Violence offences Flashcards
What do Section 188 subsections (1) and (2) both relate to?
They both relate to actions that result in wounding, maiming, disfiguring or grievous bodily harm to the victim.
The outcome is the same; the distinction between the two subsections is the offenders intent.
What are the differences in subsections 188(1) and (2)?
The offenders intent
In subsection (1) the offender intends to cause GBH
In subsection (2) the offender only intends to injure
Subsection (2) also allows for an alternative mens rea element involving “reckless disregard for the safety of others”
Definition of “Any one” or “any person”
The terms are interchangeable and are equivalent terms.
The assaults discussed in his module are gender neutral.
How is the fact that a victim is a “person” accepted in court?
It is generally accepted by judicial notice or proved by circumstantial evidence.
Does age need to be proved?
If age is not an element of the offence then the age of the victim is not relevant.
Note: offences such as “assault on a child” or “male assaults female” Require proof of age and gender respectfully.
Is it necessary that the person suffering the harm is the intended victim in respect of Wounding with Intent (S188)
No it is not necessary that the person suffering the harm is the intended victim.
Intent definition
Criminal law context: There must be an intention to commit the act and an intention to get a specific result.
Result definition (Intent)
Aim, object or purpose
Who has to prove intent?
The onus is generally on the prosecution to prove the offenders intent beyond reasonable doubt
Can circumstantial evidence be used to prove intent?
Yes, as in R v Collister.
While an offenders admissions to their intent is good evidence, it is good practice to support these with circumstantial evidence. Such as:
- The offenders actions and words before, during and after the event
- The surrounding circumstances
- The nature of the act itself
In serious assault cases, what additional circumstantial evidence can assist in proving the 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
- the body parts targeted by the offender (EG the head)
- the degree of resistance or helplessness of the victim (EG helplessness)
For a charge under S188(1), does the “wounding, maiming or disfigurement” of a person need to be grievous?
Wounding, maiming or disfiguration need not be grievous, if in causing that harm the defendant had the intent to cause really serious harm
Causes grievous bodily harm
A person causes GBH if their actions make them criminally responsible for it
Under S188, does the harm have to be caused by a physical assault?
While most offences under s188 will involve a physical assault, the section does not specify the manner in which the harm may be caused; there is no reference to the use of violence, and it is therefore not necessary to prove an assault in all cases
Grievous bodily harm definition
Grievous refers to the degree of the harm, rather than to the nature or how it was caused.
As long as the harm is serious, it need not involve life threatening or permanent injury.
Is psychiatric injury included as bodily harm?
Bodily harm can include psychiatric injury but it 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. And should therefore be diagnosed by appropriate specialist evidence.
A charge under S188 can be justified where there has been a psychiatric injury but the victim is unaware of the assault.
Is S188 limited to immediate harm?
It is not necessary that the harm inflicted be instantaneous as all that is required is the offenders intent to cause the harm. The link between cause and effect is a physical one, not of time so if the consequence s of the offenders actions are delayed, they are still consequences.
Usually however, the effect is instant (a blow causing a wound etc)
Wound definition
As per R v Waters - a wound involves the breaking of the skin and the flowing of blood, either internally or externally.
Any rupture of 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.
Wounds, maims & disfigures vs GBH
The terms “wounds” “Maims” and “disfigures” refer to the type of injury caused, whereas the term “grievous” refers to the degree or seriousness of the injury.
E.G stabbing a person with a knife will cause a wound which may or may not be “GBH” depending on the seriousness of the wound.
Maiming definition
Common law “Depriving another of the use of such of his members as may render him the less able in fighting, either to defend himself or his adversary”
In practical terms, mutilating, crippling or disabling a part of the body so as to deprive the victim of the use of a limb or one of their senses.
Does a maiming need to be permanent?
To constitute a maiming, there needs to be some degree of permanence.
Maiming or GBH
maiming is an archaic term as the loss of a limb or one of the senses would generally constitute Grievous Bodily Harm.
Disfigure definition
Means to “deform or defence; to mar or alter the figure or appearance of a person”
results from the infliction of an external injury that detracts from the personal appearance of the victim
Does a disfigurement need to be permanent?
No it need not be permanent
The doctrine of transferred malice definition
It is not necessary that the person suffering the harm be 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.
Injury vs grievous bodily harm (Determination of charge)
Whether the actual bodily harm suffered by the victim is an injury or one of the more serious outcomes provided for in s188(1) is a matter of fact for determination in each case.
Where it is at the lower end of the scale of seriousness, it may amount to an injury.
Where it is on the higher end of the scale it may amount to wounding, maiming depending on the nature or to grievous bodily harm depending on its seriousness.
Injure definition
The definition for injury is defined in S2 of the Crimes Act 1961
To injure means to cause actual bodily injury
Actual bodily harm definition
Actual bodily harm may be internal or external, and it need not be permanent or dangerous.
Can actual bodily harm include psychiatric injury?
Yes, if medical evidence confirms an identifiable clinical condition.
Does not include mere emotions, such as fear, distress or panic.
Is recklessness an element in S188(2)
Yes, it includes the offence of wounding, maiming etc “with reckless disregard for the safety of others”
Recklessness definition
Acting recklessly involves consciously and deliberately taking an unjustifiable risk.
What are two examples of recklessness? (Social utility)
An example of “no social utility” - a game of Russian roulette.
An example of “high social utility” - a surgeon undertaking a risky but potentially life saving injury
What are the injury requirements for S189(1) and (2)
If there is an intent to cause grievous bodily harm, it is immaterial whether grievous bodily harm was done, so long as an injury, actual bodily harm in some fashion was inflicted.
How do offences under S189(1)&(2) differ from S188(1)&(2)?
The offences under S189 only differ in the level of injury that is actually inflicted. The mens rea required by the two sections is identical.
S188 requires the outcome to be wounding maiming etc where S189 requires the outcome to be an injury.
Aggravate definition (S191)
Means to make it worse or more serious.
In the context of S191 the offending is aggravated by the fact that the offender caused the harm to the victim in the process of committing some imprisonable offence.
What specific intents do subsections 191(1) and (2) both require?
- Intent to commit or facilitate the commission of any imprisonable offence
- Intent to avoid the detection of himself or of any other person in the commission of any imprisonable offence
- Intent to avoid the arrest or facilitate the flight of himself or of any other person upon the commission or attempted commission of any imprisonable offence.
What is the distinction between subsections 191(1) and (2)?
The distinction is the outcome.
S191(1) the outcome is wounding, maiming or one of the other specified forms of harm.
S191(2) the outcome is an injury.
What would be the appropriate charge if the offender had a specified intent but the victim suffered no actual physical harm?
Instead of S191 you would charge under S192 Aggravated assault.
What is the “Two fold test” for intent in relation to S191 (Aggravated wounding)?
Under R v Tihi.
Must satisfy:
1. The defendant intended to facilitate the commission of an imprisonable offence (or one of the other intents)
2. He or she intended to cause the specified harm, or was reckless as to that risk
Does S191 (aggravated wounding) have to be intentional?
It can either be intentional or recklessness.
“Facilitate the commission of any offence” - Facilitate definition
means to make possible, or to make easy or easier.
Under S191(1)(a) where a defendant intentionally or recklessly causes the specified harm to commit an offence - do you need to commit the offence?
Provided he has the necessary intent at the time he causes the harm, it is immaterial whether he actually commits the intended offence or not.
Imprisonable offence definition
Any offence which is punishable by imprisonment.
“Avoid detection” under S191(1)(b) - Detection definition
offences under S191(1)(b) arise during the commission of an imprisonable offence, where the offender causes the specified harm to prevent himself or another person from being caught in the act.
Provide an example of S191(1)(b) (Avoiding detection)
A “look out” knocks a security guard unconscious to prevent him from walking in on a burglary in progress.
“Facilitate flight” Under S191(1)(c) definition
Offences under S191(1)(c) arise after an imprisonable offence has been committed or attempted. The specified harm is caused to enable the offender or offenders to more easily make their escape or to prevent their capture.
What must the prosecution prove in relation to S191(1)(c) in “facilitating the flight”
They must prove that an imprisonable offence was actually committed or attempted, before a person can be convicted of aggravated wounding while escaping after it.
Stupify definition
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 an intended crime.
What else can “Stupefy” include?
It not only describes a situation where they are rendered senseless or unconscious but can also include circumstances where the administration of drugs has led to dis-inhibition and stimulated uncharacteristic behaviour.
Renders unconscious definition
To render means to “Cause to be” or “cause to become”
The render someone unconscious, the offenders actions must cause the victim to lose consciousness.
How can rendering unconscious be achieved?
This section does not limit how this may be achieved. It can include knocking a person unconscious with a blow to the head, strangling them or administering a noxious substance.
“Violent means” definition
includes the application of force that physically incapacitates a person, such as tying the victims hands and feet or inflicting debilitating injuries.
Is “:Violent means” limited?
It is not limited tho physical violence and may include threats of violence, depending on the circumstances.
Rendered incapable of resistance definition
A mere threat may not in itself be sufficient to constitute “violent means” that renders a person incapable of resistance. However, if he is brandishing a firearm, for instance, then it may be enough to cause the victim to submit to his will in the belief the threat will be carried out.
This can be considered as being rendered incapable of resistance by violent means just as effectually as if she were physically incapable.
What do you have to prove for Aggravated injury?
You have to prove one of the specified intents under S191(2) and prove that the offender intended to injure or had reckless disregard for the safety of others.
Injures takes on the definition from injuring with intent.
For an offence under S192(1) (Aggravated Assault) what must the offender have done?
The offender must assault the victim with intent
What must you prove for a conviction of Aggravated Assault (S192(1)) ?
You must prove all the elements of assault. Which are the:
- Intention to apply or attempt to apply force to another
- Application or attempted application of force, whether directly or indirectly or
- Threaten to apply force in circumstances where the victim believes the offender will be able to carry out the threat
S192(1) Crimes Act - Aggravated Assault - What further element of intent do you have to prove?
You are required to prove that the offender intended, at the time of the assault, to commit an imprisonable offence or help commit an imprisonable offence, or avoid detection or arrest or facilitate their flight or another flight after committing an imprisonable offence.
What must you prove for a charge against S192(2) Crimes Act (Aggravated Assault)?
- You will need to prove the elements of assault
- You are further required to prove the offender intended, at the time of the assault, to obstruct the Constable, person coming to their aid, or anyone executing a lawful purpose
What are the three optional forms of mens rea in regards to Section 198 Crimes Act - Discharging firearm with intent?
- Intent to do GBH
- Intent to injure
- reckless disregard for the safety of others
What are the three acts reps acts in regards to S198 Crimes Act - Discharging firearm/doing dangerous act with intent?
- Discharging a firearm at a person
- Delivering explosives
- Setting fire to property
What does S198 Crimes Act - Discharging firearm / doing dangerous act with intent - create criminal liability based on?
It is based on the intentions and actions of the offender, rather than on the outcome or consequences of those actions.
Therefore, it is not necessary to prove the victim suffered actual bodily harm. What is relevant is that the offender did one of the specified acts, with one of the specified intents.
Where bodily harm results from a specified offence under S198 Crimes Act (Discharging firearm / doing reckless act with intent) what is the most appropriate offence?
The appropriate charge would be one of wounding or injuring with intent under Section 188 or 189 of the Crimes Act 1961 or murder or manslaughter, depending on the outcome
What are the similarities and differences between S198(1) and S198(2) Crimes Act 1961 (Discharging firearm / doing dangerous act with intent)?
Similarities : The actus reus - discharging a firearm at a per son, delivering explosives and setting fire to property.
Differences : The offenders intent. In S198(1) the offenders intent is to cause GBH where in S198(2) the offenders intent is to cause injury or acts with reckless disregard for their safety.
Under S198(1)(a) is it sufficient that a person discharge a weapon in the general direction of a person who happened to be hit?
It is not sufficient for the prosecution to show a reckless discharge of a weapon in the general direction of the person who happened to be hit. There must be an intention on the part of the defendant to shoot THAT person
Discharge (Firearm) definition
To “Discharge” means “to fire or shoot”
Firearm definition
Firearm means anything from which any shot, bullet, missile or other projectile can be discharged by force of explosives and includes
Anything that can be adapted so as to do the above
Anything that can be fixed (by completion or replacement of components) so as to do the above
Anything that is a firearm as per this definition but has been temporarily dismantled or partially dismantled and
Any specially dangerous airgun
“Sends” or “delivers” definition
They take their ordinary meanings and may include situations where the victim receives a dangerous thing by mail or courier, such as in the case of a ‘letter bomb’
Explosive definition
As defined by S2 of the Arms Act 1983
(a) Means any substance or mixture or combination of substances which in its normal state is capable either of decomposition at such a rapid rate as to result in an explosion or of producing a pyrotechnic effect and
(b) without limiting paragraph (a) includes gun powder, nitroglycerine, dynamite, guncotton, blasting powder, fulminate of mercury or of other metals, coloured flares, fog signals, fuses, rockets, percussion caps, detonators, cartridges and ammunition of all descriptions; and
(c) without limiting paragraph (a) or (b) includes any device, contrivance, or article, which uses any substance or mixture or combination of substances to which paragraph (a) or paragraph (b) applies as an integral part of it for the purposes of producing an explosion or ballistic or pyrotechnic effect; but does not include a firearm; and
(d) does not include any firework.
Injurious substance definition?
Injurious substance or device covers a range of things capable of causing harm to a person; for example, a letter containing Anthrax powder.
Boiling water has been held to be a ‘destructive’ substance in previous court decisions.
When is an offence under S198(1) Crimes Act 1961 (Discharging firearm or doing dangerous act with intent) complete?
Offences under S198(1)(a) require the actual discharge of a firearm at a person.
Under S198(2) 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 it must have the CAPACITY to explode or cause injury.
What does fire damage include?
Fire damage will often involve burning or charring, it is not necessary that the property be set alight. Melting, blistering of paint or significant smoke damage may be sufficient to prove the offence.
Property definition
Property is defined in S2 Crimes Act 1961
Property includes real and personal property, and any estate or interest in any real or personal property, money, electricity, and any debt, and any thing in action, and any other right or interest.
Does “setting fire to property” include intangible items?
No, this offence will only apply to tangible items although the statutory definition is very broad and covers intangible things.
“Uses in any manner whatever” in relation to S198A Crimes Act 1961 (Discharging firearm against law enforcement officer) Definition
The primary meaning of ‘use’ in relation to a firearm, is to fire it. However, the words ‘in any manner whatever’ widen the definition to include a range of acts that stop short of actually shooting at an officer.
It is sufficient if the defendant has handled or manipulated the firearm so as to convey an implied threat of its further use against the police officer. It is not necessary that the firearm was presented at the officer or that it was discharged.
Could include using it like a club
Constable definition
Policing Act 2008 S4 interpretation
Constable means a Police employee who -
(a) holds the office of Constable (whether appointed as a Constable under the policing act 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 / her duty” under S198A Crimes Act 1961
Police duties arise under both statute and common law and in general terms they include protecting life and property, preventing and detecting crime, apprehending offenders and keeping the peace.
This term includes every lawful act a constable does while on duty and may include acts done where the circumstances create professional obligation for a constable to exercise policing duties.
If an officer acts unlawfully are they covered under “acting in the course of his / her duty” if they were on duty at the time?
If an officer is acting unlawfully, for example using excessive force during an arrest, interfering with a persons liberty without justification, or trespassing on private property without authority, cannot be said to be “acting in the course of his or her duty”
Knowing definition relation to S198A Crimes Act 1961 being using firearm against a law enforcement officer
The defendant must KNOW the victim is a police officer and KNOW that the officer is acting in the course of his / her duty or be reckless as to those facts.
Can they still be charged under S198A Crimes Act 1961 if the prosecution cannot prove they knew the victim was an officer acting in the course of his / her duty or was reckless to this fact?
No, if it cannot be proved that they had knowledge or were reckless to the fact that they were an officer so acting then a charge should be considered under one of the other related provisions.
In respect of S198A(2) Crimes Act 1961 (Using a firearm against a law enforcement officer) what else must be proved?
It must be proved that the defendant knew an attempt was being made to arrest o r detain him or her, or the person he or she was assisting.
“Uses any firearm” differences in Section 198B Crimes act 1961 differences from Section 198A Crimes Act 1961?
Unlike Section 198A, the words ‘uses any firearm’ are not accompanied by the phrase ‘in any manner whatever’ and may therefore have a narrower meaning.
“uses any firearm” - what does this include?
firing or presenting a firearm, or displaying it in a menacing manner, but may not extend to the use of a firearm as a club.
Section 198B Crimes Act 1961 - “Has with him” definition
The offender must knowingly have the firearm with them - mere possession is insufficient.
Section 198B Crimes Act 1961 - what must there be evidence of regarding possession?
There must be evidence that the defendant not only had possession, in the sense that he / she knowingly had custody or control of the firearm, but also that it was at the time available, and at hand for him or her to use while committing the imprisonable offence.
Is mere possession sufficient under S198B Crimes Act 1961?
No, there must be accompanying circumstances showing prima facie intention to use the firearm in the commission of the imprisonable offence.
