Bully

Question 1

What are the critical factors to consider for a charge of murder?

Answer 1

Whether the offender intended to:

• kill the person or
• cause bodily injury that the offender knew was likely to cause death

Question 2

Define homicide S158 (+)

Answer 2

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

Question 3

Can an organisation (as opposed to a human being) be convicted of murder or manslaughter? Explain your answer. (+)

Answer 3

An organisation cannot be convicted of murder because the offence carries a mandatory life sentence and the killing must be done by a human. An organisation can be convicted as a party to the offence.

Question 4

What was held in Murray Wright Ltd?

Organisation manslaughter

Answer 4

Because the killing must be done by a human being, an organisation cannot be convicted as a principal offender.

Question 5

When does a child become a human being and therefore capable of being murdered?

Answer 5

S159 (1) A child becomes a human being when it has completley proceeded in a living state from the body of it’s mother, whether it has breathed or not, whether it has an independent circulation or not, and whether the navel string is severed or not.
(2) The killing of such a child is homicide if it does in consequences of injuried received before, during or after birth

Question 6

Section 160 of the Crimes Act 1961 defines what constitutes culpable homicide. What are the five ways set out in subsection (2) of this section? (+)

Answer 6

• an unlawful act
• an omission without lawful excuse to perfrom of observe any legal duty
• or by both combined
• causing that person by threats or fear of violence, or by deception, to do an act which causes his death, or
• wilfully frightening a child U16 or a sick person

Question 7

Define unlawful act

Answer 7

A breach of any Act, regulation, rule or bylaw

Question 8

What was held in R v Myatt in relation to unlawful act? (+)

Answer 8

[Before a breach of any Act, regluation or bylaw would be an unlawful act under S160 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.

Question 9

What are examples of culpable homicide? (+)

Answer 9

Arson
Giving a child excessive amounts of alcohol to drink
Supplying herion to a person who dies of an overdose
Throwing a large piece of concrete from a motorway bridge into the path of oncoming traffic
Conducting an illegal abortion where the mother dies

Question 10

What does legal duty refer to?

Answer 10

Those duties imposed by statue or common law including uncodified common law duties

Question 11

Duties imposed by statue are mainly common law duties that have been embodied in statute, the Crimes Act defines these duties to? (+)

Answer 11

• Provide nesessaires and protect from injury
• Provide necessaries and protect from injury to charged when you are a parent or guardian
• provide necessaries as an employer
• use reasonable knowledge and skill when performing dangerous acts such as surgery
• take precautions when in charge of dangerous things such as machinery

Question 12

In relation to threats, fear of violence and deception, What was held in R v Tomars? (+)

Answer 12

1. Was the deceased threatened by, in fear of or deceived by the defendant?
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 conequence of the actions of the defendant, in the sense that reasonable and respinsible people in the defendants position at the time could reasonably have forseen the consequences?
4. Did the forseeable actions of the victim contribute in a way to his death

Question 13

What are 3 examples of culpable homicide caused by actions promoted by threats, fear of violence or deception? (+)

Answer 13

• a person jumps or falls out of a window and dies because they think they are going to be assaulted
• a person jumps into a river to escape an attack and drowns
• a person who has been assaulted and beleives their life is in danger, jumps from a train and dies

Question 14

Wilfully frightening is regarded as?

Answer 14

Intending to frighten, or at least be reckless as to this.

Question 15

No one is criminally liable for the killing of another by any influence on the mind alone, except when?

Answer 15

Wilfully frightening a child U16 OR a sick person

Question 16

What is the legal view of consent to death?

Answer 16

No one has the right to consent to being killed, this means that if someone is killed, the fact they gave thier consent will not affect the criminal responsibiity of anyone else involved with the killing

Question 17

To establish death, what must you prove? (+)

Answer 17

• Death occured
• Deceased is identified as the person who has been killed
• The killing is culpable

Question 18

What was held in R v Horry (when body is not located)?

Answer 18

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

Question 19

Explain justification and give 2 examples

Answer 19

Some acts are justifed where the prepetrator is exempt from both criminal and civil liability, e.g

• homicide committed in self defence
• homicide committed to prevent suicide or comission of an offence which would be likely to cause immediate and serious injury to the person or property of any one.

Question 20

Would you be charged with any offence if you fatally injured another player during a rugby match? If so, what might the charges be?

Answer 20

Normally you would not be charged with the killing of another player i f they died from injuries you caused while playing football. However, you would be guilty of manslaughter if your actions were considered likely to cause serious injury, as you should have been aware of this at the time and refrained from the action. Homicide Law and Defences

Question 21

S167 Murder defined - Culpable homicide is murder in each of the following cases (+)

Answer 21

(A) if the offendr means to cause the death of the person killed
(B) if the offender means to cause the person killed any bodily injury that is known to the offender to likley cause death or is reckless to this
(C) if the offender means to cause death or by being reckless and by accident or mistake kills another person, though he didn’t intend to kill the person
(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 his object should be effected without hurting anyone

Question 22

S168 - Further definiton of murder - Culpable homicide is also murder in each of the following cases (+)

Answer 22

(A) if he means to cause grevious bodily injury for the purpose of facilitating the commission of any offence mentioned in subsection (2) of this section or facilitating the flight or avoiding the detection of the offender upin the commission or attempted commission therof, 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 breath of any person for any pf the purposes aforesaid and death ensues from such stopping of breath

Question 23

If you are charging an offender with murder what intent must you show

Answer 23

• intent to cause death, or
• knew that death was likley to ensue, or
• was reckless that death would ensue

Question 24

What was held in R v Piri in relation to recklesness? (+)

Answer 24

Recklesness involves a conscious, deliberate risk taking. The degree of risk of death foreseen by the accused under either S167(b) or (d) must be more than negligible or remote. The accused must recognise a real or substantial sick that death would be caused

Question 25

What was held in R v Desmond in relation to killing in pursuit of an unlawful object?

Answer 25

Not only must the object be unalwul but also the accused must know that his act is likley to cause death. It must be shown that his knowledge accompanied the act casuing death (prison blowing up)

Question 26

Murder committed in the execution of a common purpose.
S66(2) parties to offences
(+)

Answer 26

Where 2 or more persons form a common intention to prosecute any unlawful purpose, and to assist eachother therin, each of them is a party to every offence committed by any one of them in the prosecution of common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose

Question 27

What is the punishment of murder

Answer 27

Life imprisonment

Question 28

An offender who is convicted of murder must be sentenced to life unless?

Answer 28

Given the circumstances of the offence and the offender, a sentence of imprisonment for like would be manifestly unjust.
If the court does not impose this sentence it must give written reasons for not doing so

Question 29

Define attempts S72CA61

Answer 29

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

Question 30

What was held in R v Murphy in relation to intent? (+)

Answer 30

When proving an attempt to commit an offence it must be shown that the accuseds intention was to commit the substantive offence. E.g in a case of attempted murder it is necessary for the Crown to establish an actual intent to kill.

Question 31

To prove an attempt you must prove the acts were?

Answer 31

Sufficently proximate to the full offence

Question 32

What was held in R v Harpur in relation to several acts?

Answer 32

The court may have regarded to the conduct viewed cumulativley up to the point where 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 33

Proximity is a question of law decided by whom?

Answer 33

The judge

Question 34

Penalty for attempted murder (+)

Answer 34

14 years

Question 35

What is the difference between counselling or attmepting to procure murder and conspiracy to murder?

Answer 35

Councelling or attempting to procure murder required that the offence to be committed in NZ, whereas with consipracy to murder, the murder can take place in NZ or elsewhere.
Counselling or attempting to procure murder only applies if the murder is not in fact committed, whereas conspiracy to murder applies regardless of whether murder is committed or not

Question 36

When murder is attempted but not committed an inciter etc will be laible to?

Answer 36

Party to attempted murder

Question 37

Define Conspiracy to murder (+)

Answer 37

Everyone is liable to imprisonment not exceeding 10 years who conspires or agrees with any person to murder any other person, whether the murder takes place in NZ or elsewhere.
This includes murder of someone outsie NZ

Question 38

Punishment for accessory after the fact to murder? (+)

Answer 38

7 years

Question 39

Define accessory after the fact?

Answer 39

Knowing any person to have been a party to the offence
Receives, comforts or assists that person OR
Tampers with or actively supporesses any evidence against him, in order to enable him to escape after arrest or to avoid arrest or conviction

Question 40

What was held in R v Mane in relation to AATF?

Answer 40

For a person to be an accesory the offence must be complete at the time of the criminal involvement. One cannot be convicted of being an accesory after the fact of murder when the actus reus of the alleged criminal conduct was wholly completed before the offence of homicide was completed

Question 41

Define voluntary and involuntary manslaughter

Answer 41

In voluntary manslaughter, mitigating circumstances (such as a suicide pact) reduce what would otherwise be murder to manslaughter, even though the defendant may have intended to kill or cause grievous bodily harm. Involuntary manslaughter covers those types of unlawful killing in which death is caused by criminal negligence. In such cases there has been no intention to kill or cause grievous bodily harm.

Question 42

If an offender intends to kill A but inadvertently strikes the fatal blow to B, is the offender still guilty of murder?

Answer 42

the guilt of the offender is not affected. Section 167(c) states that if the offender means to cause the death of one person and by mistake or accident kills another, even though he did not mean to hurt the other person, then it is murder.

Question 43

What do you need to consider if you come across a killing that is the result of a sudden fight?

Answer 43

Self defence and the requisite mens rea for a murder charge.

Question 44

Before a conviction of manslaughter can be ontained what must the prosecution prove?

Answer 44

A very high degree of negligence or gross negligence

Question 45

Punishment of manslaugter

Answer 45

Life imprisonment

Question 46

Infantifice defined S178(1) (+)

Answer 46

Where a woman causes the death of any child of hers under the age of 10 in a manner that amounts to cuplable homicide, and
At the time of the offence was suffering from the effects of childbirth, lactation or a disorder consequent to child birth
She is not to be held fully relaible but is guilty of infanticide and liable to 3Y imprisonment

Question 47

Who decides the mothers state of mind?

Answer 47

The Jury

Question 48

Sections 151 and 152 and 153 of the Crimes Act 1961 list the legal duties regarding providing those things and conditions necessary to sustain life and protect from injury. Outline the provisions.

Answer 48

Duty to provide the necessaries and protect from injury
Duty of parent and guardian to provide necessaries and protect from injury
Duty of employers to provide necessaries

Legal duties regarding provision of the necessaries and to take reasonable steps to protect that person from injury apply to those having actual care or charge of people who are vulnerable adults or, in the case of a parent or a person acting in the place of a parent having actual care or charge of a child under 18 years.

Question 49

Define vulnerable adut

Answer 49

A person unable, by reason of detention, age, sickness, mental impairment or by any other cause, to withdraw himself or herslef from the care or charge of another person

Question 50

Abandoning a child

Answer 50

Everyone who unlawfully abandons or exposes any child U6 is liable to 7Y imprsonment

Question 51

Outline S155 and S156 - Dangerous acts and things

Answer 51

155- Dangerous acts - everyone is under a legal duty to have and use reasonable knowledge and skill when performing dangerous acts such as surgery
156 - Dangerous things - anyone who is in control of a dangerous thing such as heavy machinery must use reasonable precautions and reasonable care to avoid danger

Question 52

Outline S 163 - killing by influence on the mind

Answer 52

No one is criminally responsible for the killing of another by any influence on the mind except for wilfully frightening a child or sick person

Question 53

What was held in R v Blaue

Answer 53

Those who use violence must take thier victims as they find them

Question 54

What was held in R v Tarei, withdrawl of life?

Answer 54

To withdraw life support does not cause death but removes the possiblity of extening the persons life through artificial means

Question 55

S179 - Aiding and abbetting suicide (+)

Answer 55

Everyone is liable to imprisonment not exceeding 14 years who
Incites, counses or procures any person to commit suicide, if that person commits or attempts to commit suicide in consequence thereof or
Aids or abets any person in the commission of suicide

Question 56

Is a person, who helps another person commit suicide, criminally liable for their actions? Explain your answer.

Answer 56

Yes, it is an offence for a person to assist another person to commit suicide without any intention for the person to commit suicide themselves
It is an offence to enter a suicide pact
- if the actions of one person in the pact killed the other person and not themselves it would be manslaughter and
- if the actions were self inflicted then the survivor is guilty of being a party to the offence

Question 57

What types of things fall into the category of dangerous things discussed in s156 of the Crimes Act 1961?

Answer 57

Section 156 of the Crimes Act 1961 sets out the statutory duty of people in charge of dangerous things to take reasonable precautions to ensure people’s safety. Such things include motor vehicles, trains, animals, ships, weapons, machinery or explosives, and may include such things as the machinery inside a mussel factory, faulty scaffolding that collapses because of faulty erection and inspection, unfenced holes or other industrial-type incidents, depending on the circumstances.

Question 58

S181 - concealing dead body of a child

Answer 58

Everyone who
Disposes of the dead body of a child in any manner
With intent to conceal the fact of its birth
Whetether the child died before, during or after the birth
Is liable to 2Y

Question 59

When is a hearsay statement admissibe in court?

Answer 59

When the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
Either
The maker of the statement is unavailable as a witness; or
The judge considers that undue expense or delay would be caused if the maker of the statement were requited to be a witness

Question 60

For a statement to be considered as admissible evidence under S181(1) EA06 what must you consider?

Answer 60

The nature of the statement
The contents of the statement
The circumstances relating to the making of the statement
Circumstances relating to the veracity of the person making the statement
Circumstances relating to the accurace of the observation of the person

Question 61

Define justified

Answer 61

In relation to any person means that the person is not guity of an offence and is not liable civilly.

Question 62

What does protected from criminal responsibility mean?

Answer 62

Means the person is not guilty of an offence but civil liabliity may still arise.

Question 63

What are the defences for child U10 and children 10-14

Answer 63

U10 - no person shall be convicted of an offence by reason of any act done or omittied by him
10-14 - no person shall be convicted of an offence unless they knew the act or omission was wrong or contraty to law

Question 64

Explain Forrest & Forrest

Answer 64

Two mean were charged with having sexual conduct with a 14YO. At the trial the girl produced her birth certificate and gave evidence herself. The two men successfully appealed the conviction on the gorunds the crown had not adequetly proved the girls age.

“The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victims age”

Question 65

What is the genereal rule when prosecuting child offenders

Answer 65

All child offenders will be referred to the Care and Protection co-ordinator until they reach 14.

Question 66

What court will a child age 10-13 years charged with murder or manslaughter appear in? (+)

Answer 66

Usually they are dealt with under the youth justice provision of the OT act.
Charges are filed in the district court and the first apperance is in the youth court then tranferred to the High court for trial and sentencing

Question 67

What was held in the matter of R v Clancy in relation to the best evidence concerning proof of age?

Answer 67

The best evidence as to the date and place of a child’s birth will normally be provided by a person attending at the birth or the child’s mother … Production of the birth certificate, if available, may have added to the evidence but was not essential.”

Question 68

Define insanity S23(2)

Answer 68

No person shall be convicted of an offence by reason of any act done or omitted by him when labouring under natural imbecilty or disease of the mind to such an extent as to render him incapable
Of understanding the nature and quality of the act or omission or
Of knowing that the act or omission was morally wrong having regard to the commonly accepted standards of right and wrong

Question 69

What was held i R v Cottle in relation to burden of proof?

Answer 69

As to degree of proof, it is sufficent if the pela is establshed to the satisfaction of the jury on a preponderance of probabilities without necessarily excluding all reasonable doubt

Question 70

Who is required to prove insantiy

Answer 70

The defendant is not required to prove the defence of insanity beyond reasonable doubt, but to the satisfaction of the jury on balance of probabilities

Question 71

What was held in R v Clark in relation to burden of proof of insanity?

Answer 71

The decision as to an accused’s insanity is always for the jury and a verdict inconsistent with medical evidence is not necessarily

Question 72

Outline the M’Naghten’s rules. (+)

Answer 72

The M’Naghten rules are frequently used to establish whether or not a defendant is insane. It is based on the person’s ability to think rationally, so that if a person is insane they were acting under such a defect of reason from a disease of the mind that they did not know:

• the nature and quality of thier actions or
• that what they were doing was wrong

Question 73

A disease of the mind is a question for who?

Answer 73

The judge

Question 74

What was held in R v Codere in relation to the nature and quality of acts?

Answer 74

The nature and quality of the act means the phyical character of the act. The phrase does not involve any consideration of the accused’s moral perception nor his knowledge of the moral quality of the act. This a person who is so deluded that he cuts a womans throat beleiving that he is cutting a loaf of bread would not know the nature and quality of his act

Question 75

Define automatism (+)

Answer 75

Can be described as a state of total blackout, during which a person is not conscious of thier actions and not in control of them.

Question 76

What was held in R v Cottle in relation to automatism?

Answer 76

Doing something without knowledge of it and without memory afterwards of having done it - a temporary eclipse of consciousness that nevertheless leaves the person so affected able to exercise bodily movements

Question 77

What is the cuplabibility of automatism?

Answer 77

Actions performed in a state of automatism are involutary and the common law rule is that there is no criminal liability for such conduct

Question 78

What is the courts view on voluntary automatism?

Answer 78

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

Question 79

What are two types of automatism?

Answer 79

Sane - the result of sleepwalking, a blow to the head or effects of drugs
Insane - the reusult of a mental disease

Question 80

What is a strict liabiliy offence and give an example

Answer 80

An offence where there is no mens rea needed to be proved. E.g drink driving

Question 81

When can intoxication be used as a defence?

Answer 81

• where the intoxication causes a disease of the mind (insanity)
• if the intent is reqired as an essentail element of the offence and the drunkness is such that the defence can plead a lack of intent to commit the offence
• where the intoxication causes a state of automatism.

Question 82

What was held in R v Kamipeli - crown must prove for intoxication

Answer 82

For intoxication to succeeed as a defence, all you need to establish is reasonable doubt about the defendant’s required state of mind at the time of the offence

Question 83

Discuss ingorance of the law

Answer 83

The fact the offender is ignorant of the law is not an excuse for any offence committed by them

Question 84

What is the standard of proof required to prove the defence of insanity to the satisfaction of the jury?

Answer 84

On the balance of probabilities.

Question 85

What is the likely result of a trial where the defendant is found to have been in a state of automatism from intoxication?

Answer 85

Complete acquittal

Question 86

What is the defence of compulsion?

Answer 86

A person who commits and offence under compulsion by threats of immediate death or GBH from a person who is present when the offence is committed is protected from criminal responsibility if the believes the threats will be carried out and if he is not a party to any association or conspiracy whereby he is subject to compulsion

Question 87

What was held in R v Joyce in relation to compulsion?

Answer 87

The court of appeal decided that the compulsion must be made by a person who is present when the offence is committed

Question 88

What is the courts view on entrapment?

Answer 88

In NZ the courts have rejected entrapment as a defence per se, preferring instead to rely on the discreation of the trial judge to exclude evidence that would operate unfailry agaisnt the defendant.

Entrapment happens when an enforecment officer deliberatley causes a person to commit an offence so the person can be prosecuted

Question 89

What was held in R v Lavelle in relation to entrapment (+)

Answer 89

It is permissible for undercover officers to merely provide the opportuinity for someone who is ready and willing to offence, as long as the officers did not initiate the persons interest or willingness to offend
U/C officers were providing a man an opportuinty to recruit woman involved in prostetution

Question 90

What is the justification for using force?

Answer 90

S48 - everyone is justified in using, in the defence of himself or another, such force as, in the circumstances as he beleives them to be, is reasonable to use

Question 91

What subjective criteria is permitted for the degree of force used?

Answer 91

• What are the circumstances that the defendant genuinely beleives exist (whether or not it is a mistaken beleif)
• Do you accept that the defendant genuinely beleives those facts?
• Is the force used reasobable in the circumstances believed to exist?

Question 92

What was held in R v Ranger - pre-emptive strike.

Answer 92

It is possible for self defence to be raised as a defence, even if the defendant has used a pre-emptive strike agaisnt the victim

The defendant stabbed her husband when he reached for where his guns were under the bed because she really thought the lives of her and her son were in peril.

Question 93

Define Alibi

Answer 93

The plea in a criminal charge of having been elsewhere at the material time; the fact of being elsewhere

Question 94

How many days must the notice of alibi S22(1) be given?

Answer 94

10 working days

Question 95

What must the notice of alibi include?

Answer 95

The name and address of the witness or if the 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.
The defendant must have, before giving the notice, take all reasonable steps and continue to take all reasonable steps to find the name and address of the alibi

Question 96

Proceidure when alibi witnesses are interviewed

Answer 96

1. Advise the defence counsel of the proposed interview and give hem reasonable opportuinity to be present
2. If the defendant is not represented, ensure the witness is interviewed in the presenece of some indepedent person not being a memeber of police
3. Make a copy of the witness’s signed statement taken at any such inerview available to defence consel through the prosecutor. Any information that reflects the credibility of the alibi witness can be withheld

Question 97

If the defendant intends to call an expert witness, what must they disclose to the prosecutor?

Answer 97

• any breif of evidence to be given or any rpeort provided by that witness or
• if that breif 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 10 working days before the date fixed for the defendants trial, or within any further time that the court may allow.

Question 98

Define consent - R v Cox

Answer 98

Consent must be full, voluntary, free and informed, freely and voluntary given by a person in a position to form a rational judgement

Question 99

What is the guidelines to consent regarding assault?

Answer 99

• everyone has the right to consent to a surgical operation
• everyone has a right to consent to the inflication of force not involving bodily harm
• no one has the right to consent to their death or injury likely to cause death
• no one has the right to consent to bodily harm in such a manner as to amount to breach of the peace or a prize fight
• it is uncertain to what extent any person has the right to consent to being put in danger of death or bodily harm from another

Question 100

What in effect is a defence of mistake?

Answer 100

A defence of mistake is in effect a denial of intent.

Question 101

people are considered unable to give consent if they are?

Answer 101

A child

unable to rationally understand the implications of their defence

− subject to force, threats of force or fraud.