VIOLENCE OFFENCESS Flashcards
What are the topics covered in the violence offences?
Assaults Robbery Kidnapping and Ransom Blackmail People trafficking and People Smuggling
R v Taisalika
The nature of the blow and the gash produced point strongly to the presence of the necessary intent.
R v Rapana
Disfigure covers not only permanent damage by temporary damage.
R v Waters
A breaking of the skin would be commonly regarded as characteristic of a wound. The breaking of the skin will be normally evidenced by a flow of blood and, in its occurrence at the site of the blow or impact, the wound will more often than not be external. But there are those cases where the bleeding which evidences the separation of tissues may be internal.
R v Donovan
Bodily harm includes any hurt or injury calculated to interfere with the health and comfort of the victim. it need not be permanent, but must no doubt be more than merely transitory and trifling.
Cameron v R
Recklessness is established if
a) the defendant recognised that there was a real possibility that
i) his or her actions would bring about the proscribed result,
ii) that the proscribed circumstances existed and
b) Having regard to that risk those actions were unreasonable.
Name an offence where the age of the victim is relevant?
Assaults Child and male and female
s194 C.A. 1961
R v Hunt
The defendant was breaking into another mans stables and was caught by the property owner and the servant. Hunt attempted to strike the property owner with the knife but the ensuing struggle resulted in a superficial unintentional superficial cut to the servants wrist. (It is the intent that is relevant here)
Owen v Residential Health Management Unit
In this matter the Court highlights that bodily harm may include psychiatric injury. Clinical evidence will be required for this.
R v Donaldson
Donald Duck ——
This is also an example of psychological impact of bodily harm being on the mind where the victim suffered emotionally learning that he had sexual acts performed on him while he was unconscious.
R v Mwai
This is the HIV bodily injury matter were the harm was delayed and was given to multiple woman.
R v Scott and Lewis
(Scott makes love to Brenda Lewis)
Two defendants punched the victim in the head multiple times - The victim whom was on anti coagulant drugs at. the time sustained injuries that required surgery for the blood clot on the brain.
Describe the doctrine of transferred malice?
It is not necessary that the person suffering the harm was 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, despite the wrong target being struck.
What does injury mean?
To injure means to cause actual bodily injury.
R v Chan-Fook
(Fook me) persons body includes parts of the body, including his organs, nervous system and the brain. Therefore bodily injury mean mental and other faculties.
This may also mean psychiatric injury as this is an injury on the brain. (Note that emotions were not the same in the Courts view)
R v Tipple
RROCARRDD
Recklessness requires that. the offender know of or have a conscious appreciation of the relevant risk, and it maybe said that requires a deliberate decision to run the risk.
R v Mcarthur
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 be more than transitory and trifling.
What are the two case laws for aggravated offences?
R v Tihi and R v Wati
R v Tihi
In additional to one of the specific intents outlined in paragraphs (a)-(c) it must be shown that the offender meant to cause the specified harm and foresaw that the actions undertaken by him were likely to expose others to the risk of suffering it.
R v Wati
There must be proof of the commission or attempted commission of a crime either by the person committing the assault or by the person whose arrest or flight he intends to avoid or facilitate.
What is the two fold test under section 191?
Relates to R v Tihi -
1) The defendant intended to facilitate the commission of an imprisonable offence (or one of the other intents specified under (a)(b)(c) and
2) He or she intended to cause the specified harm or was reckless as to that risk.
What offences may a man whom threatens a woman with a gun to make her stop struggling and submit to being raped can be charged with?
Sexual violation by rape
Aggravated wounding - he is rendering her incapable by any violent means. (R v Crossan)
R v Strum
(I like to strum my guitar)
To stupefy mean to cause an effect on the mind or nervous system of a person that seriously interferes with that persons mental and physical ability to act in any way which may hinder the intended crime.
By any violent means renders any person incapable of resistance?
Violent means - includes the application of force that physically incapacitates a person, such as tying the victims hands and feet or inflicting debilitating injuries. .
R v Claridge
The defendant attempted to hit the prison officer on the head with an iron bar while attempting to escape from prison. The prison officer blocked the blow to the head but fell from the prison causing a broken ankle. The defendant was not successful in arguing that the injuries were not a direct result of the intended assault.
What are the ingredients for aggravated assault?
Aggravated Assault (3 years)
S192(1) a b or c C.A. 1961
Everyone
With intent
a) To commit or facilitate the commission of any any imprisonable offence or
b) To avoid the detection of himself or any other person in the commission of any imprisonable offence.
c) To avoid arrest or facilitate the flight of himself or any other person upon the commission or attempted commission fo any imprisonable offence.
Assaults
Another person
What are the ingredients for aggravated assault on a Police officer?
Aggravated Assault (3 years)
s192(2)
Everyone
Assaults a Constable or any person acting in aid of a constable or any person in the lawful execution of any process
With intent to obstruct the person so assaulted in the execution of his duty.
R v Pekepo
A reckless discharge of a firearm in a general direction of a passer by who happens to be hit is not sufficient proof. An intention to shoot that person must be established.
What are the three mens rea under s198
- Intent to do GHB
- Intent to injure
- Reckless disregard for the safety of others
What are the three actus reus under s198
- Discharging a firearm at a person
- Delivering explosives
- Setting fire to property
What does discharge mean?
To fire or shoot.
What is the primary difference between a firearm and an airgun?
The method of propelling. The firearm is discharge by means of explosive and an air gun is discharging by means of compressed gas.
R v Fitzgerld
Relates to the gang pad that had an injurious device to the perimeter fence - This was not live at the time so did not meet the threshold but if it was live this could have been an injurious device.
Name the ingredients for s198(1)(c) offence which Discharging Firearm of Doing a Dangerous Act With Intent?
WITH INTENT TO DO GBH
SETS FIRE TO ANY PROPERTY
(Sets fire has two elements the first is the damage the second is the damage that was caused by the fire)
What is the definition of property?
Any real or personal property estate or any interest in any real or personal property, money, electricity and any debt and anything in action, and any other right or interest.
R v Swain (Must Know)
To deliberately or purposely remove a sawn-off shot gun 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 C.A. 1961 (The swainaice removed the shot gun from the bag and thus shows a clear use of the firearm) - pertains to the law enforcement officer offences.
Police v Parker
A firearm was presented at a Police Officer and the defendant had his finger on the trigger of the loaded firearm. It was held that this was using a firearm in whatever manner.
What is the definition of a Constable?
Under S4 of the Policing Act 2008 a Constable is -
a) Holds the office of a 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 New Zealand Police.
Acting in the course of duty refers to what points?
PPPDAK P rotecting life P protecting property P preventing crime D detecting offences A Apprehending offenders K - keeping the peace (The defendant must know that the person concerned is a Police officer) Guilty knowledge)
Describe knowing in relation to Simester and Brookbanks?
Knowing or correctly believing ….. the defendant may believe something wrongly, but cannot know something to be false.
Fisher v R (Must know)
It is necessary in order to establish a charge under section 198A 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.
R v Cox (Possession)
Possession involves two elements
1) The first is often called the physical element which is the actual or potential physical custody or control.
2) The second often described as the mental element it is the combination of knowledge and intention. Knowledge in the sense of awareness by the accused that the substance is in his possession and an intention to exercise possession.
R v Manapouri
Court found that two or more people can be charged in relation to a single firearm if each had an appropriate degree of control over it.
Tuli v Police
Prima Fasie circumstances - are those which sufficiently
show or establish an intent in the absence of evidence to the contrary.
R v Parker
Use any manner is to contemplate a situation of actually firing the weapon and to present a rifle too. I think equivalent to or means the same thing.
Military style semi automatic firearm MSSA
Section 2 Arms Act 1983
A firearm other than a pistol
a) A semi-automatic firearm having one or more of the following feature
i) A folding telescopic butt.
ii) A magazine designed to hold 0.22 inch rimfire cartridges that are capable of holding over 15 rounds or is detachable and by appearance indicates that it is capable of holding more that 15 cartridges.
iii) A magazine other than one designed to hold .22 inch
rimfire cartridges that is capable of holding more than 7 cartridges or is detachable and by appearance indicates that it is capable of holding more than 10 cartridges.
iv) Bayonet lugs.
v) A flash suppressor
vi) A component of a kind defined or described by an oder under section 74A as a pistol grip for the purposes of the definition.
b) Make and model
c) Description declared.
d) Feature of a kind defined.
Pistol
S2 Arms Act 1983
Pistol means any firearm that is designed or adapted to be held and fired with one hand and includes any firearm that is under 762mm in length.
Restricted Weapon
Means any weapon, whether a firearm or not, declared by the Governor General by order in Council made under Section 4 of this Act, to be a restricted weapon.
List some restricted weapons from the schedule
- Anti tank, projectors and ammunition therefore
- Grenade discharger, launcher and grenades containing explosives
- Incendiary grenades, including thee type commonly known as molotov cocktail and consisting of
a) a container of container, the only or principal contents of which is an inflammable liquid or mixture and a means of ignition of the inflammable liquid whether by means of wick, an explosive or other device a fuse or chemical ect……
Occupier or driver deemed to be in possession
Under s66 of the Arms Act 1982 The occupier of the premises or driver of the vehicle deemed to be in possession of the firearms, airgun, pistol ect - Unless he/she proves that it was not his property and that it was the possession of some other person.
Wounding with intent is an offence under s188 of the Crimes Act 1961. Subsection (1) and (2) both relate to the victims actions that result in wounding, maiming, disfiguring or grievous bodily harm to the victim. What is the difference between the two sections?
The intent is the difference - der subsection (1) the intent is an intentional and deliberate act to achieve a specific result that was not involuntary or accident. Under subsection (2) the intent pertains a recklessness having foresight for the dangerous consequences and still taking the risk.
In s191 of the Crimes Act 1961, the offender causes harm to the victim in the process of committing an imprisonable offence. Harm is caused for one of three intents. Name the three intents?
With intent
a) To commit or facilitate the commission of an imprisonable offence.
b) To avoid detection of himself or any other person in the commission of any imprisonable offence
c) To avoid arrest of facilitate flight of himself or any other person in the commission or attempted commission of any imprisonable offence.
What was held in R v Crossan
Takes away and detain are separate and distinct offences - Incapable of resistance includes powerlessness of the will as well as physical incapacity. TWO THING INCAPABLE OF RESISTANCE INCLUDES POWERLESSNESS OF THE WILL AS WELL AS PHYSICAL INCAPACITY.
Section 198(1) C.A. 1961 discharging a firearm or doing a dangerous act with intent sets out three offences. Summarise those offences
a) discharging a firearm, airgun or similar weapon
b) Sends to any person, delivers to any person or puts in place. (Any explosive or injurious device)
c) Set fire to any property
R v Skivington
Claim of right is a defence to robbery
R v Laiper
Robbery is complete the instant the property is taken, even is momentary.
R v Peat
Return doesn’t negate the offence of robbery or theft.
R v Cox
Consent must be voluntary free and informed… voluntary and freely given by a person in a position to form a rational judgement.
R v Maihi
There must be a nexus or connection between the act of stealing and the threat of violence. Both must be present however the term does not require the act of stealing and the threat be made contemporaneously.
R v Mitchell
Previously made threats on the victims’ mind, assessed by fact and degree in each case.
Peneha v Police
Sufficient that the defendants acts forcibly interfere with the personal freedom, or forcible powerful or violent action or motion
R v Broughton
Threats maybe direct or veiled conveyed by conduct or words or both. Absence of fear by the victim does not negate the offence.
Dishonestly?
in relation to an act or omission, means done or omitted without a belief that there was expressed or implied consent to, or authority for the act or omission from a person entitled to give such consent or authority.
Claim of Right?
Claim of right in relation to any act or omission, means at the time of the act in a proprietary 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.
What are the four clear points of claim of right?
1) The belief must be in the proprietary or possessory right in property.
2) The belief must be about the rights of property to which the the offence is alleged to have been committed.
3) The belief must be held at the time of the conduct alleged to constitute the offence.
4) The belief must be actually held by the defendant. The belief is not required to be reasonable or be reasonable held based on ignorance or mistake.
R v Butler
Relates to the offender waiting in the carpark until the owner had shut up shop he confronted the owner wearing a balaclava stealing the victims brief case. Held the sudden appearance or a tall man wearing a balaclava amounted to a threat of violence.
R v Newell
The defendant confronted thee security guard in the parking lot with the meat that was stolen and swung a knife at the security guard dropping the meat. Robbery was not complete as there was no nexus between the stealing and the further actions - aggravated wounding would have been more appropriate charge in this matter.
R v Macro
Extortion implies an overbearing of the victims will. Thus if threats have not in fact affected the will of the victim then robbery is not complete. It was held that if the victim knows that the Police are ready to step in a prevent the actual infliction of harm and therefore unaffected by threats made by the accused there will be no robbery.
DDP v Smith
Bodily harm needs no explanation and grievous mean no more and no less than really serious.
R v Joyce
The crown must establish that at least two persons were physically present at the time the robbery was committed and the assault occurred. They were rejoicing togethert
R v Galey
Being together in the context of 235(b) involves two or more persons having a common intention to use their combined force, either in any event or as circumstances might require directly in the perpetration of the crime.
R v Betham
A finger or hand is not a thing.
What are the five phases of the blackmail investigation˘
IMCIR I - Initial report M - Mobilisation phase C - consolidation phase I - Investigation and operation phase R - reactive phase
Blackmail
s237 C.A. 1961
- EVERYONE
- THREATENS, EXPRESSLY OR IMPLIED TO MAKE ANY ACCUSATION AGAINST ANY PERSON WHETHER LIVING OR DEAD
- TO DISCLOSE SOMETHING ABOUT THAT PERSON WHETHER LIVING OR DEAD
- TO CUASE SERIOUS DAMAGE TO PROPERTY OR ENDANGER THE SAEFTY OF ANY PERSON WITH INTEN
- TO CUASE THE PERSON TO WHOM THE THREAT IS MADE TO ACT IN ACCORDANCE WITH THE WILL OF THE PERSON MAKING THE THREAT AND
- TO OBATIN ANY BENEFIT OR TO CAUSE LOSS TO ANY OTHER PERSON
R v Wyatt
The threat does not need to be overt but maybe subtle
WYATT IS A SUBTLE LITTLE DOG
R v Marshall
When the suspect knowingly and intentionally passes a threat made to another. (This threat to disclose does not need to be conveyed directly provided it is conveyed to the victim)
What is an accusation?
An allegation that a person is guilty of alleged criminal offending. It is immaterial whether or not the accusation is true or false.
Describe disclosure
Pertaining to blackmail - disclosure does not need to relate to criminal offending and will extend to revelation of information which could cause serious embarrassment or emotional distress.
R v Redman
Disclosure does not need to relate to the person from who the demand is made.
s307 C.A. 1961?
Threatening to destroy property. ( 3 YEARS )
- A PERSON
- SENDS OR CAUSES TO BE RECEIVED KNOWING THE CONTENTS THERE OF
- ANY LETTER OR WRITING
- THREATENING TO DESTROY PROPERTY OR DAMAGE OR INJURE ANY ANIMAL.
s306 C.A. 1961
THREATENING TO KILL OR DO GBH (7 YEARS)
- A PERSON
- THREATS TO KILL A PERSON OR GBH
- TO ANY PERSON
- SENDS OR CAUSES TO BE RECEIVED - KNOWING THE CONTENTS THEREOF
- ANY LETTER OR WRITING CONTAINING ANY THREAT TO KILL OR DO GBH TO ANY PERSON
Describe benefit?
The term benefit (s237) Doesn’t require financial elements but includes a privilege, service that has no ascertainable monetary value.
Describe pecuniary advantage?
Means an economic advantage or financial gain or benefit - an enhancement to someones financial position.
Describe a privilege?
Means a special right or advantage and need not be financial one. Using someones gym membership or library card.
Valuable consideration?
Means money or moneys’ worth.
What is the statutory defence for blackmail?
s237(2) - It is a claim of right or if you show that they are entitled to obtain benefit or cause loss. Meaning the threat was reasonable and proper means for obtaining benefit. (Case law pertaining to this matter R V Marshall - held that a belief that the person making the threat that they are entitled to the benefit is not a defence in itself unless it is also reasonable and proper.
s239 C.A. 1961
DEMAND WITH INTENT TO STEAL s239 C.A. 1961 - A PERSON - WITHOUT CLAIM OF RIGHT - BY FORCE OR WITH ANY THREAT - COMPELS ANY PERSON TO - EXECUTE, ENDORSE, MAKE, ACCEPT, ALTER, DETROY - ANY DOCUMENT CAPABLE OF CONFERRING PECUNIARY ADVANTAGE - WITH INTENT TO OBTAIN BENEFIT
(alternative to robbery as this is a stand over situation)
The defendant must be compel the MEEDAA
Make, Endorse, execute, destroy alter or accept. Threats don’t have to be made to the victim but maybe someone else.
Menaces or any threat?
There is no clear distinction between the two but the conduct conveys a threat of something detrimental or unpleasant happening to a person.
Hirani v Hirani
A young Indian woman successful sought a divorce after being forced by her family to enter into an arranged marriage.
R v Waaka
It must be more than a fleeting or passing thought. There must be a clear intent and purpose to effect the act. Furthermore intent may be formed at the time of the taking away. If 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.
R v M
The crown must prove that the accused intended to take away and detain the complaint and that he or she knew that the complaint was not consenting.
What other charges may you consider under in relation to s210(1) and (2) offences?
s78 Care of children act 2004 Contravening a parenting order.
s80 Care of children act 2004 Taking a child from NZ
s210 (3)(a)
It is immaterial that the child consents to or even instigates the departure.
s210(3)(b)
That the offender believes that the young person is over 16 years old.
What is the defence for kidnapping?
A claim of good faith - That the defendant did not believe that there was an issue with possession at the time of receiving the person.
List the three intents for kidnapping?
s208
With intent
a) To hold him or her fro service or ransom
b) To cause him or her to be confined or imprisoned.
c) To cause him or her to be sent or taken out of NZ
R v Crossan - what was held?
Taking away and detaining are two separate and distinct offences The first is the taking the victim away and the second is detaining against her will.
What is the difference between people smuggling and people trafficking?
Consent - people smuggling but people trafficking is done by duress or trickery.
s98C Crimes Act 1961
Smuggling Migrants
s98C C.A. 1961
Everyone who arranges for an unauthorised migrant to enter NZ and any other state if he or she does for a material benefit either knows the person or is reckless as to whether the person is an unauthorised migrant.
S98D Crimes Act 1961
Trafficking in Persons
s98D C.A. 1961
Everyone is liable who arranges or organises or procures entry or EXIT of the person out of NZ or any other state.
For the purpose of exploiting or facilitating the exploitation of the person knowing the entry or exit of the person involves 1 or more acts of coercion against the person or one or more acts of deception of the person or both.
What is the Police response to people trafficking and migrant smuggling?
P x 3
Prevention
Protection
Prosecution
What are three steps of the investigative approach to people trafficking?
Reactive Approach - Victim lead
Proactive Approach - Police lead
Disruptive Approach - Victim risk to consider through intelligence
Do you need approval from the Governor General to charge for migrant smuggling and people trafficking?
Yes but you do not have to have permission to arrest or oppose bail.
