ELEMENTS OF OFFENCE - AR

Question 1

WHAT IS the actus reus

Answer 1

• Physical element such as the commission of a prohibited act, an omission or causation of a prohibited act or state of affairs.
• Derived from the Latin term “actus reus,” meaning “guilty act.”

Question 2

what is the objective test for AR

Answer 2

• Objective test = external/outsiders point of view (what a reasonable person would think).

Question 3

Three types of AR

Answer 3

1. Act
2. Omissions
3. States of Affairs/Situations

Question 4

what is the mens rea

Answer 4

guilty mind, Mental element such as intention, knowledge, or recklessness, in relation to the physical element

Question 5

what must be the overlap of AR and MR for criminal liability and what is the purpose of this

Answer 5

The two must occur simultaneously to account for criminal liability. The purpose being to prevent conviction of accidental behavior.

Question 6

what is the subjective test for mr

Answer 6

Subjective test = this means that MR is determined by the internal mental state of the defendant.

Question 7

Fagan v Commissioner of Metropolitan Police
(UK) facts

Answer 7

Defendant accidently drove over police officers foot and once realized did not move off it.

Question 8

Fagan v Commissioner of Metropolitan Police
(UK) issue

Answer 8

Whether or not AR and MR occurred contemporaneously in order for it to be classified assault and Fagan convicted.

Question 9

Fagan v Commissioner of Metropolitan Police
(UK) held

Answer 9

Yes AR and MR occurred contemporaneously, Established the continuing act theory.
MR can superimpose onto the AR (the two do not have to start at the same time).

Question 10

What is an omission

Answer 10

An omission is the act of exclusion, here must be an identified legal duty to act that makes an omission punishable.

Question 11

what does express and implied liability relate to

Answer 11

omissions

Question 12

what is implied liability

Answer 12

Implied liability refers to situations where the wording of a law can reasonably be interpreted to include not only actions but also failures to act (omissions). However, it’s often unclear if Parliament intended for the law to cover omissions as well as actions.

Question 13

what is express liability

Answer 13

Expressed liability occurs when a law clearly states that failing to act (an omission) is considered an offense. For example, a statute may outline a specific duty you must fulfill, and if you don’t, you can be held liable.

Question 14

R v Miller facts

Answer 14

Defendant falls asleep with lit cigarette and it alights his mattress. When waking up to the fire he simply moves to another room.

Question 15

R v Miller
(UK)issue

Answer 15

Can the words destroy or damage include an omission (failing to do something)?

Question 16

R v Miller
(UK) held

Answer 16

Yes, the meaning of damages can be stretched to cover not just actions but failures to act as well.
If you create a dangerous situation ought be it accidental, when you subsequently become aware of the situation, you have a duty to counteract it.

Question 17

Nicholson v Department of Social Welfare facts

Answer 17

The appellant was on a welfare benefit but obtains employment so informs officer to discontinue it. However, she remains being paid the benefit for six months and spent the money.

Question 18

Nicholson v Department of Social Welfare issue

Answer 18

This case concerns the powerplay between sections 127 and 80A of the Social Security Act which contradict the legal duty.

Question 19

Nicholson v Department of Social Welfare held

Answer 19

Defendant not liable.
The two sections work in tandem as s127 sets up the general offence but the omission (and no duty) resides in 80A. You must read s127 in the spirt of 80A.

Question 20

what is the quote in Nicholson v Department of Social Welfare

Answer 20

“An offence is complete when the omission continues past the point at which a dishonesty of purpose is present (proved beyond reasonable doubt).”

Question 21

what are Statuses and States of Affairs and e.g.

Answer 21

States of affairs are offenses that make it a crime for a defendant to be in a specific situation at a certain time, regardless of how they ended up there. This means they are an exception to the general principle that criminal liability requires a voluntary action (actus reus). E.g. being drunk on a public highway

Question 22

what is prosecution not required to prove for Statuses and States of Affairs

Answer 22

Prosecution is not required to prove any action/omission for these offences, AR

Question 23

What are 2 examples of Statuses and States of Affairs in the summary offences act

Answer 23

Section 29 - being found on property without reasonable excuse
Section 30 - peeping or peering into dwellinghouse

Question 24

R v Larsoneur
(UK) facts

Answer 24

Defendant deported from the UK to Ireland, but on arrival they forced her back to the UK where she was convicted for violating her passport.

Question 25

r v larsoneur issue

Answer 25

Can you be convicted for a status offence when it was unvoluntary

Question 26

r v larosnneur held

Answer 26

Yes defendant convicted. (Decision widely criticized - if decided after Kilbride decision possibly different).
Courts have an absolute mindset in finding of status liability.

Question 27

R v Winzar facts

Answer 27

• Defendant taken to ED on a stretcher and found to be drunk. Police were then called to get him out of hospital and they took him to the station, upon where he was convicted of being found drunk in a public highway.

Question 28

R v Winzar held

Answer 28

This case demonstrates the court’s strict approach to establishing liability, as seen in R v Larsonneur. The court held that it did not need to consider the events leading up to the situation.

Question 29

causation

Answer 29

Prosecution must prove that D’s actus reus caused the prohibited result.

Question 30

Kilbride v Lake facts

Answer 30

Defendant is convicted for failing to carry current warrant of fitness but claims that it was present in car when it was parked and must have been taken.

Question 31

Kilbride v Lake

Answer 31

Can you be convicted when you did not cause or you are not responsible for the AR? (question of causation)

Question 32

Kilbride v Lake held

Answer 32

defendant not liable, The Act or omission making up the AR must be voluntary - the defendant had no control over the circumstances so chain of causation broken.

Question 33

what are justifiable act or omission

Answer 33

A justifiable or excusable act or omission occurs when you act or fail to act because there was no other option available to you—essentially, it was impossible for you to comply with the law.

Question 34

Section 20 of the Crimes Act

Answer 34

preserves common law justifications and excuses (types of defenses) as long as they haven’t been over ruled or are inconsistent/contrary with new legislation.

Question 35

explain Justification

Answer 35

When an act that would normally be consider a crime is “justified” it becomes a non-criminal act and no crime is committed

Question 36

explain excuse

Answer 36

• When an act is committed that is criminal, but the individual who performed the act is “excused” from criminal liability or punishment due to special or extenuating circumstances

Question 37

What common law defenses of the excuse type, preserved by section 20, are still recognized?

Answer 37

Necessity, Impossibility

Question 38

what is Necessity defence

Answer 38

It refers to a situation where a person has to choose between two bad options, making it hard to blame them for picking the less harmful one.

Question 39

what is the impossibility defence

Answer 39

Inability to comply means admitting to doing something the law prohibits because it was impossible not to do it. The law should not expect someone to do the impossible.

Question 40

Tifaga v Department of Labor facts

Answer 40

Immigrant had permit revoked and did not leave NZ within the 21 day time frame because did not have the sufficient funds to leave.

Question 41

tifaga v dept of labour issue

Answer 41

Was the act of staying in NZ involuntary?

Question 42

tifaga v dept of labour held

Answer 42

The appeal was dismissed, and Tifaga was convicted. The defense of impossibility was introduced but held that it cannot be claimed if, with due diligence, the outcome could have been avoided. Tifaga should have had funds reserved in case his permit was revoked