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Flashcards in Final Liability Defenitions Deck (17)
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1

Person

Gender Neutral. Proven by Judicial notice or circumstantial evidence

2

Rape

RAPE
Person A rapes Person B if Person A has sexual connection with Person B, effected by the penetration of Person B's genitalia by Person A's penis,
(a) without person B's consent to the connection AND
(b) without believing on reasonable grounds that Person B consents to the connection
Sec 128(2), Crimes Act 1961

PENETRATION
Introduction and penetration have the same meaning.
Introduction to the slightest degree is enough to effect a connection
Sec 2(1A), Crimes Act 1961

PROOF OF PENETRATION IS REQUIRED
Proof my be provided by:
- the complainant's evidence
- medical examination, (DNA, injuries)
- accused's admissions

Genitalia includes a surgically constructed or reconstructed organ analogous to naturally occurring male or female genitalia (whether the person concerned is male, female or of indeterminate sex)
Sec 2, Crimes Act 1961

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.
R v KOROHEKE

Penis includes a surgically constructed or reconstructed organ analogous to a naturally occurring penis (whether the person concerned is male, female or of indeterminate sex)
Sec 2, Crimes Act 1961

CONSENT
"Consent" is a person's conscious and voluntary agreement to something desired or proposed by another.

Consent must be "full, voluntary, free and informed . . . freely and voluntarily given by a person in a position to form a rational judgement".
R V COX

MATTERS THAT DO NOT CONSTITUTE CONSENT - Sec 128A CA 1961
- not protesting or offering physical resistance to use force.
- application of force to self or others, threats of force to self or others or fear of force to self or others
- asleep or unconscious
- so affected by drugs/alcohol they cannot consent
- so affected by mental or physical impairment they cannot consent
- mistaken ID
- mistaken as to the nature and quality of the act
(Only include those relevant to the scenario, if any)

REASONABLE GROUNDS
The establishing of reasonable grounds is a three step process
Subjective test - step 1 - absence of consent
What was the complainant thinking at the time? was s/he consenting?
Subjective test - step 2 - belief in consent
If s/he were not consenting did the offender believe the complainant was consenting? ie what was the offender thinking at the time
Subjective test - step 3 - Reasonable grounds for belief of consent
If the offender believed the complainant was consenting, was that belief reasonable in the circumstances. Ie what would a reasonable person have believed if placed in the same position as the defendant?

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".
R v GUTUAMA

3

With intent to cause Grievous Bodily Harm

INTENT
In a criminal law context there are two specific types of intention in an offence. Firstly there must be an intention to commit the act and secondly an intention to get a specific result.

The nature of the blow and the gash which it produced on the complainants head would point strongly to the necessary intent.
R v TAISALIKA

GRIEVOUS BODILY HARM
Grievous bodily harm can be defined simply as harm that is really serious

Bodily harm needs no explanation and grievous means no more and no less than really serious
DPP v SMITH

4

Wounds
OR
Maims
OR
Disfigures
OR
Causes GBH

WOUND
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 were the bleeding which evidences the separation of tissues may be internal.
R v WATERS

OR

MAIMS
Will involve mutilating, crippling or disabling part of the body so the victim is deprived of the use of a limb or one of the senses. Needs to be some degree of permanence.

OR

DISFIGURES
To disfigure means to deform or deface, mar or alter the figure or appearance of a person.

The word disfigures covers not only permanent damage but also temporary damage
R v RAPANA and MURRAY

OR

GRIEVOUS BODILY HARM
Grievous bodily harm can be defined simply as harm that is really serious

Bodily harm needs no explanation and grievous means no more and no less than really serious
DPP v SMITH

5

Class C Controlled
drug

CLASS C CONTROLLED DRUG
Means the controlled drugs specified or described in Schedule 3 to this Act,
and includes any controlled drug analogue.
SEC 2 MODA 75

CONTROLLED DRUG
Means any substance, preparation, mixture or article specified or described
in Schedule 1, Schedule 2, or Schedule 3 to this Act and includes any
controlled drug analogue.
SEC 2 MODA 75

6

Sells
OR
Offers to sell

SELL
A sale occurs when a quantity or share in a drug is exchanged for some
valuable consideration. Will commonly be money, but anything of value will
suffice

DEALING WITH CONTROLLED DRUGS
For the purposes of paragraph (e) of subsection (1) of this section, if it is
proved that a person has supplied a controlled drug to another person he
shall until the contrary is proved be deemed to have sold that controlled
drug to that other person.
SEC 6(5) MODA 75

OR

OFFERS
Express readiness to do something for or on behalf of someone.
OXFORD DICTIONARY

OFFERS TO SELL
The prosecution must prove two elements:
- the communicating of an offer to sell a controlled drug (the actus reus)
and
an intention that the other person believes the offer to be genuine (the mens rea)

MUST PROVE GUILTY KNOWLEDGE:
This will involve proof that the defendant:
· knew about the importation/exportation, and
· knew the imported/exported substance was a controlled drug,
and
· intended to cause the importation/exportation

It is not necessary for the Crown to establish knowledge on the part of
the accused. In the absence of evidence to the contrary knowledge on
her part will be presumed, but if there is some evidence that the
accused honestly believed on reasonable grounds that her act was
innocent, then she is entitled to be acquitted unless the jury is satisfied
beyond reasonable doubt that this was not so.
R v STRAWBRIDGE

USEABLE AMOUNT
In any drug offence the quantity of drug involved must be measurable
and useable.
“…the serious offence of … possessing a narcotic does not extend to
some minute and useless residue of the substance”.
POLICE v EMERALI

7

Unlawfully

Without lawful justification, authority or excuse

8

Takes Away
or
Detains

Taking away and detaining are “separate and distinct offences. The first consists of taking [the victim] away; the second of detaining them.
R v CROSSAN

Takes away:
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”.
R v WELLARD

OR

DETAINS
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.
R v PRYCE

9

Without his or her consent

OR

With his or her consent
obtained by
fraud or duress

CONSENT
“Consent” is a person's conscious and voluntary agreement to something desired or proposed by another.

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

TO OBTAIN CONSENT BY FRAUD
Consent obtained by the misrepresentation of the facts or the offenders intentions

OR

TO OBTAIN CONSENT BY DURESS
Consent obtained by actual or implied threat of force to the victim or another person. Can include other forms of pressure or coercion.

A child under the age of 16 years cannot consent to being taken away or detained.
SEC. 209A, CA 61

10

With intent to:
(a) - To hold him or her for
ransom or to
service
OR
(b) - To cause him or her to be
imprisoned or
confined
OR
(c) - To cause him or her to be
sent or taken

INTENT
In a criminal law context there are two specific types of intention in an offence. Firstly there must be an intention to commit the act and secondly, an intention to get a specific result

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.
R v MOHI

RANSOM
A sum of money demanded or paid for the release of a person being held capture.

or

SERVICE
Hold as a servant or slave

OR

CONFINED
Restricting their movements to within a geographical area.

or

IMPRISONED
To be held as if in prison

SENT OUT OF NEW ZEALAND
Sent - normal meaning, to be sent outside NZ shores

OR

TAKEN OUT OF NEW ZEALAND
“Taken” suggests victim in company or custody of a person accompanying them out of New Zealand.

11

Intentionally

Or

Recklessly

INTENT
In a criminal law context there are two specific types of intention in an offence. Firstly there must be an intention to commit the act and secondly, an intention to get a specific result.

OR

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.
R v HARNEY

12

And without claim of right

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
SEC 2, Crimes Act 1961

13

Damages by Fire

OR

Damages by means of explosive

DAMAGES BY FIRE
Although fire damage will often involve burning or charring, it is not necessary that the property is actually set alight; melting, blistering of paint or significant smoke damage may be sufficient

Property may be damaged if it suffers permanent or temporary physical harm or permanent or temporary impairment of its use or value.
R v ARCHER

OR

EXPLOSIVE
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
SEC. 2 Arms Act 1983

14

Any immovable property or any vehicle, ship or aircraft in which that person has no interest

IMMOVABLE PROPERTY
Property will be considered immovable if it is currently fixed in place and unable to be moved, even though it may be possible to make it movable.

PROPERTY
Property includes any real or 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.
SEC 2, Crimes Act 1961

OR

VEHICLE
Means a contrivance equipped with wheels, tracks, or revolving runners on which it moves or is moved;
SEC. 2, Land Transport Act 1998

OR

SHIP
means every description of vessel used in navigation, however propelled; and includes any barge, lighter, dinghy, raft, or like vessel; and also includes any ship belonging to or used as a ship of the armed forces of any country
Sec 2, Crimes Act 1961

OR

AIRCRAFT
means any machine that can derive support in the atmosphere from the reactions of the air otherwise than by the reactions of the air against the surface of the earth
SEC. 2 Civil Aviation Act 1990

INTEREST
Not defined by legislation, however the courts have held that tenancy of a property constitutes an interest in it.

PERSON
Gender neutral. Proven by judicial notice or circumstantial evidence.

15

Uses any firearm
in any manner
whatever

USE IN ANY MANNER WHATEVER
The primary meaning of the word "use" in relation to a firearm is to fire it,
however the words “in any manner whatever” widen the definition to include a range of acts that stop short of actually shooting at an officer.

“Use in any manner whatever” is to contemplate a situation short of actually firing the weapon and to present a rifle too, I think, is equivalent to or means the same thing...
POLICE v PARKER

Firearm - Sec. 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 AND
(ii) Anything which is not for the time being capable but which, by its completion
or the replacement of any component or repair of any defect would be a firearm AND
(iii) Anything dismantled or partially dismantled; AND
(iv) Any specially dangerous airgun:

16

Against any
Constable,

or

any traffic officer,

or

any prison officer
acting in the course
of his or her duty

AGAINST ANY CONSTABLE
Constable means a Police employee who—
(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
SEC. 4, POLICING ACT 2008

ACTING IN THE COURSE OF HIS OR HER DUTY
The term includes every lawful act which a constable does while on duty, and may include acts done where the circumstances create a professional obligation for a Constable to exercise policing duties while off duty.

17

Knowing that,

Or

Being reckless
whether or not
that the person is a
Constable

or

traffic officer,

or

prison officer

so acting

KNOWING THAT PERSON IS A MEMBER OF THE POLICE SO ACTING
The accused must know the victim is a police officer and know that the officer is acting in the course of his or her duty, or be reckless as to those facts.

KNOWING
Knowing means “knowing or correctly believing… the belief must be a correct one, where the belief is wrong a person cannot know something:
SIMESTER AND BROOKBANKS

OR

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.
R v HARNEY