Assorted Questions Flashcards

Question

State the ingredients of infanticide (s178 of the Crimes Act 1961).

Answer 1

Where a woman causes the death of any child of hers under the age of 10 years in a manner that amounts to culpable homicide, and where at the time of the offence the balance of her mind was disturbed, by reason of her not having fully recovered from the effect of giving birth to that or any other child, or by reason of the effect of lactation, or by reason of any disorder consequent upon childbirth or lactation, to such an extent that she should not be held fully responsible, she is guilty of infanticide, and not of murder or manslaughter, and is liable to imprisonment for a term not exceeding 3 years.

Answer 2

Before a breach of any Act, regulation or bylaw would be an unlawful act under s 160 for the purposes of culpable homicide it must be an act likely to do harm to the deceased or to some class of persons of whom he was one.

Answer 3

Formulates the issues in the following way: 1. Was the deceased threatened by, in fear of or deceived by the accused? 2. If they were, did such threats, fear or deception cause the deceased to do the act that caused their death? 3. Was the act a natural consequence of the actions of the accused, in the sense that reasonable and responsible people in the accused’s position at the time could reasonably have foreseen the consequences? 4. Did these foreseeable actions of the victim contribute in a [significant] way to his death?

Answer 4

• Wilfully frightening a child under 16 years of age • Wilfully frightening a sick person (Mentally or physically)

Answer 5

Note that some acts are “justified” even when they result in death. Section 2 provides that when an act is justified the perpetrator is exempt from both criminal and civil liability. Examples of such acts include: • Homicide committed in self-defence (s48) • Homicide committed to prevent suicide or commission of an offence which would be likely to cause immediate and serious injury to the person or property of any one (s41).

Answer 6

R v Murphy When proving an attempt to commit an offence it must be shown that the accused’s intention was to commit the substantive offence. For example, in a case of attempted murder it is necessary for the Crown to establish an actual intent to kill.

Answer 7

Knowing any person to have been party to murder, receives, comforts, assists that person or tampers with or actively suppresses evidence against that person in order to enable him to escape after arrest or to avoid arrest or conviction.

Answer 8

A common agreement between 2 or more persons having for its object the death of all of them, whether or not each is to take his own life; but nothing done by a person who enters into a suicide pact shall be treated as done by him in pursuance of the pact unless it is done while he has the settled intention of dying in pursuance of the pact.

Answer 9

In R v Forrest & Forrest, 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. The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victim's age.

Answer 10

In New Zealand, the courts are likely to steer a middle course, allowing a defence of automatism arising out of taking alcohol and drugs, to offences of basic intent only. They are likely to disavow the defence where the state of mind is obviously self-induced, the person is blameworthy, and the consequences could have been expected.

Answer 11

Everyone is justified in using, in the defence of himself or another, such force as, in the circumstances as he believes them to be, it is reasonable to use.

Answer 12

1. Everyone has a right to consent to a surgical operation. 2. Everyone has a right to consent to the infliction of force not involving bodily harm. 3. No one has a right to consent to their death or injury likely to cause death. 4. No one has a right to consent to bodily harm in such a manner as to amount to a breach of the peace, or in a prize fight or other exhibition calculated to collect together disorderly persons. 5. It is uncertain to what extent any person has a right to consent to their being put in danger of death or bodily harm by the act of another.

Answer 13

* Committing arson * Giving a child an excessive amount of alcohol to drink * Placing hot cinders and straw on a drunk person to frighten them * Supplying heroin to the deceased * Throwing a large piece of concrete from a motorway overbridge into the path of an approaching car * Conducting an illegal abortion

Answer 14

1. Death occurred 2. Deceased is identified as the person who has been killed 3. The killing is culpable Death can be proved by direct and/or circumstantial evidence.

Answer 15

* Jumps or falls out of a window because they think they are going to be assaulted * Jumps into a river to escape an attack and drowns * Who has been assaulted and believes their life is in danger, jumps from train and is killed.

Answer 16

In subsection 1(a), "grievous bodily injury" means harm that is very serious, such as injury to a vital organ. To come with subsection 1(c), the stopping of the victim's breath must be done "wilfully".

Answer 17

1. Has the offender done anything more than getting himself into a position from which he could embark on an actual attempt? Or 2. Has the offender actually commenced execution; that is to say, has he taken a step in the actual crime itself?

Answer 18

Mitigating circumstances, such as a suicide pact, reduce what would otherwise be murder to manslaughter, even though the accused may have intended to kill or cause grievous bodily harm.

Answer 19

Covers those types of unlawful killing in which the death is caused by an unlawful act or gross negligence. In such cases, there has been no intention to kill or to cause grievous bodily harm.

Answer 20

An alibi is the plea in a criminal charge of having been elsewhere at the material time: the fact of being elsewhere.

Answer 21

The name and address of the witness or, if the name and address is not known to the defendant when the notice is given, any matter known by the defendant that might be of material assistance in finding the witness.

Answer 22

Everyone who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.

Answer 23

(1) Homicide may be either culpable or not culpable (2) Homicide is culpable when it consists in the killing of any person - (a) by an unlawful act; or (b) By an omission without lawful excuse to perform or observe any legal duty, or (c) By both combined; or (d) By causing that person by threats or fear of violence, or by deception, to do an act which causes his death; or (e) By wilfully frightening a child under the age of 16 years or a sick person.

Answer 24

This covers cases where nothing is done when there is a legal duty to act, and certain cases of positive conduct accompanied by a failure to discharge a legal duty, in particular a duty of care.

Answer 25

Everyone is liable to imprisonment for a term not exceeding 7 years who unlawfully abandons or exposes any child under the age of 6 years.

Answer 26

"Wilfully frightening" is regarded as: Intending to frighten, or at least be reckless as to this". Adams on Criminal Law.

Answer 27

Death should be provable by such circumstances as render it morally certain and leave no ground for reasonable doubt - that the circumstanial evidence should be so cogent and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for.

Answer 28

Everyone who is a parent, or is a person in place of a parent, who has actual care or charge of a child under the age of 18 years is under a legal duty - (a) To provide that child with necessaries; and (b) To take reasonable steps to protect that child from injury

Answer 29

* Under 10 - A child aged under 10 years has an absolute defence to any charge brought against them. Nevertheless, even though the child cannot be convicted, you still have to establish whether or not they are guilty. * 10-13 - For children aged between 10 and 13 years inclusive, it must be shown that the child knew their act was wrong or contrary to law. If this knowledge cannot be shown, the child cannot be criminally liable for the offence.

Answer 30

(a) Of understanding the nature and quality of the act or omission; or (b) Of knowing that the act or omission was morally wrong, having regard to the commonly accepted standards of right and wrong.

Answer 31

As to degree of proof, it is sufficient if the plea is established to the satisfaction of the jury on a preponderance of probabilities without necessity to exclude all reasonable doubt.

Answer 32

Where automatism is brought about by a voluntary intake of alcohol or drugs , the Court may be reluctant to accept that the actions were involuntary or that the offender lacked intention.

Answer 33

Any offence that does not require an intent is called a strict liability offence and the only way a defendant can escape liability for such an offence is to prove a total absence of fault. Example: Driving with Excess Breath Alcohol.

Answer 34

A person is protected from criminal responsibility if: 1. They have been compelled to commit the offence by someone at the scene who had threatened them that they would otherwise be killed or caused grievous bodily harm. 2. The accused must have genuinely believed the threats and; 3. Must not be a party to any association or conspiracy involved in carrying out the threats.

Answer 35

Entrapment occurs when an agent of an enforcement body deliberately causes a person to commit an offence, so that the person can be prosecuted.

Answer 36

Culpable homicide is murder in each of the following cases: (a) If the offender means to cause the death of the person killed. (b) If the offender means to cause to the person killed any bodily injury that is known to the offender to be likely to cause death, and is reckless whether death ensues or not. (c) If the offender means to cause death, or, being so reckless as aforesaid, means to cause such bodily injury as aforesaid to one person, and by accident or mistake kills another person, though he does not mean to hurt the person killed. (d) If the offender for any unlawful object does an act that he knows to be likely to cause death, and thereby kills any person, though he may have desired that this object should be effected without hurting any one.

Answer 37

The expression "legal duty" refers to those duties imposed by statute or common law including uncodified common law duties.

Answer 38

No one is criminally responsible for the killing of another by any influence on the mind alone, except by wilfully frightening a child under the age of 16 years or a sick person, nor for the killing of another by any disorder or disease arising from such influence, except by wilfully frightening any such child as aforesaid or a sick person.

Answer 39

To show that the accused's state of mind meets the provisions of s167(b), you must establish that the accused: * Intended to cause bodily injury to the deceased * Knew the injury was likely to cause death * Was reckless as to whether death ensued or not

Answer 40

* Aiding suicide * Criminal actions * Injury likely to cause death * Bodily harm likely to cause a breach of the peace * Indecency offences * The placing of someone in a situation where they are at risk of death or bodily harm.

Answer 41

Those who use violence must take their victims as they find them.

Answer 42

(a) The circumstances relating to the statement provide reasonable assurances that the statement is reliable; and (b) Either - (i) The maker of the statement is unavailable as a witness; or (ii) The Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness.

Answer 43

Automatism can best be described as a state of total blackout, during which a person is not conscious of their actions and not in control of them.

Answer 44

Automatism may be quite different and distinct from insanity, although it may be due to a disease of the mind. Hence, it is necessary to distinguish bertween: Sane automatism - The result of somnambulism (sleepwalking), a blow to the head or the effects of drugs. Insane automatism - The result of a mental disease.

Answer 45

In New Zealand, the courts have rejected entrapment as a defence per se, preferring instead to rely on the discretion of the trial judge to exclude evidence that would operate unfairly against the accused.

Answer 46

Once the accused has decided that use of force was required (a subjective view of the circumstances as the accused believed them), Section 48 then introduces a test of reasonableness which involves an objective view as to the degree and manner of the forced used.

Answer 47

It is permissible for undercover officers to merely provide the opportunity for someone who is ready and willing to offend, as long as the officers did not initiate the person's interest or willingness to so offend.

Answer 48

The O/C case should not interview an alibi witness unless the prosecutor requests them to do so. If an interview is requested, follow this procedure: * Advise the defence counsel of the proposed interview and give them a reasonable opportunity to be present. * If the accused is not represented, endeavour to ensure the witness is interviewed in the presence of some independent person not being a member of the Police. * Make a copy of the witness' signed statement taken at any such interview available to defence counsel through the prosecutor. Any information that reflects on the credibility of the alibi witness can be withheld under s16(1)(o)

Answer 49

* Any brief of evidence to be given or any report provided by that witness, or * If that brief or any such report is not available, a summary of the evidence to be given and the conclusions of any report to be provided. * This information must be disclosed at least 14 days before the date fixed for the defendant's hearing or trial, or within any further time that the court may allow.

Answer 50

In the past, intoxication was considered to be no defence to a criminal charge and, indeed, an aggravating rather than mitigating factor. The general rule has been that intoxication may be a defence to the commission of an offence: * Where the intoxication causes a disease of the mind so as to bring s23 (insanity) of the Crimes Act 1961 into effect; * If intent is required as an essential element of the offence and the drunkenness is such that the defence can plead a lack of intent to commit the offence; * Where the intoxication causes a state of automatism (complete acquittal).

Answer 51

Where a woman causes the death of any child of hers under the age of 10 years in a manner that amounts to culpable homicide, and where at the time of the offence the balance of her mind was disturbed, by reason of: * Her not having fully recovered from the effects of giving birth to that or any other child, or; * By reason of the effect of lactation, or; * By reason of any disorder consequent upon child birth or lactation, to such an extent that she should not be held fully responsible; She is guilty of infanticide, and not of murder or manslaughter, and is liable to imprisonment for a term not exceeding 3 years.

Answer 52

Where mitigating circumstances, such as a suicide pact, reduce what would otherwise be murder to manslaugther, even though the defendant may have intended to kill or cause grievous bodily harm.

Answer 53

Covers those types of unlawful killing in which the death is caused by an unlawful act or gross negligence. In such cases there has been no intention to kill or to cause grievous bodily harm.

Answer 54

Manslaughter includes culpable homicide that: * Does not come within ss 167 or s168; * Comes within ss 167 and 168, but is reduced to manslaughter because the killing was part of a suicide pact as defined in s180(3) of the Crimes Act 1961.

Answer 55

The degree of force permitted is tested initially under the following subjective criteria: * What are the circumstances that the defendant genuinely believes exist (whether or not it is a mistaken belief) * Do you accept that the defendant genuinely believes those facts? * Is the force used reasonable in the circumstances believed to exist?

Answer 56

(1) Culpable homicide is also murder in each of the following cases, whether the offender means or does not mean death to ensue, or knows or does not know that death is likely to ensue: (a) If he means to cause grievous bodily injury for the purpose of facilitating the commission of any of the offences mentioned in subsection (2) of this section, or facilitating the flight or avoiding the detection of the offender upon the commission or attempted commission thereof, or for the purpose of resisting lawful apprehension in respect of any offence whatsoever, and death ensues from such injury. (b) If he administers any stupefying or overpowering thing for any of the purposes aforesaid, and death ensures from the effects thereof. (c) If he by any means wilfully stops the breathing of any person for any of the purposes aforesaid, and death ensues from such stopping of breath.

Answer 57

Homicide is the killing of a human being by another, directly or indirectly, by any means whatsoever.