Violence Offences Flashcards
1
Q
Wounding with Intent to GBH (Act & Section)
A
Section 188(1), Crimes Act 1961
2
Q
Wounding with Intent to GBH (Elements)
A
- With Intent to cause grievous bodily harm
- To any person
- Wounds or Maims or disfigures or causes GBH
- To any person
3
Q
Wounding with Intent to Injure (Act & Section)
A
Section 188(2), Crimes Act 1961
4
Q
Wounding with Intent to Injure (Elements)
A
- With Intent to injure any person or with reckless disregard for the safety or others
- Wounds or Maims or disfigures or causes GBH
- To any person
5
Q
Injuring with Intent to GBH (Act & Section)
A
Section 189(1), Crimes Act 1961
6
Q
Injuring with Intent to GBH (Elements)
A
- With Intent to cause grievous bodily harm
- To any person
- Injures
- Any person
7
Q
Injuring with Intent to Injure (Act & Section)
A
Section 189(2), Crimes Act 1961
8
Q
Injuring with Intent to Injure (Elements)
A
- With Intent to injure any person or with reckless disregard for the safety or others
- Injures
- Any person
9
Q
Wounding with Intent (penalties)
A
- Section 188(1) - 14 years
- Section 188(2) - 7 years
10
Q
Injuring with Intent (penalties)
A
- Section 189(1) - 10 years
- Section 189(2) - 5 years
11
Q
Intent (define)
A
- A deliberate act
- Intent to get a specific result
12
Q
Aggravated Wounding (GBH) (Act & Section)
A
Section 191(1), Crimes Act 1961
13
Q
Aggravated Wounding (GBH) (Elements)
A
- 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 the arrest or facilitate the flight of himself or of any other person upon the commission of any imprisonable offence - Wounds or maims or disfigures or causes GBH or stupifies or renders unconscious any person or by any violent means renders any person incapable of resistance.
14
Q
Intent (Deliberate Act)
A
Intent means that an act or omission must be done deliberately. The act or omission must be more than involuntary or accidental
15
Q
Intent to produce a result
A
The second type of intent is an intent to produce a specific result. In this context result means “aim, object, or purpose”
16
Q
Intent (case law)
A
R v Collister
17
Q
Intent (R v Collister held)
A
Circumstantial evidence from which an offender’s Intent may be inferred can include:
- The offender’s actions and words before, during, and after the event
- The surrounding circumstamces
- The nature of the act itself
18
Q
In serious assault cases, additional circumstantial evidence that may assist in proving an offender’s intent may include:
A
- 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 head)
- the degree of resistance or helplessness of the victim (eg unconscious)
19
Q
Intent serious assault (case law)
A
R v Taisalika
20
Q
Intent
(R v Taisalika held)
A
The nature of the blow and the gash which it produces point strongly to the presence of the necessary intent
21
Q
Wound (case law)
A
R v Waters
22
Q
Wound
(R v Waters held)
A
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 the flow of blood and, in its occurance 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.
23
Q
Disfigures (case law)
A
R v Rapana and Murray
24
Q
Disfigures (R v Rapana and Murray held)
A
Disfigures covers not only permanent damage but also temporary damage
25
**Disfigures** (define)
To disfigure means "to deform or deface; to mar or alter the figure or appearance of a person."
26
**With Intent to Commit or Facilitate** (case law)
R v Tihi
27
**With Intent to Commit or Facilitate** (R v Tihi held)
In addition to one of the specific intents in paragraph (a) - (c) it must be shown that the offender **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.
28
**Intent to avoid arrest** (case law)
R v Wati
29
**Intent to avoid arrest** (R v Wati held)
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.
30
**Recklessness** established (case law)
Cameron v R
31
**Recklessness** (Cameron v R held)
Recklessness is established if:
(a) the defendant **recognized** that there was a **real possibility** that:
(i) his or her actions would bring about the proscribed result; **and/or**
(ii) that the proscribed circumstances existed **and**
(b) having regard to that risk those actions were unreasonable
32
**Recklessness** knowledge (case law)
R v Tipple
33
**Recklessness** (R v Tipple held)
Recklessness requires that the offender know of, or have a conscious appreciation of the relevant risk, and it may be said that it requires **a deliberate decision to run the risk**
34
**Injure** (define)
*s2, Crimes Act 1961*
To Injure means to cause actual bodily harm
35
**Injures/Bodily harm** (case law)
R v Donovan
36
**Injures/Bodily harm** (R v Donovan held)
'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 and trifling.
37
**Stupifies** (case law)
R v Sturm
38
**Stupifies** (R v Sturm held)
To stupify 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 the crime
39
**Grievous Bodily Harm** (case law)
DPP v Smith
40
**Grievous Bodily Harm** (DPP v Smith held)
"Bodily harm" needs no explanation and "grievous" means no more and no less than "really serious"
41
**Maiming** (define)
depriving another of the use of such of his members as may render him less able in fighting, either to defend himself or to annoy is adversary.
*Must be some degree of permanence.*
42
**Renders Incapable of Resistance**
(case law)
R v Crossan
43
**Renders Incapable of Resistance**
(R v Crossan held)
Incapable of resistance includes powerlessness of the will as well as a physical incapacity
44
**Violent means**
(case law)
R v Claridge
45
**Violent Means**
(R v Claridge held)
"violent means" is not limited to physical violence and may include threats of violence, depending on the circumstances.
46
**Aggravated Assault** (Act & Section)
Section 192(1)/(2), Crimes Act 1961
47
**Aggravated Assault**
192(1) (Elements)
- 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 the arrest or facilitate the flight of himself or of any other person upon the commission of any imprisonable offence
48
**Aggravated Assault** Section 192(2) (Elements)
- Assaults
- Any Constable **or** any person acting in aid of any Constable **or** any person acting in the lawful execution of any process
- with Intent to obstruct the person so assaulted in the execution of his duty.
49
**Assault** define
The act or intentionally 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 affect his or her purpose.
50
**Discharging a Firearm or Doing a Dangerous Act with Intent**
(Act & Section)
Section 198(1)/(2), Crimes Act 1961
51
**Discharging a Firearm or Doing a Dangerous Act with Intent** 198(1) (Elements)
- A person
- With Intent to do GBH
- (a) Discharges any firearm, airgun, or other similar weapon at any person **or**
(b) Sends or delivers to any person, or puts in place, any explosive or injurious substance or device **or**
(c) Sets fire to any property.
52
**Discharging a Firearm or Doing a Dangerous Act with Intent**
198(2) (Elements)
- A person
- With Intent to injure **or** with reckless disregard for the safety of others
- (a) Discharges any firearm, airgun, or other similar weapon at any person **or**
(b) Sends or delivers to any person, or puts in place, any explosive or injurious substance or device **or**
(c) Sets fire to any property.
53
**Body of the Victim** (case law)
R v Chan-Fook
54
**Body of the Victim** (R v Chan-Fook held)
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.**
55
**discharge a Firearm, Intent GBH** (case law)
R v Pekepo
56
**Discharge a Firearm, Intent GBH** (R v Pekepo held)
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.
57
Airgun (define)
(a) any air rifle
(b) any air pistol
(c) any **weapon** from which, by use of gas or compressed air (and not by force of explosive), any shot, bullet, missile, or other projectile can be discharged
58
**firearm** (define)
(a) means **anything** from which any shot, bullet, missile or other projectile can be **discharged by force of explosive.**
(b) includes-
(i) anything adapted so....
(ii) anything for the time being not capable.... but by completion or replacement of component or correction or repair of defect...
(iii) anything (being a firearm) which is dismantled
(iv) any specially dangerous airgun
59
**explosive** (define)
(a) **means 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**. And
(b)... includes gunpowder, nitroglycerin, dynamite, gun cotton, blasting powder, fulminate of mercury or other metals, colored flares, fog signals, fuses, rockets, percussion caps, detinators, cartridges, and ammunition of all descriptions
(c) any device, contrivance or article that uses (a) .... does not include a firearm
(d) does not include any firework as defined in section 2 of Hazardous Substances and New Organisms Act 1996.
60
**Property** (define)
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.
61
**Using any Firearm Against Law Enforcement Officer** (Act & Section)
Section 198A(1)/(2), Crimes Act 1961
62
**Using any Firearm Against Law Enforcement Officer** *198A(1)* (Elements)
- uses a firearm in any manner whatever
- against any constable **or** any traffic officer **or** any prison officer
- acting in the course of his/her duty
- knowing that person is a constabe/traffic officer/prison officer so acting
**or**
being reckless whether or not that person is a constable/traffic/prison officer so acting
63
**Using any Firearm Against Law Enforcement Officer** *198A(2)* (Elements)
- uses a firearm in **any manner whatever**
- with intent to to resist the lawful arrest or detention of himself or of any other person
64
**use a firearm in any manner whatever** (case law)
R v Swain
65
**use a firearm in any manner whatever** (R v Swain held)
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.
66
**Constable** (define)
(a) holds the office of constable (whether appointed as a constable under the Police Act 1958 or this Act) and
(b) includes a constable who holds any level of position within the New Zealand Police
67
**Knowing**
*Semester and Brookbanks*
Knowing or correctly believing... the defendant may believe something wrongly but cannot 'know' something that is false.
68
**Intent to resist arrest** (case law)
Fisher v R
69
**Intent to resist arrest** (Fisher v R held)
It is necessary in order to establish a charge under section 198A(2) for the Crown to **prove someone was attempting to arrest or detain him** because otherwise the element or mens rea of intending to resist lawful arrest or detention cannot be established
70
**Using any Firearm Against Law Enforcement Officer** (penalties)
Section 198A(1) - 14 years
Section 198A(2) - 10 years
71
**Discharging a Firearm or Doing a Dangerous Act with Intent** (penalty)
Section 198(1) - 14 years
Section 198(2) - 7 years
72
**Commission of an Imprisonable Offence with a Firearm** (Act & Section)
Section 198B, Crimes Act 1961
73
**Commission of an Imprisonable Offence with a Firearm** (Elements)
198B(1)(a)
- In committing any imprisonable offence
- uses any firearms
198B(1)(b)
- while committing any imprisonable offence
- Has any firearm with him or her
- in circumstances that prima facie show an intention to use it in connection with that imprisonable offence
74
**Possession** (case law)
R v Cox
75
**Possession** (R v Cox held)
Possession involves two... Elements.
The first, often called the **physical element**, is actual or potential physical custody or control
The second, often described as 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.
76
**prima facie** (case law)
Tuli v Police
77
**prima facie** (Tuli v Police held)
Prima facie circumstances are those which are sufficient to show or establish an intent in the absence of evidence to the contrary.
78
Pistol
any firearm that is designed or adapted to be held and fired with one hand; and includes any firearm that is less than 762mm in length
79
Restricted weapon schedule
(1) Anti-tank projectors and ammunition
(2) Grenade dischargers, grenade launchers and grenades containing explosives
(3) Incendiary grenades, including Molotov cocktail
(4) Machine carbines or guns, submachine carbines or guns and machine pistols
(5) mines of an explosive nature
(6) Mortars and ammo
(7) Rocket launchers and ammo
(8) Gas guns
(9) gas
80
Occupier or driver deemed to be in possession
*Section 66, Arms Act 1983*
For the purpose of this Act every person in occupation of any land or building or the driver of any vehicle... be deemed to be in possession of that firearm... unless he proves that is was not his property and that it was in the possession of some other person
81
**Robbery** (Act & Section)
Section 234(1), Crimes Act 1961
82
**Robbery** (elements)
- Theft
- Accompanied by violence **or** accompanied by threats of violence
- To any person **or** property
- used to extort the property stolen **or** to prevent or overcome resistance to it being stolen
83
**Theft** (elements)
- Dishonestly
- Without claim of right
- Takes
- Any property
- With intent to deprive any owner permanently of that property
84
**Aggravated Robbery** *GBH* (Act & Section)
Section 235(a), Crimes Act 1961
85
**Aggravated Robbery** *GBH* (elements)
- Robs any person
- at the time of, or immediately before, or immediately after the robbery
- Causes grievous bodily harm
- To any person
86
**Aggravated Robbery** *2 or more* (Act & Section)
Section 235(b), Crimes Act 1961
87
**Aggravated Robbery** *2 or more* (elements)
- being together with any other person or persons
- robs
- Any person
88
**Aggravated Robbery** *weapon* (Act & Section)
Section 235(c), Crimes Act 1961
89
**Aggravated Robbery** *weapon* (elements)
- being armed with any offensive weapon or instrument **or** any thing appearing to be such a weapon or instrument
- robs
- any person
90
**Assault with intent to rob** *GBH* (Act & Section)
Section 236(1)(a), Crimes Act 1961
91
**Assault with intent to rob** *GBH* (elements)
- with intent to rob any person
- causes grievous bodily harm to that person or any other person
92
**Assault with intent to rob** *weapon* (Act & Section)
Section 236(1)(b), Crimes Act 1961
93
**Assault with intent to rob** *weapon* (elements)
- with Intent to rob any person
- 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
94
**Assault with intent to rob** *2 or more* (Act & Section)
Section 236(1)(c), Crimes Act 1961
95
**Assault with intent to rob** *2 or more* (elements)
- with intent to rob any person
- being together with any other person or persons
- assaults that person or any other person
96
**Assault with intent to rob** *minor* (Act & Section)
Section 236(2), Crimes Act 1961
97
**Assault with intent to rob** *minor* (elements)
- Assaults any person
- With intent to rob that person or any other person
98
**Dishonestly** (define)
An **act or omission** 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.
99
**claim of right** (define)
a **belief at the time** of the act in a proprietary or possessor right in property **in relation to which offence is alleged to have been committed**, although that belief may be based on mistake of fact or of any matter of law other than the enactment against which the offence is alleged to have been committed.
100
Claim of right Defence *for robbery* (case law)
R v Skivington
101
**Claim of right defence** (R v Skivington held)
Larceny(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.
*(no theft, no robbery)*
102
**Robbery Completed** (case law)
R v Lapier
103
**Robbery Completed** (R v Lapier held)
Robbery is complete the instant the property is taken, even if possession by the thief is only momentary
104
Immediate return of property *robbery* (case law)
R v Peat
105
Immediate return of property (R v Peat held)
As in the case of theft, **the immediate return of goods** by the robber **does not purge the offence**, subject always to the necessary intent existing at the time of taking
106
**Ownership** stolen property (define)
*Section 218, Crimes Act 1961*
... a person is to be regarded as the owner of any property that is stolen if, at the time of the theft, that person has-
(a) possession or control of the property; or
(b) any interest in the property; or
(c) the right to take possession or control of the property
107
**accompanied by violence** *robbery* (case law)
R v Maihi
108
**accompanied by violence** (R v Maihi held)
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...
109
**acts not contemporaneous** *robbery* (case law)
R v Mitchell
110
**acts not contemporaneous** (R v Mitchell held)
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
111
**Violence** (case law)
Peneha v Police
112
**Violence** (Peneha v Police held)
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**
113
**Threats of Violence** (case law)
R v Broughton
114
**Threats of Violence** (R v Broughton held)
A threat of violence is **the manifestation of** an **intention to inflict violence unless** the money or property be handed over. The threat **may be direct or veiled**. It may be **conveyed by words or conduct** or a combination of both.
... whether or not the conduct complained of is capable of amounting to a threat of violence must be assessed in the context it occurred.
115
**Threats of Violence** (R v Broughton context)
- relative age of the parties
- their respective physiques
- their appearance
- their demeanour
- what was said and done by those involved
- the manner and setting in which the incident took place
116
Threat VS fear (case law)
R v Pacholko
117
Threat VS fear (R v Pacholko held)
"The actual presence or absence of fear 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'"
118
Physical Proximity (case law)
R v Joyce
119
Physical Proximity (R v Joyce held)
The Crown must establish that at least two persons were physically present at the time the robbery was committed or the assault occurred
120
Joint Enterprise (case law)
R v Galey
121
**Joint Enterprise** (R v Galey held)
"Being together" in the context of s235(b) involves "two or more persons having **common intention** to **use their combined force**, either in any event or as circumstances might require, **directly in the perpetration of the crime"**
122
**Anything appearing to be such**
(case law)
R v Bentham
123
**Anything appearing to be such**
(R v Bentham held)
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
124
**Blackmail** (Act & Section)
Section 237(1), Crimes Act 1961
125
**Blackmail** (Elements)
- A person
- 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 property
**or**
Endanger the safety of any person
- With intent to cause the person to whom the threat is made to act in accordance with the will of the person making the threat
- To obtain any benifit or cause loss to any person
126
Obtain (define)
Obtain or retain for himself or herself or for any other person
127
Benifit (define)
Includes a privilege, service, or benifit that has no ascertainable monetary value
128
Pecuniary advantage (define)
Economic advantage or a financial gain or benifit, an enhancement of a person's financial position
129
Privilege (define)
A special right or advantage and need not be a financial one
130
Valuable consideration (define)
Money or money's worth
131
Statutory Defence to Blackmail
Believed they were entitled to obtain benifit or cause loss
**and**
Making the threat in the circumstances is a reasonable and proper means of effecting his purpose
132
Blackmail (penalty)
*Section 238, Crimes Act 1961*
14 years imprisonment
133
**Demanding with Intent to Steal** (Act & Section)
Section 239(1)/(2), Crimes Act 1961
134
**Demanding with Intent to Steal** *Section 239(1)* (Elements)
- 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
135
**Demanding with Intent to Steal** *Section 239(2)* (Elements)
- With menaces or by any threat
- demands any property
- from any person
- With intent to steal it
136
Execute a document
"do what the law requires to give validity to the document. It is not confined to the signing or doing something to the face of the document."
Entry of data into a computer program may amount to "execution" of a document
137
Demand
a clear request made firmly
138
Menaces
words or conduct conveying a threat of something detrimental or unpleasant happening to the person to whom the threat is made
139
**Demanding with Intent to Steal** (penalties)
Section 239(1) - 14 years
Section 239(2) - 7 years
140
Investigation of Robbery
you may be informed
- before the incident of an intended robbery
- during or after the incident when a raid alarm at the premises goes off
- after the offender's have left the scene of the crime
141
Responding to intended Robbery
**Step 1** evaluate the reliability of the information
**Step 2** Consider obtaining telco/internet/social media data to corroborate info
**Step 3** Disseminate info (where appropriate) to O/C CIB, NIC, AOS, Comms, Air Support
**Step 4** NIA checks on suspects for firearms, criminal history, vehicles, address, family violence
**Step 5** obtain photos of suspects for briefing & door to door enquiries
**Step 6** Liase with victim and carefully examine scene (covert where possible)
**Step 7** obtain CCTV to get footage of pre-planning/recon
142
Robbery investigation priorities
- Secure the safety of all members of the Police and public
- prevent the crime
- contain the area of the offence
- gather evidence from the crime scene and preserve it
- establish and then eliminate suspects
- identify the offender
- locate the offender
- search the offender and their premises, confiscating and preserving any evidence
- establish what, if any, case exists for prosecution
- prepare files for prosecution
143
**Abduction** (Act & Section)
Section 208, Crimes Act 1961
144
**Abduction** (Elements)
- Unlawfully
- Takes away **or** detains
- A person
- Without their consent **or**
With consent obtained by fraud or duress
- With intent to:
(a) go through a form of marriage or civil union
**or**
(b) have sexual connection with the person
**or**
(c) cause the person to go through (a) or (b) with some other person
145
**Abduction** (penalty)
14 years
146
Crown must prove for Abduction
1. The defendant took away or detained a person
2. The taking or detention was intentional
3. The taking or detaining was unlawful
4. The taking or detention was without consent (or consent obtained by fraud or duress)
5. The defendant knew there was no consent to the taking or detention
6. The defendant intended to (a), (b), (c).
147
**Unlawfully**(define)
Without lawful justification, authority or excuse
(must prove beyond reasonable doubt)
148
**Taking away** (R v Wellard held)
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"**
149
**Taking away** (case law)
R v Wellard
150
**Taking away VS detaining** (case law)
R v Crossan
151
**Taking away VS detaining** (R v Crossan held)
**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.
152
**Detaining** (case law)
R v Pryce
153
**Detaining** (R v Pryce held)
Detaining is an **active consept** meaning to **"keep in confinement or custody"**. This is to be **contrasted to the passive concept or "harbouring** or mere failure to hand over.
154
**Consent** (case law and held)
*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
155
**Abduction** offence complete (case law)
R v Mohi
156
R v Mohi held
The offence is complete once there that's been a period of detention or a taking away **accompanied by the necessary intent**, regardless of whether that intent was carried out.
157
**Abduction** intent formed (case law)
R v Waaka
158
R v Waaka held
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 purpose of the section.
159
**Kidnapping** (Act & Section)
Section 209, Crimes Act 1961
160
**Kidnapping** (Elements)
- Unlawfully
- Takes away **or** Detains
- A person
- Without their consent **or** with consent obtained by fraud or duress
- (a) with intent to hold him or her for ransom or to service
**or**
(b) with intent to cause him or her to be confined or imprisoned
**or**
(c) with intent to cause him or her to be sent or taken out of New Zealand
161
Must prove for 209 conviction
1. Defendant took away or detained a person
2. Taking or detention was intentional or deliberate
3. Taking or detention was unlawful
4. Taking or detention was done without that person's consent (or obtained by fraud or duress)
5. Defendant knew there was no consent to the taking or detention
6. Defendant intended to (a), (b), or (c)
162
**Kidnapping** Intent and Knowledge (case law)
R v M
163
**Kidnapping** Intent and Knowledge (R v M held)
The Crown must establish that the accused intended to take away or detain the complainant and that he or she knew that the complainant was not consenting
164
Ransom (define)
A sum of money demanded or paid for the release of a person being held captive
165
Hold for service (define)
to keep the victim as a servant or slave
166
Confining (define)
"Confining" a person can include restricting their movement to within a geographical area, but also has a wider meaning that includes curtailing their activity and exercising control and influence over them
*note "to cause" suggests it is not necessary for the kidnapper to directly effect the confinement himself*
167
Imprison (define)
to put them in prison, or to confine them as if in prison. It has a narrower meaning than "confine" and may apply to being locked in a room or the boot of a car for example.
168
**Abduction or Young Person Under 16** (Act & Section)
Section 210(1)/(2)
169
**Abduction of Young Person Under 16** 210(1)
(Elements)
- With intent to deprive a parent or guardian or other person having lawful care or charge of a young person
- Unlawfully takes away **or** detains
- the young person
170
**Abduction of Young Person Under 16** 210(2)
(Elements)
- 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 lawful care or charge of him or her of possession or him or her.
171
**R v Forrest & Forrest** held
The best evidence possible in the circumstances should be adduced by the prosecution in proof of [the victim's] age.
172
For 210(1) the Crown must prove...
1. The defendant took, enticed or detained a person under the age of 16 years
2. The taking, enticing or detention was intentional
3. The taking, enticing or detention was from a person who had lawful care, or charge of the young person
4. The defendant knew the other person had lawful care, or charge of the young person
5. The taking, enticing or detention was unlawful
6. It was done with Intent to deprive a parent, guardian or other person having lawful care or charge of the young person of possession of that young person
173
For 210(2) the Crown must prove...
1. The defendant received a person under the age of 16 years
2. The receiving was intentional
3. The defendant knew the young person had been unlawfully taken or enticed away or detained by another from a parent, guardian or other person having lawful care or charge of him or her of the possession of that young person
4. The defendant intended by reason of the receiving to deprive a parent, guardian or other person having lawful care or charge of him or her of the possession of that young person
174
Depriving a parent of possession (case law)
R v Chartrand
175
Depriving a parent of possession (R v Chartrand held)
It was sufficient that the taker knows or forsees that his or her actions would be certain or substantially certain to result in the parents (guardians etc.) being deprived of the ability to exercise control over the child
whether the defendant may have had an innocent motive, or intended to interfere with the possession for a very short period of time is beside the point
It is not necessary to prove the accused intended a permanent deprivation
176
**Entice** (define)
To "entice" means to tempt, persuade, or attract by arousing hope or desire.
177
**Consent of a young person is no defense** (ss 208 & 209)
*Section 209A*
For the purposes of sections 208 and 209, a person under the age of 16 years cannot consent to being taken away or detained.
178
**Consent of a young person is no defense** (s 210)
*Section 210(3)(a)*
For the purposes of subsection (1) and (2), it is immaterial whether the young person consents, or is taken or goes or is received at his or her own suggestion
179
**Belief that a person is over 16 is no defence** (s 210)
*Section 210(3)(b)*
For the purposes of subsection (1) and (2), it is immaterial whether the offender believes the young person to be of or over the age of 16.
180
**No presumption because of age**
*Section 127, Crimes Act 1961*
There is no presumption of law that a person is incapable of sexual connection because of his or her age
181
**Statutory defence of good faith** (ss 209 & 210)
*Section 210A, Crimes Act 1961*
A person who **claims in good faith** a right to the possession of a young person under the age of 16 years cannot be convicted of an offence against section 209 or 210 because he or she gets possession of the young person.
182
Section 210(1)&(2) penalties
7 years imprisonment
183
**Smuggling Migrants** (Act & Section)
Section 98C, Crimes Act 1961
184
**Smuggling Migrants** (Elements)
- Arranges for an unauthorized migrant to (1)enter **or** (2)be brought to New Zealand or any other state.
- for a material benifit **and**
- knows the person is an unauthorized migrant **or**
is reckless as to whether the person is an unauthorized migrant.
- (2) **and** knows that the person intents to try to enter the state **or**
is reckless as to whether the person intends to enter the state
185
**People Trafficking** (Act & Section)
Section 98D, Crimes Act 1961
186
**People Trafficking** (Elements)
**(1)**
- arranges, organizes, or procures
*(a)*
- entry or exit of a person to New Zealand or any other state
*(b)*
- the reception, recruitment, transport, transfer, concealment, or harbouring of a person in New Zealand or any other state.
(i)
- for the purpose of exploiting or facilitating the exploitation of the person **or**
(ii)
Knowing that it involved 1 or more acts of coercion, or deception, or both.
187
**exploit** (define)
to cause or be caused by an act of deception or coercion the person to be involved in
(a) prostitution or other sexual services
(b) slavery, practices similar to slavery, servitude, forced labor, or forced services
(c) the removal of organs
188
**Migrant Smuggling / People Trafficking** (penalties)
20 years imprisonment & $500,000 fine.
189
**Migrant Smuggling / People Trafficking** (misc other)
- does not need to be successful
- must have Attorney-General's consent to prosecute (98F)
190
**Investigative Approachs to People Trafficking**
**Reactive investigation**
Victim led and often initiated by an approach to Police by the victim or an agent of the victim.
**Proactive Approach**
Police led. A combination of standard investigation techniques supplemented by intelligence resources to identify and locate traffickers, gather evidence and prosecute.
**Disruptive Investigation**
Appropriate in circumstances where the level of risk to the victim demands an immediate response, and the other two options are not practicable.
191
**5 Phases of a Blackmail Investigation**
- Initial reporting phase
- Mobilization phase
- Consolidation phase
- Investigation and operational phase
investigate and identify suspects, threats, negotiation, payment, intervention/arrest
- Reactive phase
