Case Law

Question 1

R v Crossan [1943]

Answer 1

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”.

Question 2

Kidnapping

R v Wellard [1978]

Answer 2

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”.

Question 3

Detaining

R v Pryce [1972]

Answer 3

Detaining is an active concept

Meaning to “keep in confinement or custody”.

This is to be contrasted to the passive concept

Of “harbouring”

Or mere failure to hand
over.

Question 4

R v Cox 7/11/96

Answer 4

Consent must be “full, voluntary, free and informed … freely and voluntarily given
by a person in a position to form a rational judgment”..

Question 5

Taking Away

R v Mohi [1982]

Answer 5

The offence is committed at the time of taking away

So long as there is, at that moment

The necessary intent.

It has never been regarded as necessary …

That the Crown should show the intent was carried out.

Question 6

R v Cox [1990] (Regarding Possession)

Answer 6

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.

Question 7

R v Forrest and Forrest [1970]

Answer 7

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

Question 8

Further notes on R v Forrest and Forrest

Answer 8

In R v Forrest & Forrest13 two men were charged with having sexual
intercourse with a 14-year-old girl who had run away from Child Welfare
custody. At trial the girl produced her birth certificate and gave evidence
herself that she was the person named in the certificate. The men successfully
appealed their convictions on the grounds that the Crown had not adequately
proved the girl’s age.

Question 9

R v Crooks [1981]

K M A K O B I T S O H N R D T T P A W A P T T R O. M S O T I I T O I I.

Answer 9

Knowledge means actual knowledge or belief in the sense of having no real doubt
that the person assisted was a party to the relevant offence. Mere suspicion of
their involvement in the offence is insufficient.

Question 10

Receiving

R v Briggs 17/03/09

Answer 10

As with a receiving charge under s246(1),

knowledge may also be inferred

from wilful blindness or a deliberate abstention

from making inquiries that would

confirm
the suspected truth.

Question 11

Accessory

R v Mane [1989]

T B C A A T A D B T P M B A T C O T O.

Answer 11

To be considered an accessory

the acts done by the person must be

after the completion of the offence.

Question 12

Recklessness

R v Harney [1987]

“R M T C A D T O A U R. I N Z I I P T T C C O C W H, T W A I T C T C O C R O R.

Answer 12

“Recklessness means the conscious and deliberate taking

of an unjustified risk.

In New Zealand it involves

proof that the consequence complained of

could well happen,

together with an intention to continue the course of conduct

regardless of
risk.”

Question 13

Property

R v Archer [2009]

Answer 13

Property may be damaged if

it suffers permanent or temporary physical harm

or
permanent or temporary impairment of its

use or value.

Question 14

Loss

R v Morley [2009]

“L I A B T E T W T C P P T T O H B D O I”

Answer 14

“Loss … is assessed by the extent

to which the complainant’s position prior to the
[offence]

has been diminished or impaired.”

Question 15

Conduct

R v Harpur [2010]

T C M H R T T C V C U T T P W T C I Q S … T D C M B C I I E. C H M R T B D… I A R, T N D.

Answer 15

“[The Court may] have regard to the conduct viewed cumulatively

up to the point when the conduct in question stops …

the defendant’s conduct [may] be
considered in its entirety.

Considering how much remains to be done …

is always
relevant, though not determinative.”

Question 16

R v Ring [1892]

Answer 16

In this case the offender’s intent was to steal property by putting his hand into the
pocket of the victim. Unbeknown to the offender the pocket was empty. Despite
this he was able to be convicted of attempted theft, because the intent to steal
whatever property might have been discovered inside the pocket was present in
his mind and demonstrated by his actions. The remaining elements were also
satisfied.

Question 17

Higgins v Police [1984]

Answer 17

Where plants being cultivated as cannabis are not in fact cannabis it is physically,
not legally, impossible to cultivate such prohibited plants. Accordingly, it is possible
to commit the offence of attempting to cultivate cannabis.

Question 18

Police v Jay [1974]

Answer 18

A man bought hedge clippings believing they were cannabis.

Question 19

Stolen Property

R v Donnelly [1970]

W S P H B R T T O O L T T A S P H B A B A P, I I N A O T S R I, E T T R M K T T P H P B S O D O.

Answer 19

Where stolen property has been returned to the owner

or legal title to any such
property has been acquired by any person,

it is not an offence to subsequently
receive it,

Even though the receiver may know that the property had previously
been stolen

or dishonestly obtained.

Question 20

Retail Premise

Police v Barwell [6/7/06]

Answer 20

A person who enters retail premises whilst those premises are open to the
public intending to commit a crime in the building does not do so without
authority, in terms of s231, Crimes Act 1961.

Question 21

R v Collins [1972]

Answer 21

There cannot be a conviction for entering a premises ‘as a trespasser’
unless the person entering does so knowing he is a trespasser and
deliberately enters or is reckless whether or not he is entering the premises
of another without the other party’s consent.

Question 22

Weapon

Police v Pitman

Answer 22

The word “weapon” carries the meaning

of something used to inflict bodily injury
…

also any other item

which the accused intended to use to inflict harm

should the
need arise …

Bodily injury need not be limited to direct physical injury and can
include bodily harm arising as a result of shock produced by the weapon.

Question 23

Firearm

R v Kelt [1977]

Answer 23

Having a firearm “with him”

requires “a very close physical link

and a degree of
immediate control over the weapon

by the man alleged to have the firearm with him”.

Question 24

Weapon Usage

R v Steele [2007]

Answer 24

“To use” may be limited to the offender

revealing by words or conduct

the actual
presence of or immediate availability of the item

so long as the accused have the
weapon in their physical possession and readily available.

Question 25

Conspiracy intention

Mulachy v R [1868]

Answer 25

“A conspiracy consists not merely in the intention of two or more,

but in the
agreement of two or more

to do an unlawful act,

or to do a lawful act by unlawful
means.

So long as such a design rests in intention only it is not indictable.

When
two agree to carry it (the intended offence) into effect,

the very plot is an act in
itself ….”

Question 26

Conspiracy

R v Sanders [1984]

A C D N E W T M O T A. T C A C I T O A T I E U I I E B C O I P O A O I A O M B W A A D.

Answer 26

“A conspiracy does not end

with the making of the agreement.

The conspiratorial
agreement continues in the operation

and therefore in existence

until it is ended by
completion of its performance or abandonment

or in any other manner by which
agreements are discharged.”

Question 27

Conspiracy

R v White [1945]

Answer 27

Where you can prove that a suspect conspired with other parties (one or more
people) whose identities are unknown, that suspect can still be convicted even if
the identity of the other parties is never established and remains unknown.

Question 28

Hayes v R [2008] (Regarding Pecuniary Advantage)

Answer 28

A pecuniary advantage is “anything that enhances the accused’s financial position. It is that enhancement which constitutes the element of advantage”.

Question 29

Hayes v R [2008] (Regarding Valuable Consideration)

Answer 29

A valuable consideration is “anything capable of being valuable consideration, whether of a monetary kind or of any other kind; in short, money or money’s worth”.

Question 30

R v Misic [2001]

Answer 30

“Essentially a document is a thing which provides evidence or information or serves as a record.”

Question 31

Hayes v R [2008] (Regarding Use)

Answer 31

“An unsuccessful use of a document is as much use as a successful one. An unsuccessful use must not be equated conceptually with an attempted one. The concept of attempt relates to use not to the ultimate obtaining of a pecuniary advantage, which is not a necessary ingredient of the offence. Because the use does not have to be successful it may be difficult to draw a clear line between use and attempted use.”

Question 32

R v Morley [2010] (Regarding Intention to Deceive)

Answer 32

An intention to deceive requires that the deception is practised in order to deceive the affected party. Purposeful intent is necessary and must exist at the time of the deception.

Question 33

R v Koroheke 28/11/01 (Regarding Genitalia)

Answer 33

The genitalia comprise the reproduction organs, interior and exterior … they include the vulva [and] the labia, both interior and exterior, at the opening of the vagina.

“Therefore, if a part of the offender’s body or an object held or manipulated by him is between the complainant’s labia to the slightest degree, it will constitute penetration for the purposes of sexual violation.”

Question 34

Reasonableness

R v Gutuama 13/12/01

Answer 34

Under the objective test the Crown must prove that “no reasonable person in the accused’s shoes could have thought that [the complainant] was consenting”.

Question 35

R v Koroheke (Regarding Force, Threat or Fear of Force)

Answer 35

It is important to distinguish between consent that is freely given and submission by a woman to what she may regard as unwanted but unavoidable. For example, submission by a woman because she is frightened of what might happen if she does not give in or co-operate, is not true consent.

Question 36

Cox v R regarding consent of a child

Answer 36

“Although we do not exclude the possibility that a child of ten or eleven may be able to give a full, voluntary, free and informed consent to sexual intercourse, the circumstances that would justify that conclusion would be exceptional if not rare. A ten or eleven year old child may know what sexual intercourse is. She may indicate her agreement.”

Question 37

Cox v R regarding reasonable belief in consent of a child

Answer 37

“Save in exceptional and rare circumstances … even where she indicates an agreement to the act occurring … no reasonable adult would have grounds for believing that a ten or eleven year old girl has the experience or maturity to understand the nature and significance of the act.”

Question 38

R v Court [1988] Regarding Indecency

Answer 38

Indecency means “conduct that right-thinking people will consider an affront to the sexual modesty of [the complainant]”.

Question 39

R v Leeson [1968]

Answer 39

“The definition of ‘indecent assault’ … is an assault accompanied with circumstances of indecency …”

Question 40

R v Skivington [1967]

Answer 40

“Larceny [or theft] is an ingredient of robbery, and if the honest belief that a man has a claim of right is a defence to larceny, then it negatives one of the elements in the offence of robbery, without proof of which the full offence is not made out.”

Question 41

R v Lapier [1784]

Answer 41

Robbery is complete the instant the property is taken, even if possession by the thief is only momentary.

Question 42

R v Maihi [1993]

Answer 42

“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 …”

Question 43

Peneha v Police 22/8/96

Answer 43

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”.

Question 44

R v Broughton [1986]

Answer 44

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.”

Question 45

DPP v Smith [1961]

Answer 45

“Bodily harm” needs no explanation and “grievous” means no more and no less than “really serious”.

Question 46

R v Joyce [1968]

Answer 46

“The Crown must establish that at least two persons were physically present at the time the robbery was committed or the assault occurred.”

Question 47

R v Galey [1985]

Answer 47

“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 48

R v Heard (1985)

Answer 48

“The form of words used for a demand does not matter. ‘Demand’ is a strong word, but … a demand does not have to be couched in abusive terms, so long as it is clear that it is a request for something.”

Question 49

R v Pene

Party to Offence

Answer 49

A party must intentionally help or encourage – it is insufficient if they were reckless
as to whether the principal was assisted or encouraged.

Question 50

R v Renata

Regarding Principal Offender

Answer 50

The court held that where the principal offender cannot be identified, it is sufficient
to prove that each individual accused must have been either the principal or a
party in one of the ways contemplated by s66(1).

Question 51

Larkins v Police

Actual Proof of Assistance is Required

Answer 51

While it is unnecessary that the principal should be aware that he or she is being
assisted, there must be proof of actual assistance.

Question 52

Ashton v Police

Regarding Legal Duty

Answer 52

An example of a secondary party owing a legal duty to a third person or to the
general public is a person teaching another person to drive. That person is, in New
Zealand, under a legal duty to take reasonable precautions, because under s156
of the Crimes Act 1961 he is deemed to be in charge of a dangerous thing.

Question 53

R v Russell

Regarding Special Relationship

Morally Bound to Take Active Steps

Answer 53

The court held that the accused was morally bound to take active steps to save his
children, but by his deliberate abstention from so doing, and by giving the
encouragement and authority of his presence and approval to his wife’s act he
became an aider and abettor and thus a secondary offender.

Question 54

R v Betts and Ridley

No Violence Contemplated…

Answer 54

An offence where no violence is contemplated and the principal offender in
carrying out the common aim uses violence, a secondary offender taking no
physical part in it would not be held liable for the violence used.

Question 55

Cullen v R

Possession for Receiving - Four Elements

Answer 55

There are four elements of possession for receiving:

(a) awareness that the item is where it is;
(b) awareness that the item has been stolen;
(c) actual or potential control of the item; and
(d) an intention to exercise that control over the item.

Question 56

R v Lucinsky

Regarding the Received Property

Answer 56

The property received must be the property stolen or illegally obtained
(or part thereof), and not some other item for which the illegally obtained
property had been exchanged or which are the proceeds.

Question 57

R v Kennedy

Answer 57

The guilty knowledge that the thing has been stolen or dishonestly
obtained must exist at the time of receiving.

Question 58

R v Donnelly

Regarding Stolen Property Recovered by Police

Answer 58

Where stolen property has been physically recovered by the Police, it is
legally impossible to commit the crimes of receiving or attempted
receiving in respect of it, although there may be evidence of conspiring
to receive property dishonestly obtained.