Elements Of A Crime Flashcards
Elements of a crime:
General principles → That you need to know. → Building blocks.
Crime = Legal wrong → something which is a moral wrong against society as a whole.
Accountability → have to pay debt to society.
Crime leads to conviction → then punishment.
Stigma → long lasting consequences have to disclose criminal record, affect job, travel overseas.
We have to get this right.
Public process using public money.
About the offender and society, not just victim.
Regulated to ensure we dont have wrongful convictions. Greater protections then we used to.
Right to be presumed innocent before assumed guilty → S 25 of the NZBORA
Need to know what is a criminal law and not.
In New Zealand cannot be convicted of a common law offence.
Legislation:
•Section 9, the Crimes Act 1961:
–“No one shall be convicted of any offence at common law, or of any offence against any Act of the Parliament of England or the Parliament of Great Britain or the Parliament of the United Kingdom; provided that—
–(a) nothing in this section shall limit or affect the power or authority of the House of Representatives or of any court to punish for contempt:
–(b) nothing in this section shall limit or affect the jurisdiction or powers of the Court Martial, or of any officer in any of the New Zealand forces
Codified all criminal law in statutes.
201 works on the Crimes Act, but there are many other statutes which convict people of crimes.
Offence will always be defined in a statute → Section 9 of the Crimes Act.
Can’t be convicted of a common law offence → But can be convicted of Contempt of Court, but that has never happened. Exception.
Everything is codified in statute for crimes.
S20 General rule as to justifications:
S 20 (1) Crimes Act 1961
All rules and principles of the common law which render any circumstances a justification or excuse for any act or omission, or a defence to any charge, shall remain in force and apply in respect of a charge of any offence, whether under this Act or under any other enactment, except so far as they are altered by or are inconsistent with this Act or any other enactment.
Even though crimes are in statutes, defences can be in common law.
Right to claim consent for an assault → Common law defence. → Piercing ears for example.
S188 - Wounding with Intent:
S188 Crimes Act 1961 -
(1) Every one is liable to imprisonment for a term not exceeding 14 years who, with intent to cause grievous bodily harm to any one, wounds, maims, disfigures, or causes grievous bodily harm to any person.
(2)Every one is liable to imprisonment for a term not exceeding 7 years who, with intent to injure anyone, or with reckless disregard for the safety of others, wounds, maims, disfigures, or causes grievous bodily harm to any person.
Some defences are codified in statute.
S 48 Self defence → in statute, even though they started of as common law.
Follow Self Defence as codified in 188 now not common law.
Common law still plays a part, not just words of section, common law can assist in defining what a term means.
Common law can also add an additional requirement to the section.
For example Wounding → section 188 talks about “wounds”, what does wounding mean? The case of R v Waters → Defined “wounding” is breaking of skin leading to flow of blood.
R v Waters → Breaks more than the surface of skin, scratch not enough, has to break through the continuity of the skin layer.
Common law provides additional definition in this case.
S160 - Culpable Homicide:
•Section 160(2)(a) Crimes Act 1961
s160 Culpable homicide
(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
See the Court of Appeal in R v Lee [2006] 3 NZLR 42
Common law provides an additional requirement sometimes.
Section 160 → For homicide to be culpable for an unlawful act. → Additional requirement that unlawful act must be dangerous.
Section 160 does not include “dangerous” as a requirement.
“Dangerous” → More than trivial harm → R v Lee – Objectively dangeorus in that reasonable person would realise it carried a risk of harm which has to be more than trivial harm to someone.
Self Defence - s48
•Section 48 Crimes Act 1961
“Everyone is justified in using, in defence of himself or another, such force as, in the circumstances as he believes them to be, it is reasonable to use.”
See the Court of Appeal in R v Wang [1990] 2 NZLR 592
Started out as common law defences, but now we always follow how it is set out in s48, not just the words of the section that are be all or end all or go so far as add an additional requirement to the section.
Self defence → Whether the person has used reasonable force in defending themselves..
CA in R v Wang → to rely upon self defence, the threat must be an imminent threat → additional requirement that it has to be imminent, someone has to be coming at them before self defence.
Anything not imminent, have to call the police → This has not been overturned yet.
Common law adds to the section.
Concepts needing normative judgement:
•The ordinary person
•Decent
•Reasonable
•Dishonesty
All bring common sense ideas to what words mean, what would the ordinary person do, when we are looking at indecent assault, what would a like minded person consider as indecent, what would a reasonable person do in these circumstances, all bring normative judgements. What would a reasonable person have done?
Normative judgements → ideas and common sense ideas as to what words mean.
The ordinary person → what would they do?
Indecent Assault for example → is it indecent? What a right minded person would consider indecent?
Reasonable person. → what would a reasonable person do in these circumstances?
Juries for example decide what is honest. Jury should be a range of people.
The elements of a crime:
•Actus reus = the guilty act.
This refers to the physical or external elements of the offence – for example, the performance of a prohibited act.
•Mens rea = the guilty mind.
This refers to the mental element of an offence.
•Concurrence = the actus reus and mens rea must occur at the same point in time.
When looking at words of a statute → have to ensure that you look and see whether to use normative judgements, is there cases, and check section 2 (interpretation).
Elements of a crime → general principle is → actus reus (The Guilty Act).
Actus reus → the guilty act, the physical or external acts of the offence, the performance of a prohibited act. Encompasses more as well.
Mens rea → the guilty mind → the mental element, what is the state of mind of the accused.
General rule → actus reus and mens rea have to occur at the same period of time (concurrence).
If intend to kill someone at the time you hit them but dont kill them, and at time dispose of body not intending to kill them, but kill them → could be issue with concurrence.
Act that killed them did not have intention to kill at the time. → how do we make these two elements fit together → How does concurrence work?
When a person stabs someone for example, they have to have the mens rea to do it.
•Note that the actus reus must always be committed voluntarily. If the accused’s actions are not voluntary the defence of automatism can be raised.
Actus reus has to be voluntary. For example if i stand on an electric fence, and jolt and accidentally strike them. Not a voluntary act. Not mind directing body to do something.
Connection between brain and body is breaking → someone acting as an automaton. Then not a voluntary act. In rare circumstances.
RECIPE FOR A CRIME:
Actus reus + mens rea (and lack of a defence) = Criminal Offence
Actus reus and mens rea with no defence = criminal offence.
Establishing culpability:
•Identify the relevant offence- look at the section
•What are the actus reus requirements? Are they satisfied on the facts beyond a reasonable doubt?
•What are the mens rea requirements? Are they satisfied on the facts beyond a reasonable doubt?
•Did the actus reus and mens rea occur at the same point in time?
•Where there any formal defences available (for example, were the accused’s actions involuntary: automatism)
Culpability → First look at the relevant offence.
Is there the actus reus requirements (identify them), and are they satisfied on the facts beyond reasonable doubt.
Mens rea requirements, state of mind the accused must have for the offence. Can i show that on the facts beyond reasonable doubt.
Did they occur at the same time?
Formal defences available?
If no defences, if proven actus reus and mens rea you have the offence.
Elements of an offence:
Actus reus + actus reus + mens rea + no defence = offence
If they can’t prove concurrence we have a defence that prosecution cant prove, formal defence but not a real defence like self defence.
Can have more than one actus reus.
Difference between a formal defence and failure of prosecution to prove their case.
If prosection cant prove one of the actus reus or mens rea or concurrence, prosecution has failed to prove their case → this is not a formal defence.
A formal defence is → Self defence, insanity, etc.
Committed the actual offence but defence which justifies or excuses it.
Difference between formal and failure to prove case.
What kinds of things can be included in the actus reus?
Action Crimes
•For example, common assault (s 196): Applying or threatening to apply force to another person’s body.
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•What is the action?
Threat, application of force
Included in Actus Reus?
Positive acts. Punch someone etc.
S 196 common assault→ application of Force to someone’s body or threat of the application of force.
Action is application of force → actus reus you must prove.
What kinds of things can be included in the actus reus?
Where the actus reus includes an omission
•For example, section 145. It is a criminal nuisance to omit to discharge a legal duty if you knew that omission would endanger the life, safety or health of any person.
•
•
•In order to establish an omission it is necessary to establish a legal duty to act.
Actus reus can also include an omission.
Omission is a failure to act → Treat this in an actus reus.
Failure to act in circumstances where you had a legal duty to act.
For omission have to show you had a legal duty, then you have to show that the accused failed to do it.
Section 145 → Legal duty, failure to do that would endanger the life, safety or health of any person.
For example HIV person has unprotected sex knowing they have it, legal duty to take care of things that are dangerous.
Section 156 → if you have sex with someone and fail to take necessary precautions, if you know you could endanger life, safety or health of another person, the failure to take precautions treated as an omission and criminal nuisance.
Actus reus → can be an act and also failure to act when you have a legal duty to do so.
What kinds of things can be included in the actus reus?
Where the actus reus includes a status:
•For example, section 202A(4): Possession of an offensive weapon or disabling substance (in circumstances that prima facie show an intention to use it to commit an offence involving bodily injury or the threat or fear of violence).
What is the status?
Actus reus can also include a status.
Section 202A (4) → possession of offensive weapon or disabling substance, the status is the possession of the weapon itself.
Provided you can prove the status, possession of offensive weapon with the mens rea.
What kinds of things can be included in the actus reus?
Where the actus reus includes a circumstance:
For example, section 205 defines offence of bigamy which is
(1) Bigamy is—
(a) the act of a person who, being married, goes through a form of marriage or civil union in New Zealand with a third person; or
(b) the act of a person who goes through a form of marriage in New Zealand with any other person whom he or she knows to be married or in a civil union; or
•
What is the circumstance?
Actus reus can also be a circumstance that exists.
(1) Bigamy in section 205 → when you marry someone when i have the circumstance of already being married.
The circumstance in this situation is that the accused is already married.
Offences dealing with age, then the circumstance can be the age of the victim.
