders intent;

• prior threats
• evidence of premeditation
• the use of a weapon
• whether any weapon used was opportunistic or purposely brought
• the number of blows
• the degree of force used
• body parts targetted by offender, eg the head
• degree of resistance or helplessness of victim, eg unconciuos

Question 5

What is the definition of maiming?

Answer 5

depriving one of the use of such of his members as may render him less able in fighting.

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

There must be a degree of permanence

Question 6

Define injurous substance or device and give an example.

Answer 6

The term injurous substance or device covers a range of things capable of causing harm to a person. Eg a letter containing Anthrax powder mailed to politician.

Question 7

Would a charge under 198A(1) fail if Police officer is trespassing? Explain.

Answer 7

Yes. The officer must be acting in the course of his duty, which includes every lawful act done while on duty.

Where an officer is acting unlawfully, eg trespassing he cannot be said to be acting in the course of his duty.

Question 8

What are the ingredients of using a firearm against law enforcement officer, section 198A(1) CA 61?

Answer 8

Section 198A Crimes Act 1961

(1) Every one is liable to imprisonment for a term not exceeding 14 years who uses any firearm in any manner whatever, against any constable, or traffic officer or prison officer, acting in the course of his or her duty knowing that or being reckless whether or not that person is a member of Police or a traffic officer or a prison officer so acting.

Question 9

What was held in R v Kelt?

Answer 9

Having a firearm with him requires a very close physical link and a degree of immediate control over the weapon by the man alleged to have the firearm with him.

Question 10

Define dishonestly

Answer 10

Section 217 CA 61.
Dishonestly in relation to an act or omission, means done or omitted without a belief that there was express or implied consent to, or authority for, the act or omission from a person entitled to give such consent or authority.

Question 11

What was held in R v Skivington?

Answer 11

Theft is an ingredient of robbery, and if there is the honest belief that a man has a claim of right as a defence to theft, then it negatives one of the ingredients in the offence of robbery, without proof of which the full offence is not made out.

Question 12

List the ingredients of demands with intent to steal S239(1)

Answer 12

239(1) - Every one is liable to imprisonment for a term not exceeding 14 years who, without claim of right, by force or with any threat, compels any person to execute, make, accept, endorse, alter or destroy any document capable of conferring a pecuniary advantage with intent to obtain any benefit

Question 13

Define claim of right

Answer 13

Claim of right, in relation to any act, means a belief at the time of the act in a proprietry or possessory right in property in relation to which the offence is alleged to have been committed, although that belief may be based on ignorance or mistake of fact or of any matter of law other than the enactment against which the offence is alleged to have been committed

Question 14

List the ingredients of demands with intent to steal 239(2)

Answer 14

239(2) Every one is liable to imprisonment for a term not exceeding 7 years who, with menaces or by any threat, demands any property from any persons with intent to steal it.

Question 15

What factors increase a charge of robbery to aggravated robbery?

Answer 15

Section 235 CA 1961:
Every one is liable to imprisonment for a term not exceeding 14 years who -
a) robs any person and at the time of, or immediately before or immediately after the robbery, causes GBH to any person, OR

b) being together with any person or persons robs any person, OR
c) being armed with any offensive weapon or instrument, or anything appearing to be such weapon or instrument, robs any other person

Question 16

Define an accusation

Answer 16

An allegation that the defendant person is guilty of criminal conduct. It will not require that any formal charges have been filed against that person.

Question 17

What was held in R v Waters?

Answer 17

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 in its occurence 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 seperation of tissues may be internal.

Question 18

What is the two fold test outlined in R v Tihi?

Answer 18

R v Tihi held the prosecution must satisfy a two fold test for intent:

1) The defendant intended to facillitate the commission of an imprisonable offence (or one of the other intent specified in paragraphs (a), (b) or (c) and
2) He or she intended to cause the specified harm or was reckless as to that risk

Question 19

A woman befriends an elderly lady and finds out that the old lady has a lot of money in her account. She demands the lady give her the PIN or she will tell her family not to have anything more to do with her. What offence has she committed?

a) Blackmail
b) Robbery
c) Demands with intent to steal

Answer 19

Answer:

C

Question 20

List the ingredients of Blackmail.

Answer 20

Section 237 CA 1961
(1) every one commits blackmail who threatens, expressly or by implication, to make any accusation against any person (whether living or dead), to disclose something about any person (whether living or dead), or to cause serious damage to property or 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 21

A man puts a letter in a neighbours letterbox threatening to damage his car unless he pays him money. Explain the liability under S237?

Answer 21

Blackmail. Has threatened expressly to cause serious damage to property to cause the person to act in accordance with his will and to obtain a benefit.

Question 22

List the ingredients of Assault with intent to rob S236.

Answer 22

236 CA 1961:
(1) Every one is liable to imprisonment to a term not exceeding 14 years who, with intent to rob any person-

(a) Causes GBH to that person or any other person, OR
(b) being armed with any offensive weapon or instrument, or any thing appearing to be such a weapon or instrument, assaults that person or any other person, OR
(c) being together with any other person or persons, assaults that person or any other person.
(2) Every one who assaults any person with intent to rob that person or any other person is liable to imprisonment for a term not exceeding 7 years.

Question 23

What is the statutory defence for blackmail?

Answer 23

A belief by the person making the threat that they are entitiled to the benefit or to cause the loss is not in itself a defence to a charge under S237(1), unless the threat is, in the circumstances, a reasonable and proper means for effecting his or her purpose.

Question 24

Define extort

Answer 24

To extort means to obtain by violence, coercion or intimidation or to extract forcibly. Oxford Dictionary

Question 25

Define stupfies - R v Sturm

Answer 25

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 person’s mental or physical ability to act in any way which might hinder an intended crime. Thus stupefy does not only describe a situation where a person is rendered senseless or unconscious, but may also include circumstances where the administration of drugs has led to dis-inhibition and stimulated uncharacteristic behaviour.

Question 26

GBH is not limited to immediate harm. Give example of non immediate harm and support with caselaw.

Answer 26

In R v Mwai defendant was charged after infecting two women with HIV after having unprotected sex with them.
In affirming his conviction for “causing GBH with reckless disregard for safety of others” the Court of Appeal held that section 188 is not limited to immediate harm. All that is required for the actus reus is an act causing GBH. The link between cause and effect is a physical one, not one of time.

R v Mwai - expert medical evidence that HIV follows a steady relentless progression. leading to AIDS and then inevitably to death was sufficient to establish that the defendant caused GBH.

Question 27

Explain R v Taisalika in regards intoxication and intent.

Answer 27

In R v Taisalika the defendant crashed a party and struck another partygoer with a glass, which shattered and caused a gash to the victims head.
Taisalika unsuccessfully argues that he was so intoxicated that he couldn’t remember the incident and therefore couldn’t have had the intent.

The court held that loss of memory of past events is not the same as a lack of intent at the time.

R v Taisalika - the nature of the blow and the gash it produced on the complainants head would point strongly to the presence of the necessary intent.

Question 28

Define disfigurement

Answer 28

To disfigure means to deform or deface, to mar or alter the figure or appearance of a person.

Disfigurement results from external injury that detracts from the personal appearance of the victim, however does not need to be permanent.

Question 29

What questions must you ask when you receive CHIS information relating to a robbery.

Answer 29

• has the source supplied reliable information previously
• has the source information come from two seperate sources
• have staff members who work on premises of intended robbery noticed any suspicious people in the vicinity
• does the company deal with large amounts of money, drugs or valuable goods
• can you verify the information as correct

Question 30

What was held in R v Crossan? (kidnapping)

Answer 30

R V Crossan - taking away and detaining are two seperate and distinct offences. The first consists of taking the victim away, the second of detaining her. The first offfence was complete when the prisoner took the woman against her will. Then having taken her away he detained her against her will, and his conduct in detaining her constitued a new and different offence.

Question 31

What was held in R v Lapier?

Answer 31

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

Question 32

List the three intents in kidnapping.

Answer 32

S209 CA 1961

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

Question 33

Jim sees Billys with a new iPhone which he wants to buy. He tells Billy to give him the phoneto play with or else he will punch him in the head. Billy gives him the phone and runs away. What is Billys liability?

a) Robbery
b) Demands with intent to steal
c) No liability for robbery or demands with intent to steal.

Answer 33

Answer:

c) No intent to deprive the owner permanantly of the property.

Question 34

A parent may commit an offence against 210(2) Abduction of young person. give an example?

a) Taking child contrary to court order
b) leaving the child alone
c) denying custody to the other party

Answer 34

Answer:

a) A parent may commit an offence against this section in respect of their own child if their actions are unlawful, eg father taking child contrary to court order.

Question 35

In relation to takes away and detains which of the following is correct?

a) detains and takes away are in relation to the deprivation of liberty therefore are the same.
b) detains and takes away are different therefore create different offences.
c) detains and takes away are the same and it doesn’t matter which one it is.

Answer 35

Answer:

b) refer R v Crossan

Question 36

What was held in R v Chartrand?

Answer 36

R v Chartrand - unlawfully means without lawful justification, authority or excuse.

Question 37

What is the difference between S188 (1) and 188 (2)?

Answer 37

The level of harm inflicted is the same, the difference is the offenders intent.

Question 38

Define injury.

Answer 38

Sec 2 CA 1961 - to injure means to cause actual bodily harm.

Question 39

What is the difference between wounds/maims/disfigures and GBH?

Answer 39

Wounds/maims/disfigure refer to the type of the injury. GBH relates to the degree seriousness

Question 40

When investigating a serious assault what circumstantial evidence can you use to prove intent?

Answer 40

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

Question 41

What is the difference between S188 and S189?

Answer 41

The difference is the level of injury inflicted. The mens rea is the same.

Question 42

What was held in DPP v Smith?

Answer 42

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

Question 43

What was held in R v Tihi?

Answer 43

R v Tihi - in addition to the specific intents outlined in paragraphs (a), (b) and (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 44

What was held in R v Crossan

a) a mere threat constitutes violent means
b) a mere action may constitute violent means
c) a combintion of threats and violence constitues violent means

Answer 44

Answer:

c)

Question 45

What was held in R v Joyce?

a) two people in a joint enterprise present at the time of the robbery
b) two people in a joint enterprise actively involved in the robbery
c) two people committing a robbery together are liable

Answer 45

Answer:

a)

Question 46

What constitutes recklessness?

Answer 46

Acting recklessly involves consciously and deliberately taking an unjustified risk.

Question 47

Define R v Harney

Answer 47

R v Harney - recklessness involves foresight of dangerous consequences that could well happen together with an intention to continue the course of conduct regardless of the risk.

Question 48

Define grievous bodily harm.

Answer 48

GBH can be defined as harm that is really serious. As long as the harm is serious it need not be life threatening or permanent injury.

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

Question 49

Define a wound.

Answer 49

Any rupture of the tissues of the body, internal or external, can amount to a wound and whether or not it does is a matter of fact for determination in each case.

Also R v Waters.

Question 50

What must prosecution prove against someone who abducts a young person under s210(2)?

Answer 50

• that the defendant received a person under the age of 16;
• the receiving was deliberate or intentional;
• the defendant knew that the young person had been unlawfully taken, enticed awayor detained by another from a person who had lawful possession of the young person; and
• the defendant intended by reason of the receiving to deprive the person with lawful care of possession of that young person.

Question 51

When can intent include bringing about secondary consequences?

Answer 51

When the offender believes those consequences will happen. Different from recklessness which involves foresight that a consequence is likely to happen.

Question 52

What does circumstantial evidence include?

Answer 52

Offenders intent can be inferred from:

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

Question 53

What are the two parts of 188 (2)?

Answer 53

• With intent to injure any person wounds, maims, disfigures or causes GBH to any person
• with reckless disregard to the safety of others, wounds, maims, disfigures or causes GBH to any person

Question 54

Circumstantial evidence from which an offenders intent may be inferred include what?

a) victims injuries
b) offenders words or conduct during the incident
c) victims statement

Answer 54

Answer:

b)

Question 55

Jim sees Billy with a new iPhone which he wants to buy. He tells Billy to give him the phone to play with or else he will punch him in the head. Billy gives him the phone and runs away. What is Jim’s criminal liability?

a) robbery
b) demands with intent to steal
c) no liabillity for robbery or demands with menaces

Answer 55

Answer:

c) No liability. - no intent to deprive the owner permanently.

Question 56

What is the age for a charge of people smuggling?

Answer 56

Child 18 years or under.