VIOLENCE - SERIOUS OFFENCES

Question 1

name the key liabilities you must remember for the serious violence liabilities

Question 2

Name the key case laws for the serious violence offences

Question 3

DPP v Smith

Answer 3

Bodily harm needs no explanation and grievous means no more and no less than really serious
GBH = harm that is really serious.

(GBH)

Question 4

R v Waters

Answer 4

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 occurrence 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.

(wounding)

Question 5

R v Cox

possession

Answer 5

Possession involves two elements. The first, the physical element, is actual or potential physical custody or control. The second, 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.

Actual possession arises where a thing in question is in a persons physical custody or control. It may be actual or potential control.

(possession)

Question 6

R v Forrest and Forrest

Answer 6

The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victim’s age

(age)

Question 7

Simester and Brookbanks

Answer 7

Knowledge means knowing or correctly believing. The defendant may believe something wrongly but cannot “know” something that is false

(knowledge)

Question 8

Hayes v R

Answer 8

Holder

Question 9

R v Misic

Answer 9

Holder

Question 10

R v Broughton

Answer 10

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. May be conveyed by words or conduct.

(Threats of violence)

Question 11

R v Joyce

Answer 11

The Crown must establish that at least two or more people were physically resent at the time the robbery was committed or the assault occurred

Being together requires that two or more people are physically present and act together in the commission of an offence - present is not enough, you have to be an active participant to be liable.

(being together with)

Question 12

R v Galey

Answer 12

Being together in the context of section 235(b) involves two or more persons having the common intention to use their combined force, either in any event or as circumstances might require, directly in the perpetration of the crime.

Question 13

R v Bentham

Answer 13

The weapon possessed must under definition be a thing. A person’s hands or fingers are not a thing.

(anything appearing to be such)

Question 14

Define intent

Answer 14

Intent has two parts; an intention to commit the act and secondly, an intention to get a specific result.

Question 15

Define doctrine of transferred malice

Answer 15

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

Question 16

Define GBH

Answer 16

GBH can be defined simply as harm that is really serious

DPP v Smith
‘Bodily harm’ needs no explanation and ‘grievous’ means no more and no less than ‘really serious’

Grievous refers to the degree of harm, rather than how the harm is caused or what sort of harm it is. It need not be life threatening or permanent harm

Question 17

Define injures

Answer 17

Section 2, Crimes Act 1961

Means to cause actual bodily harm.

Question 18

Define maiming

Answer 18

Mutilating, crippling or disabling a body part

Question 19

Define disfigures

Answer 19

To deform or deface. To alter the appearance of a person

R v Rapana and Murray
Disfigures covers not only permanent but also temporary damage.

Question 20

Define person

Answer 20

Person is gender neutral. Proven by judicial notice or circumstantial evidence.

Question 21

Define the two fold test that must be proven for recklessness

Answer 21

It must be proved not only that the defendant was aware of the risk and proceeded regardless (a subjective test), but also that it was unreasonable for him to do so (an objective test).

Question 22

Define stupefies

Answer 22

To stupefy means to cause an effect on the mind or nervous system of a person. This interferes with their mental or physical ability to act
R v Sturm

Question 23

Define renders unconscious

Answer 23

Holder

Question 24

Define assault

Answer 24

Section 2, CA1961

Assault means the act of 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, present ability to effect his or her purpose

Question 25

Define consent

Answer 25

A persons voluntary and conscious agreement to do something proposed or desired by another person.

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 judgment

Question 26

Define unlawfully

Answer 26

Without lawful justification, authority or excuse

Question 27

Define property

Answer 27

Section 2, CA1961

Includes real or personal property, and any estate or interest in any real or personal property, money, electricity, and any debt, and anything in action, and any other right or interest

Question 28

Define offensive weapon

Answer 28

Section 202A(1), CA1961
An article made or altered for use for causing bodily injury, or intended by the person having it with him for such use

Instrument is not defined by statute but may be read to mean any item intended to be used as a weapon or to intimidate and overbear the victim’s will to resist

Question 29

What are the three acts under s198?

Answer 29

• discharging a firearm at a person
• delivering explosives
• setting fire to property

Question 30

Unlike other serious violent offences, what do you NOT have to prove under s198?

Answer 30

That the victim suffered actual bodily harm.

Question 31

True or false? A Molotov cocktail is a restricted weapon.

Answer 31

True

Question 32

Define claim of right

Answer 32

Section 2, CA1961

In relation to any act, means a belief 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.

Question 33

Define explosive

Answer 33

Section 2, Arms Act 1983

Any substance or mixture or combination of substances which in its normal state is capable either of decomposition at such rapid rate as to result in an explosion or of producing a pyrotechnic effect.
Includes: gun powder, gelignite, detonators
Does not include: firearms, fireworks

Question 34

Define firearm

Answer 34

Section 2, Arms Act 1983
Firearm

(a) Means anything from which any shot, bullet, missile or other projectile can be discharged by force of explosive, and
(b) Includes
(i) anything that has been adapted so that it can be used to discharge a shot, bullet, missile or other projectile by force of explosive, and
(ii) anything which is not for the time being capable of discharging any shot, bullet, missile or other projectile but which, by its completion or the replacement of any component part or parts or the correction or repair of any defect or defects, would be a firearm within the meaning of paragraph (a) of this definition or subparagraph (i) of this paragraph, and
(iii) Anything (being a firearm within the meaning of paragraph (a) of this definition or subparagraph (i) of this paragraph) which is for the time being dismantled or partially dismantled, and
(iv) Any specially dangerous airgun

Question 35

Can a finger up a jersey pretending to be a gun be defined as an instrument or an item appearing to be an offensive weapon?

Answer 35

A “thing” does not include a part of a person’s body.

In R v Bentham the defendant broke into a house where the victim was asleep in bed and put his hand under his jacket, pushing the material out to give the impression he had a gun. He threatened to shoot the victim, who handed over money as a consequence of the threat. The House of Lords held that the term “any thing” did not include the defendant’s unsevered hand.

Question 36

Strangulation or suffocation Section 189, CA1961 - what is the offence and what are the key points.

Answer 36

Intentionally or recklessly impedes another person’s normal breathing, blood circulation, or both (manually or by using an aid) by doing all or any of:

• Blocking that other person’s nose, mouth, or both
• Applying pressure on, or to, that other person’s throat, neck, or both.

Question 37

In serious assault cases, what circumstantial evidence can be provided to assist with proving intent?

Answer 37

• Prior threats.
• Premeditation.
• The use of a weapon.
• Weapons purposely brought or opportunistic.
• Number of blows.
• Degree of force used.
• Body parts targeted.
• Helplessness or degree of resistance from victim.

Question 38

What re the two major piece of case law for aggravated wounding

Answer 38

R v Tihi

R v Wati

Question 39

Outline the penalties for the offences under each section:

188(1)
188(2)

189(1)
189(2)

191(1)
191(2)

Answer 39

188(1) = 14yrs
188(2) = 7

189(1) = 10 
189(2) = 5 

191(1) = 14 
191(2) = 7

Question 40

R v Collister

Answer 40

Intent inferred through the circumstances. E.g:

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

(intent)

Question 41

R v Taisalika

Answer 41

The nature of the blow and the gash which it produced on the complainant’s head would point strongly to the presence of the necessary intent

(act and result show intent)