smaller bits

Question 1

conspiracy blurb

Answer 1

Agt to carry out criminal act w/ 1+ others
R v Johnston - formulation of plan = AR, conspiracy complete when agt is made as per Gemmel which must be anterior in time; may endure beyond point so that after completion of agt, a person can be found guilty of conspiracy even if object crime has not been committed.
R v Lang
Gemmel
MR - intention

Question 2

MR & AR of attempt (blurb)

Answer 2

D tries to commit offence but for whatever reason fails = guilty of attempt. A guideline & always connected to another offence.
MR - direct intention (sexual violation offences where consequence & circumstance diff. MR = Crown to prove 1) intent and 2) absent belief in consent) Murphy “nothing short of intent will suffice”
AR - actions must be “wholly ready to commit offence and more than preparatory” (Harpur - no magic formula) and act must be immediately/proximately connected to intended offence S 72(2)-(3) Holistic Vibes!
* Should view the defendant’s conduct in its entirety (R v Harpur)
◦ There must be a factual evaluation in terms of time, place and circumstance.

Question 3

Injuring w/ intent - S 189

Answer 3

Intent to cause GBH (10yr) or intent to injure/or with reckless disregard for safety of others (5yr)

AR = actual bodily harm s 2 (DPP v Smith, Owen)
MR for GBH = R v Smith ‘really serious bodily harm’ and Vincent v R - objective jury inquiry

Question 4

Wounding w/ intent - S 188

Answer 4

AR = maims, disfigures, causes GBH (P proves 1)

GBH = R v Smith ‘really serious bodily injury’
R v Mwai future

Wounds = ‘break in continuity of skin external & internal’
R v Scott

Disfigures & Maims - R v Rapana & Murray
Need not be permanent e.g. face tattoo
Maim = permanent damage

MR for all
Inferring intention. Consider:
- was weapon used (did they bring/improvise)
- degree of force (e.g. no. blows)
- what part of body was blows directed to
- what was said before, during, after assault

Question 5

actus reus for theft parts

Answer 5

A fundamental offence where other offences are based off e.g. robbery, assault

S 219(1)(a) theft by taking - WITHOUT OWNERS CONSENT!!! S 219(3)
AR 1) taking property 2) owned by another
- Offence committed when offender moves property (tangible) or gains control (intangible)

S 219(1)(b) theft by conversion
AR 1) using/dealing with property 2) owned by another
- lawfully obtains property but then uses it in way inconsistent w/ owners rights (Maihi, Russel)

Question 6

Intoxication

Answer 6

Not a defence, but it is relevant within the context of defences. The P must prove MR BRD & intoxication has evidential value; D may rely on it to negate MR. If enough evidence of intoxication, the judge has a judicial duty to put before jury (subjective).

Kamipeli - no presumption at law (innocent until proven guilty) BUT…Sheehan - “a drunken intent is nevertheless intent” and therefore it’s simply a fact to consider and cannot entirely negate MR.

Cameron v R - NZ courts have not squarely confronted policy question of self-induced intoxication. R v Tihi - if D can recognise the real possibility that their actions could lead to death (subjective) then they will be liable (recalled in detail attack).

Kirby - intoxication may tell against you.

Question 7

Consent

Answer 7

Not included generally as a defence, but available under express sections/common law. Duties tending to life preservation is NEVER justifiable
S 61A - surgery
S 128 - sexual actions
S 132 = consent not a defence to sexual acts w/ minors

Common law standard - Naziff - Consent in material fact/on basis of an honest belief may be enough to amount to a defence, but sexual violation in s 128 requires honest & reasonable belief of consent
Bannin - P’s burden of excluding defence of consent does not arise unless sufficient evidence from D to make it an issue

Barnes - consent may be implied in ie. sport, but if injury goes beyond the scope of implied consent, may be held liable.

Starting point - most organised sports have rules & measures to address misconduct; needs to be sufficiently grave to cross line.
Consider: - condition of game, nature of act, degree of force, probability of harm (question of fact - objective)

Lee - you should be able to consent to intentional harm in recognition of social utility of activity & personal autonomy. However, good public policy reasons may outweigh social utility & autonomy

Consent may not be legally effective where:
- mental capacity (asleep/unconscious/impaired)
- fear
- certain types of mistake (ie. nature of activity consented to)

Question 8

Necessity proper -

Answer 8

prima facie crime committed to prevent occurrence of a greater harm
Leason v Ag - belief on reasonable grounds that offence committed is the ‘lesser of two evils’ or serving greater good by preserving human life, preventing serious physical harm
Re A - act must be necessary to avoid inevitable, irreparable evil. No harm should be inflicted than what is reasonably necessary & proportionate (in Leason, not proportionate)
Mary = designated for death unlike Dudley