VIOLENCE - SERIOUS OFFENCES Flashcards
name the key liabilities you must remember for the serious violence liabilities
Name the key case laws for the serious violence offences
DPP v Smith
Bodily harm needs no explanation and grievous means no more and no less than really serious
GBH = harm that is really serious.
(GBH)
R v Waters
A breaking of the skin would be commonly regarded as a characteristic of a wound. The breaking of the skin will be normally evidenced by a flow of blood and, in its 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)
R v Cox
possession
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)
R v Forrest and Forrest
The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victim’s age
(age)
Simester and Brookbanks
Knowledge means knowing or correctly believing. The defendant may believe something wrongly but cannot “know” something that is false
(knowledge)
Hayes v R
Holder
R v Misic
Holder
R v Broughton
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)
R v Joyce
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)
R v Galey
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.
R v Bentham
The weapon possessed must under definition be a thing. A person’s hands or fingers are not a thing.
(anything appearing to be such)
Define intent
Intent has two parts; an intention to commit the act and secondly, an intention to get a specific result.
Define doctrine of transferred malice
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.
Define GBH
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
Define injures
Section 2, Crimes Act 1961
Means to cause actual bodily harm.
Define maiming
Mutilating, crippling or disabling a body part
Define disfigures
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.
Define person
Person is gender neutral. Proven by judicial notice or circumstantial evidence.
Define the two fold test that must be proven for recklessness
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).
Define stupefies
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
Define renders unconscious
Holder
Define assault
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
Define consent
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
Define unlawfully
Without lawful justification, authority or excuse
Define property
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
Define offensive weapon
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
What are the three acts under s198?
- discharging a firearm at a person
- delivering explosives
- setting fire to property
Unlike other serious violent offences, what do you NOT have to prove under s198?
That the victim suffered actual bodily harm.
True or false? A Molotov cocktail is a restricted weapon.
True
Define claim of right
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.
Define explosive
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
Define firearm
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
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?
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.
Strangulation or suffocation Section 189, CA1961 - what is the offence and what are the key points.
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.
In serious assault cases, what circumstantial evidence can be provided to assist with proving intent?
- 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.
What re the two major piece of case law for aggravated wounding
R v Tihi
R v Wati
Outline the penalties for the offences under each section:
188(1)
188(2)
189(1)
189(2)
191(1)
191(2)
188(1) = 14yrs 188(2) = 7
189(1) = 10 189(2) = 5
191(1) = 14 191(2) = 7
R v Collister
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)
R v Taisalika
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)
