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Criminal Law 201, Defences, Checklist for Theft s219
was the item…
Criminal Law 201
Theft/Property
Theft (s219)
Actus Reus
- Is it property, under s2 including tangible and intangible items - Dixon v R - digital items are not property pure information cannot be property
- owned or possessed by someone else
- Taken, used or dealth with by the accused
- without consent of the owner
- mistake may vitiate consent
a. identiy of the person passing ownership too
b. quantity of the thing being handed over - (illich, not fungibles) amount not the thing
c. identity of the thing being handed over
Mens Rea
- intent to use or deal with the property
- in a dishonest way - assessed against the reasonable person standard of dishonesty R v Wang
- Claim of right - genuine belief in entitlement
- Intent to permanently deprive - including treating property as one's own
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Sexual offences
Statutory provisions
s128(1) - Sexual connection without consent
a. Rapes another person
b. unlawful sexual connection with another person
s128(2) - Rape
Actus reus
- Penetration of genitalia by penis
- A party does not in fact consent
Mens Rea
- Does not believe the other consented
- If they believe in consent, there is no reasonable ground for this belief
Key Cases
R v Nixon - No reasonable beleif in consent when complainant is asleep or unconscious
Christian v R - Consent cannot be inferred from a lack of protest or resistance
N v M - Reluctant or passive participation does not make consent
s128(3) - unlawful sexual connection
Actus Reus
- sexual connection (broadly defined)
- Party does in fact not consent
Mens Rea
- Accused knows there is no consent
- If they do, there is no reasonable grounds for this belief
Key Cases
R v Everson - Consent can be withdrawn at any time
R v Evener - Mere contact with the mouth is sufficient for sexual connection
R v Isherwood - Intoxication does not automatically negate consent
R v Kim - No duty to verify level of intoxication
s135 - Indecent Assault
Actus Reus
- Assault (All of AR assault
- An element of indecency (ordinary person find this indecent)
a. no need for sexual motivation
Mens rea
- Intent to touch/threaten to touch
- Intent to do something "indecent" - reasonable person judgement
Key Cases
Peters v Police - Indecency depends on societal values
R v Alwyn - Indecency is an objective test
R v Armstrong - Accused must percieve the act as indecent
Assualt / IPV
s2 - Assault, intentional application or attempt to apply force or threat of force with a present ability
s196 - Common assault, liable to imprisonment up to a year
Defences
- Claim of right (s2) - Genuine belief in entitlement (including Tikanga)
- Lex Aotearoa, Joe Williams and Elias CJ - Tikanga can ground legal rights
- Lack of dishonesty - if conduct aligns with ordinary standards of the community in regards to dishonesty
Checklist for Theft s219
- was the item property?
- was it owned or possessed by someone else?
- Was it taken, used or dealt with?
- Was there consent or a mistake?
- Did the accused intend to use/deal with it
- Was it dishonest?
- Was there a claim of right?
- Was there an intent to permanently deprive?
Checklist for Theft in a special relationship s220
- Was the property recieved on behalf of someone else?
- was there a duty to deal with the property in a specific way?
- Was that duty breached?
- Was the dealing intentional?
- was it dishonest?
- Was there a lawful excuse?
- Was there an intent to deprive?
Checklist for party liability to theft
- Was there assistance or encouragement?
- was there a shared plan?
- Was the offence a probable consequence
- Did the accused withdraw from the act?
- Did they know of the principle's intent?
Vitiation of consent
Mistakes which can vitiate consent (Per Illich v R [1987])
Mistakes can vitiate the consent to the passing of ownership where there is:
- Mistake to the identity of the transferee
- Mistake to the identity of the thing handed over
- Mistake to the quantity of the thing handed over (except for money)
Wilkinson - electronic transfers are unlikely to count as theft. No property is being transferred, just a change in contractual relationships
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Intoxication
Evidentiary defence - not a standalone defence
Relevant only to offences requiring a subjective mens rea (intent and knowledge)
Drunken intent is still intent
Not about the capacity to form intent, only wether the intent was actually formed
Must be extreme intoxication to negate mens rea
Application
Can negate intent or knowlegde, but not recklessness or negligence
High threshold and rarely successful
Self Defence
- Force used?
a. must be actual or threatened force
b. threat to shoot = force
c. Damage to property not mean force
d. Passive force not mean force
- Subjective belief in circumstances
a. genuine belief required, even if mistaken
b. Expert psychological evidence may support belief (e.g PTSD)
- Purpose of defence
a. must be acting to defend self or another
b. must be a reaction to fear of harm, not past events
- Reasonable force in the circumstances?
Objective test - was the force proportionate, consider:
a. imminence of threat
b. Necessity to respond
c. duty to retreat (not mandatory)
d. proportionality
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IPV checklist
- What level of harm occured (ABH, GBH, wounding)
- Was there intent or reckless disregard?
- Was the act unlawful?
- Was it committed during another offence or to avoid arrest?
- Was there a defence (consent, self defence, compulsion, duress of circumstance)
Types of assault
- Common assault (s196)
- Must be established before any aggravated assault
- psychic assault
- Threat by act or gesture + reasonable grounds to believe that force will follow
- Victim awareness not required (R v Kerr)
- Aggravated assault
- Built on common assault
- s143 CPA - if aggravated assault fails, fallback to common assault
- s194 - Assault on women of children by a male or family member = doubled penalty
- Prima Facie intention - no need to prove intent to use a weapon
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- Application of force
a. must be to the person of another, directly or indirectly
- Threat of Force
a. Must be by act or gesture, with present ability to carry it out
- Polive v Greaves - conditional threats = assault
- Fogden v Wade - walking behind a woman = threatening act
- R v Kerr - Victim need not be aware of the threat
- Words alone are not enough
a. must be accompanied by an act or gesture
b. Threats over the phone are not sufficient - no proximate ability
- Intentional application of force - recklessness is not enough
- R v young - assault requires intention not recklessness
- Transferred Malice applies
- Malice cannot be transformed
IPV - Not based on assault - no need to prove s196 first, focus is instead on the degree of harm caused, ABH/GBH