Defences

Question 1

R v Tarei

Answer 1

Withdrawal of any form of life support system is not treatment under s166 CA 61. To withdraw life support does not cause death but removes the possibility of extending the persons life through artificial means.

Question 2

Outline section 181 of the Crimes Act 1961 (Concealing a dead body of a child)

Answer 2

Every one is liable to imprisonment for a term not exceeding 2 years who disposes of the dead body of any child in any manner with intent to conceal the fact of its birth, whether the child died before, or during, or after birth

Question 3

In which Court does a youth facing a charge of murder or manslaughter appear?

Answer 3

Young persons over 14 years of age are usually dealt with under the youth justice provisions of the OT Act although charges of murder and manslaughter will be heard in the High Court following the committal process in the Youth Court.

Question 4

A Question of Law relating to whether the condition is a disease of the mind is answered by whom?

Answer 4

The Judge

Question 5

What the accused’s state of mind was at the time of the offence is a question decided by whom

Answer 5

The Jury

Question 6

What was held in R v Kamipeli

Answer 6

It does not have to be shown that the defendant was incapable of forming the mens rea, merely that, because of their drunken state, they did not have the proper state of mind to be guilty

Question 7

What is the burden of proof for insanity

Answer 7

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

Question 8

Section 153 of the Crimes Act 1961, what is the relevant age of the person who is employed?

Answer 8

Under the age of 16 years

Question 9

Where a charge of infanticide is laid, who decides on the Mothers state of mind?

Answer 9

The Jury

Question 10

Pursuant to section 22(3)(a) of the Criminal Disclosure Act 2008, the notice under subsection (1) must include:

Answer 10

(3) Without limiting subsection (1),—
(a) the notice under subsection (1) must include 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 11

Before a conviction can be obtained for manslaughter, where one of the sections referred to is section 150A (1) of the Crimes Act 1961, what must the prosecution prove?

Answer 11

A very high degree of negligence or gross negligence

Question 12

Proximity is a question of law decided by whom?

Answer 12

The Judge

Question 13

Written notice of an alibi is to be given by the defendant

Answer 13

Within 10 working days after the defendant is given notice under section 20 of the Criminal Disclosure Act 2008

Question 14

15. Define R v Cox

Answer 14

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

Question 15

16. As a general guideline, most offences within the Crimes Act 1961, will require an intent (Mens rea) of some kind. Outline a defence that would therefore be generally available:

Answer 15

The defence of intoxication will be available to the defence to establish that the defendant did not have the required intent to carry out the offence

Question 16

17. Provide an overview of the culpability of persons involved in suicide pacts

Answer 16

Any survivor of a suicide pact is guilty of being a party to a death (if death of another person within the pact ensues)

Question 17

18. Outline section 25 of the Crimes Act 1961, ignorance of the law:

Answer 17

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

Question 18

1. Outline “M’Naghten’s rules”

Answer 18

The M’Naghten’s rules (or test) is 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 19

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

Answer 19

• 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 20

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

Answer 20

Counselling or attempting to procure murder requires that the offence is to be committed in New Zealand, whereas with conspiracy to murder, the murder can take place in New Zealand 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 21

4. Section 159(1) & (2) of the Crimes Act 1961 defines when a child becomes a human being and is therefore able to be murdered under section 158. Detail the provisions of section 159(1) & (2).

Answer 21

159(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.

159(2) the killing of such child is homicide if it dies in consequence of injuries received before, during, or after birth.

Question 22

5. Define Homicide, Section 158 of the Crimes Act 1961

Answer 22

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

Question 23

6. What was held in R v Mane?

Answer 23

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 24

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

Answer 24

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.

Question 25

8. What does R v Myatt state about an unlawful act in respect of section 160(2)(a) of the Crimes Act 1961?

Answer 25

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

Question 26

9. What was held in R v Tomars

Answer 26

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?

Question 27

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

Answer 27

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

Question 28

11. What is meant by the term “justified?” Provide two examples:

Answer 28

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).

Question 29

12. Why is attempted murder one of the most difficult offences in the Crimes Act 1961 to prove beyond reasonable doubt?

Answer 29

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 30

13. What are the ingredients to accessory after the fact to murder?

Answer 30

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 31

14. Define the term “Suicide Pact” s180(3) Crimes Act 1961

Answer 31

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 32

15. Discuss the case Forrest & Forrest and outline the case law

Answer 32

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.

Question 33

16. How do New Zealand Courts deal with a defence of Automatism arising out of taking alcohol and / or drugs?

Answer 33

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

Question 34

17. List the ingredients of Section 48 of the Crimes Act 1961 (Self-defence or defence of another).

Answer 34

Every one 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 35

18. What was held in R v Ranger

Answer 35

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 36

19. Provide three guidelines in respect of consent regarding assault.

Answer 36

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.

Question 37

20. 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 37

* 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 over bridge into the path of an approaching car * Conducting an illegal abortion.

Question 38

21. In relation to Section 160(2)(d) of the Crimes Act 1961,give two practical examples of culpable homicide which has been caused by the victims actions, prompted by threats on fear of violence

Answer 38

1. Jumps or falls out of a window because they think they are going to be assaulted 2. Jumps into a river to escape an attack and drowns 3. Who has been assaulted and believes their life is in danger, jumps from a train and is killed.

Question 39

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

Answer 39

* 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 40

24. Section 168(1)(a) of the Crimes Act 1961 refers to the term “grievous bodily injury” what does this mean and give an example of such an injury:

Answer 40

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 41

25. In the test for proximity, Simester and Brockbanks (Principles of Criminal Law 224) suggest the following questions should be asked in determining the point at which an act of mere preparation of committing a crime may become an attempt. What are those two questions?

Answer 41

* 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 42

26. Give an example when murder might be reduced to manslaughter even though the accused intended to kill or cause grievous bodily harm

Answer 42

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 43

27. What is involuntary manslaughter?

Answer 43

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

Question 44

28. Define Alibi

Answer 44

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

Question 45

29. What must the Defendant include in a notice of alibi?

Answer 45

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 46

30. Define “Attempts” under section 72(1) of the Crimes Act 1961

Answer 46

Every one 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.

Question 47

31. Outline culpable homicide section160(1) & (2) of the Crimes Act 1961

Answer 47

(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

Question 48

32. Explain what is meant by section 160(2)(b) of the Crimes Act 1961, omission to perform a legal duty.

Answer 48

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.

Question 49

33. Define “wilfully frightening”

Answer 49

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

Question 50

34. Explain R v Horry

Answer 50

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 51

36. What are the legal duties of a parent/guardian under section 152 of the Crimes Act 1961?

Answer 51

Every one 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.

Question 52

37. What are the ingredients of section 154 of the Crimes Act 1961, abandoning a child under 6?

Answer 52

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

Question 53

38. Outline the culpability for children under 10 and children 10-13 years.

Answer 53

* 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. * 10-13yrs - 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.

Question 54

39. Define insanity by completing the sentence

Answer 54

No person shall be convicted of an offence by reason of an act done or omitted by him when 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 55

40. What was held in R v Cottle? (Burden of Proof of insanity)

Answer 55

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 56

41. What was held in R v Lipman?

Answer 56

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 57

42. What is a “strict liability” offence?

Answer 57

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 58

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

Answer 58

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

Question 59

44. Explain entrapment

Answer 59

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

Question 60

45. Give two circumstances where culpable homicide is murder

Answer 60

(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 his object should be effected without hurting any one.

Question 61

46. Define “Legal Duty”

Answer 61

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

Question 62

47. Outline section 163 of the Crimes Act 1961

Answer 62

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.

Question 63

48. What is required state of mind for section 167(b) of the Crimes Act 1961?

Answer 63

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.

Question 64

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

Answer 64

* 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.

Question 65

50. Outline R v Blaue

Answer 65

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

Question 66

51. A hearsay statement is admissible in any proceeding if:

Answer 66

(a) the circumstances relating to the statement provide reasonable assurance 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

Question 67

52. What was held in R v Clancy?

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

53. Define Automatism

Answer 68

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.

Question 69

54. What is “Sane” and “Insane” Automatism?

Answer 69

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 between: 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.

Question 70

55. What is the Courts view of entrapment?

Answer 70

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.

Question 71

56. Outline the subjective and objective tests relating to section 48 of the Crimes Act 1961

Answer 71

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 force used

Question 72

57. What was held in Police v Lavelle?

Answer 72

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 73

58. What is the procedure when alibi witnesses are interviewed?

Answer 73

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 a witness’s 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).

Question 74

59. If the Defendant intends to call an expert witness during proceedings, what must they disclose to the Prosecution?

Answer 74

* 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 defendants hearing or trial, or within any further time that the court may allow (s23(1))