Bully

Question 1

Define Homicide, S158 CA 1961

Answer 1

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

Question 2

List two cases where culpable homicide is murder

Answer 2

(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 means 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 his object should be effected without hurting anyone

Question 3

Define legal duty

Answer 3

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

Question 4

In common law, allegations of culpable homicide have been supported where the offenders have caused death by particular circumstances. Name any four of these circumstances

Answer 4

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 or concrete from a motor way overbridge into the path of an oncoming car
Conducting an illegal abortion

Question 5

In relation to s160(2)(d) CA 1961, give two practical examples of culpable homicide which has been caused by the victim’s actions, prompted by threats or fear of violence

Answer 5

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 a train and is killed

Question 6

To establish proof of death, in relation to homicide, you must prove three key elements

Answer 6

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

Death can be proved by direct and/or circumstantial evidence

Question 7

Outline culpable homicide s160(1) & (2) CA 1961

Answer 7

(1) Homicide may be either culpable or not culpable

(2) Homicide is culpable when it consists of 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 willfully frightening a child under the age of 16 years or a sick person

Question 8

Explain what is meant by s160(2)(b) CA 1961

Answer 8

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

Question 9

State the ingredients of infanticide s178 CA 1961

Answer 9

Where a woman causes the death of any child of hers under the age of 10years in a manner that amounts to culpable homicide, and where at the time of the offence the balance in 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

Question 10

s159(1) and (2) CA 1961 defines when a child becomes a human being and is therefore able to be murdered under s158. Detail the provisions of s159(1) and (2)

Answer 10

s159(1) - A child becomes a human being within the meaning of this act when it has completely proceeded in a living state from the body of its mother, whether it has breathed or not, whether it has an independent circulation or not, and whether the navel string is severed or not

s159(2) - The killing of such a child is homicide if it dies in consequence of injuries received before, during, or after birth

Question 11

List the difference between counselling or attempting to procure murder (s174) and conspiracy to murder (s175)

Answer 11

Counselling or Attempting to procure murder requires that the offence is to be committed in NZ, whereas with conspiracy 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 or whether murder is committed or not

Question 12

What are the ingredients to accessory after the fact to murder

Answer 12

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 conviction

Question 13

Why is attempted murder one of the most difficult offences in the CA 1961 to prove beyond a reasonable doubt

Answer 13

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

Question 14

s168(1)(a) CA 1961 refers to the term ‘grievous bodily injury’ what does this mean and give an example of such an injury

Answer 14

In subsection (1)(a) grievous bodily injury means harm that is very serious, such as injury to a vital organ.

To come within subsection (1)(c) the stopping of the victim’s breath must be done wilfully

Question 15

In the test for proximity Simester and Brookbanks suggest the following questions should be asked in determining the point at which an act or mere preparation of committing a crime may become an attempt. What are those two questions?

Answer 15

Has the offender done anything more than getting himself into a position from which he could embark on an actual attempt, or

Has the offender actually commenced execution; that is to say, has he taken a step in the actual crime itself

Question 16

Give an example when murder might be reduced to manslaughter even though the accused intended to kill or cause GBH

Answer 16

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

Question 17

Involuntary manslaughter

Answer 17

Covers those types of unlawful killings 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

Question 18

Define attempts under s72(1) CA 1961

Answer 18

Everyone who, having an intention 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

Question 19

What is the required state of mind for s167(b) CA 1961

Answer 19

To show that the defendant’s state of mind meets the provisions of s167(b) you must establish that the defendant:
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

Question 20

s168 - Further definition of murder

Answer 20

(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 ensues from the effects thereof
(c) If he by any means wilfully stops the breath of any person for any of the purposes aforesaid, and death ensues from such stopping of breath

Question 21

List four statutory legal duties in respect of the Crimes Act 1961

Answer 21

Provide the necessaries and protect from injury (s151)

Provide necessaries and protect from injury to your charges when you are a parent or guardian (s152)

Provide necessaries as an employer (s153)

Use reasonable knowledge and skill when performing dangerous acts, such as surgery (s155)

Take precautions when in charge of dangerous things, such as machinery (s156)

Avoid omissions that will endanger life (s157)

Question 22

What are the legal duties of a parent/guardian - s152

Answer 22

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

Question 23

Ingredients of s154 CA 1961, abandoning a child under 6

Answer 23

Everyone is liable to a term of imprisonment not exceeding 7 years who
unlawfully
Abandons or exposes
Any child under the age of 6yrs

Question 24

Define wilfully frightening

Answer 24

Wilfully frightening is regarded as:

Intending to frighten or at least be reckless as to this

Question 25

In general, no one is criminally responsible for the killing of another by any influence of the mind. The exceptions to this rule are:

Answer 25

Wilfully frightening a child under 16 years of age

Wilfully frightening a sick person (mentally or physically)

Question 26

Define the term ‘suicide pact’ s180(3) CA 1961

Answer 26

For the purposes of this section the term suicide pact means 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

Question 27

A hearsay statement is admissible in any proceeding if:

Answer 27

(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
(b) 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 required to be a witness

Question 28

Outline M’Naghten’s rules

Answer 28

M’Naghten’s 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 their actions, or
• that what they were doing was wrong

Question 29

What was held in R v Mane

Answer 29

For a person to be an accessory the offence must be complete at the time of the criminal involvement. One cannot be convicted of being an accessory 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 30

What does R v Myatt site about an unlawful act in respect of s160(2)(a) CA 1961

Answer 30

Before a breach of any act, regulation 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 31

What was held in R v Tomars

Answer 31

Formulates the issues in the following ways:

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

Question 32

What is meant by the term ‘justified’? Provide two examples

Answer 32

Section 2 provides that when an act is justified the perpetrator is exempt from both criminal and civil liability. Examples of such act 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 anyone (s41)

Question 33

Discuss the case Forrest & Forrest and outline the case law

Answer 33

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 girls age.

The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victim’s age.

Question 34

How do nz courts deal with a defence of automatism arising out of taking alcohol and/or drugs?

Answer 34

In nz 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 disallow the defence where the state of mind is obviously self-induced, the person is blameworthy, and the consequences could have been expected.

Question 35

List the ingredients of s48

Answer 35

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

Question 36

What was held in R v Ranger

Answer 36

If this accused did really think that the lives of herself and her son were in peril because of the deceased, enraged after the struggle, might attempt to shoot them with a rifle near at hand, then it would be going too far, we think, to say that the jury could not entertain a reasonable doubt as to whether a pre-emptive strike with a knife would be reasonable force in all the circumstances

Question 37

Provide three guidelines in respect of consent regarding assault

Answer 37

1. Everyone has the 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.

Question 38

To establish proof of death, in relation to homicide, you must prove three key elements, they are

Answer 38

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

Death can be proved by direct and/or circumstantial evidence

Question 39

Define alibi

Answer 39

An alibi is the plea in a criminal case of having been elsewhere at the material time; the fact of being elsewhere

Question 40

What must the defendant include in a notice of alibi

Answer 40

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 that witness

Question 41

Explain R v Horry

Answer 41

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 cogent and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for

Question 42

Outline the culpability of children under 10 and children 10-13 years

Answer 42

Under 10 - A child aged under 10 yrs 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

10-13yrs - For children aged between 10 and 13 yrs 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

Question 43

What was held in R v Cottle (burden of proof of insanity)

Answer 43

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 necessarily excluding all reasonable doubt

Question 44

Define insanity s23(2)

Answer 44

Labouring under natural imbecility or disease of the mind to such an extent as to render him incapable -

(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

Question 45

What was held in R v Lipman

Answer 45

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 46

What is a strict liability offence

Answer 46

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

Question 47

What 3 points must be satisfied before a defence of compulsion can be used?

Answer 47

A person is protected from criminal responsibility if 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.

The accused must have genuinely believed the threats

The accused must not be a party to any association or conspiracy involved in carrying out the threats

Question 48

Explain entrapment

Answer 48

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

Question 49

Outline s163 of, the Crimes Act 1961

Answer 49

No one is criminally responsible for the killing of another by any influence of the mind alone, except by wilfully frightening a child under the age of 16yrs 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

Question 50

You cannot use the defence of consent to assault in the following cases

Answer 50

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

Question 51

Outline R v Blaue

Answer 51

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

Question 52

What was held in R v Clancy

Answer 52

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 a child’s mother. Production of the birth certificate, if available, may have added to the evidence but was not essential

Question 53

Define automatism

Answer 53

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

Question 54

What is sane and insane automatism

Answer 54

Sane automatism - The result of sleepwalking, a blow to the head or the effects of drugs

Insane automatism - The result of a mental disease

Question 55

What is the courts view of entrapment

Answer 55

In NZ 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

Question 56

Outline the subjective and objective tests relating to s48

Answer 56

Once the accused has decided that use of force was required (a subjective view), s48 then introduces a test of reasonableness which involves an objective view as to the degree and manner of the force used

Question 57

What was held in Police v Lavelle

Answer 57

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

Question 58

What is the procedure when an alibi witness are interviewed

Answer 58

The O/C case should not interview an alibi witness unless the prosecutor requests them to do so. If an interview if 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 a witness’s signed statement taken at such an interview available to defence counsel through the prosecutor. Any info that reflects on the credibility of the witness can be withheld under s16(1)(o)

Question 59

If the defendant intends to call an expert witness during proceedings, what must they disclose to the prosecution

Answer 59

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 evidence to be given and the conclusions of any report to be provided

This info must be disclosed at least 14 days before the date fixed for the defendant’s hearing at trial, or within any further timeframe that the court may allow (s23(1))