HOMICIDE & DEFENCES Flashcards
What are the critical factors to consider for a charge of murder?
The offender intended to:
- Kill the person, or
- Cause bodily injury that the offender knew was likely to cause death
If neither, then the charge is Manslaughter
What are examples of Manslaughter?
Failing to perform a legal duty (getting an ill or injured person medical treatment)
Acting unlawfully but didn’t foresee the possibility of death (driving intoxicated or incapable and killing someone)
What is blameworthy?
Responsible of wrongdoing and deserving of blame
What is culpable?
Deserving blame or at fault
Homicide must be culpable to be an offence
How do you ascertain whether a murder offence has been committed?
A person dies, and
- Their death was caused by another human being, and
- The actions of the other person was culpable, and
- The outcome of their actions were intentional and deliberate
An organisation can be convicted as a party to manslaughter, but cannot be convicted as a principal offender or party to a murder offence, because it is not possible for an organisation to serve the mandatory life sentence
How do you ascertain whether a manslaughter offence has been committed?
A person dies, and
Their death was caused by another human being, and
The actions of the other person was culpable, BUT
The outcome of their actions were NOT intentional and deliberate
An organisation can be convicted as a party to a Manslaughter offence s66(1) CA 1961
Murray Wright Ltd
Killing must be done by a human being. An organisation(Hospital or food company) cannot be convicted as a principal offender
What is the critical distinction between murder and manslaughter?
Whether the offender intended to kill the deceased or to harm them in a way they knew might result in death
Define Homicide
Homicide is the killing of a human being by another, directly or indirectly, by any means whatsoever
Killing of a Child s159
A child becomes a human being when it has completely proceeded in a living state from the body of its mother (breathing or not, independent circulation or not, naval string severed or not)
Killing is homicide if the child dies as consequences of injuries received before/ during/ after birth
What is culpable homicide s160?
Means the killing is blameworthy. It includes murder, manslaughter or infanticide
Ingredients of culpable homicide s160
(1) May be culpable or not. If not then not an offence
(2) Culpable homicide consists of killing a person by:
- (a) By an unlawful act, or
- (b) By an omission without lawful excuse to not perform or observe legal duty, or
- (c) By both of above, or
- (d) By causing that person by threats, fear, violence, deception, to do an act which causes death, or
- (e) By wilfully frightening a child under 16 or a sick person
(3) Except as provided in s178, culpable homicide is either murder or manslaughter
Define Unlawful Act s160(2)(a)
A breach of any act, regulation, rule, or bylaw
R v Myatt
Before it is an unlawful act, it must be an act likely to do harm to the deceased or to some class of persons of whom he was one
What is an example of unlawful act that would not constitute as culpable homicide?
Breach of an electoral role as it is not an act likely to do harm to the deceased
R v Lee
The act must be objectively dangerous
What is s150A?
Any case where the unlawful act requires proof of negligence, or is a strict or absolute liability offence
What are examples of culpable homicide?
When the offender has caused death by:
- committing arson
- giving excessive amount of alcohol to a child to drink
- placing hot cinders and straw on a drunk person
- supplying heroin to a person and they overdose
- throwing concrete from an overpass onto a moving car below
- conducting illegal abortion and the mother dies
Killing of person by omission to perform legal duty s160(2)(b)
Duties imposed by statute or common law
Death would not have occurred if and when it did had the defendant performed the duty in question. It must be a substantial and operative cause of death
What are examples of duties imposed by statute or common law?
Provide necessaries and protect
- from injury (s151)
- as a parent or guardian (s152)
- 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)
Killing of person by unlawful acts and omission of duty s160(2)(c)
Sometimes both are applicable to the same act. For example - Driving recklessly that you kill a pedestrian is unlawful, and an omission of duty to take precautions when you are in charge of a dangerous thing (car)
Killing of person by threats, fear of violence and deception s160(2)(d)
A person is guilty of culpable murder if they caused the victim to do an act, out of threats, fear of violence or deception, that resulted in their death
Must be well-founded, no need to show deceased’s action was the only means of escape
R v Tomars
- Was the deceased threatened by, in fear of, or deceived by the defendant?
- If so, did the threats, fear or deception cause the deceased to do an act that resulted in their death?
- Was the act a natural consequence of the actions of the defendant, in which a reasonable person could have foreseen the outcome?
- Did the foreseeable actions of the deceased contribute in a significant way to their death?
What was identified in R v Corbett in relation to threats, fear of violence and deception?
“the victim’s conduct must be such that it could be reasonable foreseen, is proportionate to the threat, or is within the ambit of reasonableness. Although the victim might do the wrong thing or act unwisely, it is sufficient if the reaction is in the foreseeable range”
Examples of culpable homicide caused by actions prompted by threats, fear of violence or deception
- Jumps from window and dies because they think they’re going to be assaulted
- jumps into river to escape attack and drowns
- is assaulted and life is endanger, jumps from a train and is killed
Frightening a child or sick person s160(2)(e) What does Simester and Brookbanks suggest?
“Wilfully frightening” is regarded as “intending to frighten, or at least be reckless as to this”
The defendant must be aware of a real risk that the victim is under 16 or sick
In relation to frightening a child or sick person, does it need to be a result of a fear of violence?
No, but may be caused by any act that frightens the child or sick person, so long as it is done wilfully
s163 Killing by Influence of the Mind
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
What is an example of ‘Killing by Influence on the Mind’ s163?
A man took tests at a hospital for an ongoing stomach complaint. “For a joke”, a hospital employee sent him a letter saying he had terminal, inoperable cancer. If the man had, as a consequence, committed suicide, the sender of the letter could be charged
Can someone consent to being killed (s63)?
No one has the right to consent to being killed
What is the legal view of consent to death?
The law does not recognise the right of a person to consent to their being killed. As a consequence, their consent does not affect the criminal responsibility of anyone else involved in the killing
How do you prove death?
You must prove by direct and/ or circumstantial evidence that:
- Death occurred
- Deceased is identified as the person who has been killed
- The killing is culpable
What can you be charged with if someone gets killed in a lawful game or contest (eg boxing, wrestling, football, hockey)?
Normally you would not be charged with the killing of another player if they died from injuries you caused. The death of a participant from injuries is normally treated as a non-culpable homicide.
However, if a contestant causes the death of another by an act that is likely to cause serious injury, they will be guilty of manslaughter
Is a body required to prove the death of a person?
No, a body is not required to prove death of a person has occurred
R v Horry
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 (clear, logical, convincing) and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for
Examples of non-culpable homicide
The perpetrator is exempt from both criminal and civil liability. Justified acts that result in death are:
- s48 Self defence
- s41 To prevent suicide or the commission of an offence likely to cause immediate and serious injury to the person or property of anyone
If someone is assaulted and they go on life-support, what happens to the offender?
A defendant will not be relieved of responsibility merely because a life support system is withdrawn in good faith
Murder defined (s167)
The offender means to:
- Cause the death of the person killed
- Cause any bodily injury that is known to the offender to likely cause death, and is reckless whether death ensures or not
- Cause death or bodily injury to a person, or is reckless to that, but mistakenly kills another person by accident or mistake, though he does not mean to hurt the person killed
- Do an act that he knows will likely cause death, and thereby kills any person, though he may not have desired to hurt anyone
Murder further defined (s168)
The offender means or does not mean death to ensue, or knows or does not know that death is likely to ensure:
- Cause GBH in the purpose of facilitating the commission of any offence, or the flight, or avoiding the detection of the offender upon the commission or attempt, or resisting arrest and death ensues from injury
- Administers an stupefying or overpowering thing and death ensues from the effects
- Wilfully stops the breathing of any person and death ensues
Define intent
Doing a deliberate act to get a specific result
Deliberate: More than involuntary or accidental
Specific result: Aim, object, purpose
How do you prove intent for murder?
The defendant:
- Intended to cause death, or
- Knew that death was likely to ensue, or
- Was reckless that death would ensue
The Jury decides whether the defendant had such knowledge at the time by drawing inferences from all the circumstances, and from what the offender said and did at the time
If intent is not present the offence is manslaughter, unless it falls within the provisions of infanticide (s178)
What is recklessness?
Consciously and deliberately taking an unjustified risk
Subjective test: The defendant was aware of the risk and decided to run that risk anyway
Objective test: It was unreasonable for him to do so
R v Cameron
Recklessness is established if:
(a) The defendant recognised that there was a real possibility that:
- his or her actions would bring about a proscribed result, and/ or
- that the proscribed circumstances existed, and
(b) having regard to that risk those actions were unreasonable
R v Tipple (Recklessness)
The court suggested as a general rule “recklessness” is to be given the subjective meaning.
The concept is subjective in that it requires that the offender know of, or have a conscious appreciation of the relevant risk, and it may be said that it requires “a deliberate decision to run the risk”
R v Piri (Recklessness)
Involves 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 and substantial risk” that death would be caused
What do you need to establish to show the defendants state of mind (intent) in Killing in Pursuit of an Unlawful Object s167(d)?
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
Example: Death caused by blowing up a prison wall to liberate prisoners
R v Desmond - Killing in Pursuit of an Unlawful Object s167(d)
Not only must the object be unlawful, but also the accused must know that his act is likely to cause death. It must be shown that his knowledge accompanied the act causing death
The Jury must decide whether the defendant knew that their actions at the time were likely to cause death
What must the Court consider in Killing in Pursuit of an Unlawful Object s167(d)?
Whether the defendant knew the acts were likely to cause death, and
Whether the defendant’s original intent (eg Indecent assault) amounted to an unlawful object
Define Parties to Offences (s66)
Murder committed in the execution of a common purpose
2 or more person form a common intention to prosecute any unlawful purpose, and
- to assist each other therein,
- each of them is a party to every offence committed by anyone of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose
When committing a crime with another person and the other person kills someone, to be held responsible for it, what are the requirements (Joint responsibility)?
You do not need to prove that the secondary party knew that death was a probable consequence of their unlawful activity, just that the secondary party knew it was probable the principal might do an act that would, if death resulted, bring their conduct within the terms of s168
What is the punishment for murder (s172)?
(1) Everyone who commits murder is liable to imprisonment for life
(2) Subsection (1) is subject to s102 of the Sentencing Act 2002
s102 Presumption in favour of life imprisonment for murder
(1) An offender who is convicted of murder must be sentenced to imprisonment for life unless, given the circumstances of the offence and the offender, a sentence of imprisonment for life would be manifestly (obviously) unjust
(2) If the court does not impose a sentence of imprisonment for life of an offender convicted of murder, it must give written reasons for not doing so
Attempting to commit an offence s72(1)
Everyone 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
An intention to commit the offence will be sufficient
R v Murphy (Attempt)
When proving an attempt to commit an offence it must be shown that the accused intention was to commit the substantive offence. For example, in a case of attempted murder an intention to kill must be proved by the Crown
Therefore, this requirement on the Crown means that attempted murder is one of the most difficult offences in the Crimes Act to prove beyond reasonable doubt
Define Sufficiently Proximate
To prove an attempt the defendant must have done or omitted to do some act(s) that is/are close to the full offence. The defendant must have started to commit the full offence and have done beyond the phase of mere preparation. This is the “all but” rule
R v Harpur (Attempt)
The court may have regard to the conduct viewed cumulatively up to the point when the conduct in question stops, the defendants conduct may be considered in its entirety. Considering how much remains to be done, is always relevant, though not determinative
What is the test for proximity?
Has the offender got himself into a position from which he could embark on an actual attempt, or has he taken a step in the actual offence?
If “yes” then there has been an attempt as a matter of law
If not, then the conduct is classed as preparation and is not an offence
Who decides if the defendant is sufficiently proximate to the full offence?
The Judge because it is a question of law
What is the punishment of Attempted Murder?
14 years
What are the ingredients for Counselling or Attempting to Procure Murder s174?
Imprisonment not exceeding 10 years who:
- incites
- counsels, or
- attempts
to procure any person to murder any other person in New Zealand, when that murder is not in fact committed
When does s174 ‘Counselling or Attempting to Procure Murder’ apply?
When murder is not in fact committed. If the person incited or counselled commits murder, the parties’ provisions of s66(1)(d) will apply to the inciter or counsellor
Where murder is attempted but not in fact committed, an inciter, counsellor or procurer will be liable as a party under s66(1)(d) to an attempt to murder under s173
What are the ingredients to Conspiracy to Murder s175?
Imprisonment not exceeding 10 years who
- conspires or
- agrees
with any person to murder any other person, whether the murder is to take place in New Zealand or elsewhere
s175 applies regardless of whether murder is committed or not
R v Mane (Accessory after the fact s176)
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
What do Associated Murder charges include?
- Attempt to Murder
- Counseling or attempting to procure Murder
- Conspiring to Murder
- Accessory after the fact to Murder
What are the two types of Manslaughter?
Voluntary Manslaughter (Intended to kill or cause GBH)
Involuntary Manslaughter (Caused by criminal negligence. No intention to kill or cause GBH)
If homicide arose out of self-defence, the defendant should be acquitted. If it arose out of a suicide pact the charge should be Manslaughter
If you make a suicide pact with someone, what would the charge be if you don’t get to kill yourself but the other person does?
Voluntary Manslaughter
What does Involuntary Manslaughter cover?
Types of unlawful killing in which the death is caused by an unlawful act or gross negligence.
There has been no intention to kill or cause grievous bodily harm
What are some instances where a Manslaughter charge might arise?
- Killing in a sudden fight
- By Unlawful Act
- By Negligence
What is the 4 point test for proving an unlawful act for Manslaughter (Newbury and Jones)?
- The defendant must intentionally do an act
- The act must be unlawful
- The act must be dangerous
- The act must cause death
In Manslaughter by Negligence what do you need to consider?
In many instances the defendant will have been engaged in a dangerous act or in charge of a dangerous thing. You need to follow the standards set out in s155 and s156 to establish what, if any, negligence there has been
What are some examples of where Manslaughter by Negligence may arise?
Negligence while in charge of or using trains, factory machinery, mines, motor vehicles, ships, weapons, or while administering medical or surgical treatment
What are 3 scenario examples of Manslaughter?
- Using a dangerous thing riskily or negligently with the consent of the person who died (They agreed to sit on the bonnet while you drove the car)
- Someone dies in a game or lawful contest and the defendants actions were likely to cause serious injury
- Contributory negligence, being negligent with someone else and they die
What is the ‘Major Departure’ test 150A(2)?
A person is criminally responsible if they fail to perform a legal duty or does an unlawful act, which is a major departure of care expected of a reasonable person, whom that legal duty applies. It is a very high degree of negligence or gross negligence
What type of test is it when determining whether a defendant was negligent and whether the negligence was a major departure?
The Objective test.
All the circumstances of the case must be considered and a defendants state of mind may be relevant to whether there was gross negligence. This may be readily found if the defendant knowingly ran a risk or was indifferent to an obvious risk of death
What is the Punishment for Manslaughter s177?
Everyone who commits Manslaughter is liable to imprisonment for life
However a Judge, taking all matters into consideration, may impose any penalty from a fine to life imprisonment depending on the circumstances
If an offender intends to kill A but inadvertently strikes the fatal blow to B, is the offender still guilty of Murder?
Yes, s167(c) states that if the offender means to cause the death of one person and by mistake or accident kills another, even though he didn’t not mean to hurt the other person, it is still murder
When considering what charge to press in a case where someone has been killed in a sudden fight, what issues do you need to consider?
Where there was:
- Self defence
- The requisite Mens Rea for a Murder/ Manslaughter charge
What is Infanticide s178?
Where a woman causes the death of any child of hers under the age of 10 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 the extent that she should not be held fully responsible,
She is guilty of infanticide, and not of murder or manslaughter
3 years imprisonment
In cases of infanticide, what must you establish?
The killing of a child must be in a manner that would amount to culpable homicide. You must also prove the mother’s mind was disturbed as a consequence (includes the period of lactation) of the birth of that child or another child
In charges of Infanticide, who decides about the mother’s state of mind?
The Jury
If a woman is charged with manslaughter or murder in regards to her baby, what happens if the jury believe the mother’s state of mind was due to the effects of childbirth?
The jury is required to return a special verdict of acquittal on account of insanity caused by childbirth
Duty to provide the necessaries and protect from injury s151
Everyone who has actual care or charge of a person who is a vulnerable adult and who is unable to provide himself or herself with necessaries is under a legal duty
- to provide that person with necessaries, and
- to take reasonable steps to protect that person from injury
Duty of parent or guardian to provide necessaries and protect from injury s152
Everyone 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
- to provide that child with necessaries, and
- to take reasonable steps to protect that child from injury
Duty of employers to provide necessaries s153
Everyone who as employer has contracted to provide necessary food, clothing, or lodging for any servant or apprentice under the age of 16 is under legal duty to provide the same, and is criminally responsible for omitting without lawful excuse to perform such duty if the death of that servant or apprentice is caused, or if his life is endangered or his health permanently injured
Define vulnerable adult
A person unable, by reason of detention, age, sickness, mental impairment, or any other cause, to withdraw himself or herself from the care or charge of another person
Vulnerability may be short-lived or temporary
What are necessaries of life?
Encompasses commodities and services necessary to sustain life, such as food, clothing, housing, warmth and medical care
What does a duty to protect from injury mean?
To take reasonable steps to protect a vulnerable adult or child from injury, not only bodily harm caused by other people, but also harm arising from human activities and non-human sources
Abandoning Child under 6 (s154)
Liable to imprisonment not exceeding 7 years who unlawfully abandons or exposes any child under the age of 6 years old
Duty of persons doing dangerous acts s155
Undertakes (except in case of necessity) to administer surgical, medical treatment or, to do any other lawful act which may be dangerous to life
- Is under a legal duty to use reasonable knowledge, skill, and care in doing any such act, and is criminally responsible for the consequences of omitting without lawful excuse to discharge that duty
Duty of persons in charge of dangerous things s156
Everyone who has in his charge or under his control anything whatever, whether animate or inanimate, or who erects, makes, operates, maintains anything, which in the absence of precaution or care, may endanger human life
- Is under a legal duty to take reasonable precautions against and to use reasonable care to avoid such danger, and is criminally responsible for the consequences of omitting without lawful excuse to discharge that duty
What is anything whatever?
It includes such things as motor vehicles, trains, animals, ships, weapons, machinery, explosives
Duty to avoid omissions dangerous to life s157
Everyone who undertakes to do any act the omission to do which is or may be dangerous to life is under a legal duty to do that act, and is criminally responsible for the consequences of omitting without lawful excuse to discharge that duty
What does s163 ‘Encouraging Death’ mean?
Killing someone by influencing their mind. This means that if someone was driven into an extreme anxiety state by work or domestic pressures, but had no previous mental or physical ailment, and committed suicide, the person causing the anxiety would not be culpable for the death
Acceleration of death s164
Everyone who by any act or omission causes the death of another person kills that person, although the effect of the bodily injury caused to that person was merely to hasten his death while labouring under some disorder or disease arising from some other cause
Causing death that might have been prevented s165
Everyone who by any act or omission causes the death of another person kills that person, although death from that cause might have been prevented by resorting to proper means
R v Blaue (Preventable death)
Those who use violence must take their victims as they find them
- Liability depends on the mens rea, not on the victim’s subsequent actions
Causing injury the treatment of which causes death s166
Everyone who causes to another person any bodily injury, in itself of a dangerous nature, from which death results, kills that person, although the immediate cause of death be treatment, proper or improper, applied in good faith
What happens if life support is withdrawn on someone that is there as a result of the defendants actions (R v Tarei)?
The withdrawal of any form of life support system is not ‘treatment’. To withdrawal life support does not cause death but removes the possibility of extending the person’s life through artificial means
What are the 2 rules that apply in the test to see if an injury was a substantial cause of the death?
- Death resulting from any normal treatment employed to deal with a felonious injury may be regarded as caused by the injury
- In other circumstances, it is a question of fact to establish a causal connection between the death and the felonious injury
If an injured person is treated for an injury and dies because of the treatment, when would the defendant get off being charged with murder?
When there is an intervening act that breaks the chain of causation (Novus acus Interviens)
When the treatment given and it was ‘not normal’. For example, giving someone drugs they were allergic to
When someone is injured and then dies after receiving treatment, what is the position of New Zealand law in relation to the person who inflicted the injuries?
The injury must remain a substantial cause of the death which grew from the subsequent effects and risks
What are some examples of where someone dying after medical treatment did not effect the defendants criminal responsibility?
- A person wounded in a duel and died as a result of the surgical operation. The person who inflicted the wound was guilty of murder
- The person has been severely kicked by the defendant. A surgeon gave her some brandy to restore her, but it went into her lungs causing her death. The court held that this did not affect the defendant’s criminal responsibility
- It was necessary to operate on a person as a result of an assault. The person died under the administration of anesthetic. It was held that this did not affect the defendant’s criminal responsibility
Aiding and abetting suicide s179
Not exceeding 14 years
- Incites, counsels, 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
In what circumstance would someone be charged with manslaughter when carrying out a suicide pact?
s180(1) - Person A and person B enter a suicide pact, person A shoots person B before shooting themselves, but person A lives
Person A would be guilty of manslaughter, not murder
In what circumstances would someone be liable for party to a death in a suicide pact?
s180(2) - When both are responsible for the actions but only one of them dies.
Person A and person B both self administer a high dosage of morphine and Person A dies as a result of their own actions, but person B survives the overdose.
Person B would be guilty of being a party to a death under a suicide pact and is liable to imprisonment for a term not exceeding 5 years. Person B cannot be convicted of an offence under s179 (Aiding and Abetting)
What state does the body need to be in when concealing a childs body?
A child of comparatively recent birth and must be dead when disposed of
- If the child is alive when disposed of, and then dies, it may be murder or manslaughter or in the case of the mother, infanticide
When concealing a body of a child what must the intent be?
Concealing the fact of birth even if the birth was known to some people but not others. Thus it will be enough that the intent was to conceal the birth from a particular individual
When is a hearsay statement admissible (s18 EA)?
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 required to be a witness
What is reasonable assurance in relation to a hearsay statement?
The Court must be satisfied that both the content and the person who made it, are reliable.
Circumstances to consider include:
- 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 accuracy of the observation of the person
Define the word justified
In relation to any person, “justified” means that the person is not guilty of an offence and is not liable civilly
In certain circumstances people who appear to have committed an offence are not able to be held civilly or criminally liable. In these cases a person may offer justification or excuse for their defence
Define “protected from criminal liability
“Protected from criminal responsibility” means the person is not guilty of an
offence but civil liability may still arise.
What is section 21 CA 1961
Children under 10
- No person shall be convicted of an offence by reason of any act done or omitted by him when under the age of 10 years.
What is section 22 CA 1961
Children between 10 and 14
- No person shall be convicted of an offence by reason of any act done or omitted by him when of the age of 10 but under the age of 14 years, unless he knew either that the act or omission was wrong or that it was contrary to law.
Attainment of a particular age
For all the purposes of the law of New Zealand the time at which a person attains a particular age expressed in years shall be the commencement of the relevant anniversary of the date of his birth
What is an ‘absolute defence’
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.
As well as mens rea and actus reus, what do you need to prove when children between 10 and 13 commit a crime?
That the child knew the act was wrong or was contrary to law, the onus is on prosecutions to prove this
If this knowledge cannot be shown the child cannot be criminally liable for the offence
R v Forrest and Forrest (Proof of Age)
The best evidence possible in the circumstances should be adduced by the prosecution in proof of [the victim’s] age.”
What was held in R v Clancy? (Proof of Age)
“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.”
What was held in R v Rapira in relation to the child knowing the act was wrong?
The Court discussed that the child must know that their act was wrong but need not understand that it was seriously wrong
For example: Robbing a house but not establishing that the child knew it was unlawful or wrong to rob the house
What is the general rule about child offenders?
All child offenders will be referred to the Care and Protection Co-ordinator until they reach the age of 14 years.
If a child between 10-13 years is charged with murder or manslaughter what happens in the court process?
They are usually dealt with under the
youth justice provisions of the Oranga Tamariki Act 1989.
- Charges are filed in the District Court, the first appearance takes place before the Youth Court and the case then automatically transfers to the High Court for trial and sentencing.
The same is for young person over 14 years of age
At what age can a child be sentenced to imprisonment and for what category of offence?
- 10-13 can be sentenced to imprisonment for murder and manslaughter (Cat 4)
- 14-16 Imprisonment for murder, manslaughter, cat 4 and cat 3 with max penalty of life or at least 14 years.
- Some 12 and 13 year olds can be prosecuted for certain serious offences if they have history of serious stuff and the offence is punishable by 10-14 years imprisonment
Legal definition of insanity
Every one shall be presumed to be sane at the time of doing or omitting any act until the contrary is proved
(2) 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
(3) Insanity before or after the time when he did or omitted the act, and insane delusions, though only partial, may be evidence that the offender was, at the time when he did or omitted the act, in such a condition of mind as to render him irresponsible for the
act or omission.
What was held in R v Green in relation to insanity
The Court in held that insanity is a matter for the defence to raise and the prosecution is prohibited from adducing evidence of insanity even if the accused has sought acquittal because of some state of mind not amounting to insanity
What is an option when someone is pleading insanity?
The defendant become a restricted patient if they are a risk to the community
If the defendant doesn’t put up an insanity defense can the judge bring it up to the jury as an issue?
Yes but only in exceptional circumstances
When a judge decides to make an order that the defendant is to be treated under the mental health act or under the intellectual disability act what must they be satisfied of?
That the offender’s mental impairment requires the compulsory treatment or compulsory care of the offender either in the offender’s interest, or for reasons of public safety
If there is strong evidence pointing to the defendants insanity but defence have not used insanity as a defence, what must the Judge do?
The judge must direct the jury’s attention to the defence of insanity as set out in s23 of the Crimes Act 1961.
The judge must do this even if the defence has not put forward the issue of insanity.
In such a situation the judge, in summing up before the jury deliberates its verdict, must notify the jury that if it decides to acquit the defendant it must be specific as to whether this is on the grounds of the defendant’s innocence or their insanity
R v Cottle - Burden of Proof
As to degree of proof, it is sufficient if the plea is established to the satisfaction of the jury on a majority of probabilities without necessarily excluding all reasonable doubt
To what standard must defence prove the defence of insanity?
On the Balance of Probabilities
What kind of offence can you put in a plea of insanity for
Any offence punishable by imprisonment
R v Clark (insanity)
The decision as to an accused’s insanity is always for the jury and a verdict
inconsistent with medical evidence is not necessarily unreasonable. But where unchallenged medical evidence is supported by the surrounding facts a jury’s verdict must be founded on that evidence which in this case shows that the accused did not and had been unable to know that his act was morally wrong
What are M’Naghtens Rules?
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
What is a disease of the mind?
“a term which defies precise definition and which can comprehend mental derangement in the widest sense”
What was the disease of the mind in R v Warren?
He believed he was in a time capsule, not in a car driving at speed
The Court in this matter found that a manic episode of bipolar affective
disorder with psychotic features was a disease of the mind for the purposes of s23(2)
In relation to disease of the mind, what does it focus on?
A condition may be a disease of the mind whether or not there is any damage to the brain or other physical organ, the law being concerned with the “mind” — the mental faculties of reason, memory, and understanding; and the disorder may be permanent or temporary, of short or long duration,
curable or incurable
What does disease of the mind exclude?
A temporary mental disorder caused
by some factor external to the defendant, such as a blow on the head, the absorption of drugs, alcohol, or an anaesthetic, or hypnotism
Who determines if something falls within the meaning of disease of the mind?
A judge because it is a question of law. Medical experts are permitted to say whether they regard a disorder as a disease of the mind but the decision is ultimately up to the judge
R v Codere (nature and quality of the act)
The nature and quality of the act means the physical 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. Thus a person who is so deluded that he cuts a woman’s throat believing that he is cutting a loaf of bread would not
know the nature and quality of his act.
Part of the test of insanity is that the defendant knew what they were doing was wrong, what is the test that establishes that?
The test is that the defendant knew that their acts were morally wrong – they do not need to know that they were legally wrong. If someone cannot
understand that their act is morally wrong, then they lack rational
understanding
If someone is unfit to stand trial or acquitted on insanity what may happen to the defendant?
They may be detained as a special patient or special care recipient
Who does the Judge consult with when deciding to detain, release or apply alternative orders to a defendant?
The court must decide whether to detain, release or apply alternative orders to the person. In reaching its decision, the court must consider all the circumstances, and may hear further medical evidence concerning whether release or alternative measures are safe in the public interest
R v Cottle (Automatism)
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
What are the two types of Automatism
Action without conscious volition (both sane and insane)
An act which is done by the muscles without any control by the mind
Sane: the result of sleepwalking, a blow to the head or the effects of drugs
Insane Automatism: the result of mental illness
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
What did the Court find in R v Bratty
An act which is done by the muscles without any control by the mind;
the Court found this to be such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing, such as an act done whilst suffering from concussion or whilst sleepwalking
Is there culpability with automatism?
Actions performed in a state of automatism are involuntary and the common law rule is that there is no criminal liability for such conduct
What medical conditions can cause automatism?
Sleep walking, concussion ,a brain tumour, epilepsy, arteriosclerosis
(which can cause temporary unconsciousness by interfering with the supply of blood to the brain)
Can automatism be caused by a voluntary intake of alcohol or drugs?
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
If a successful plea of automatism is entered what does that mean
If there is no question of disease of the mind, a successful plea of automatism negates intent as well as responsibility for the actus reus, and the result is an unqualified acquittal. If the defendant produces sufficient evidence that intent was lacking because they were acting in an autonomous state, then they must be acquitted as the Crown will have failed to prove the existence of the mental element in the offence
When can self induced intoxication lead to a defence of autonatism?
If the evidence is sufficiently strong to support the defence
What is an example of a strict liability offence?
Drink Driving - no mens rea need to be proved by the prosecution
What are three examples of when intoxication can be a defence?
Where the intoxication causes a disease of the mind so as to bring s23
(Insanity) of the Crimes Act 1961 into effect
If intent is required as an essential element of the offence and the
drunkenness is such that the defence can plead a lack of intent to commit
the offence
Where the intoxication causes a state of automatism (complete acquittal).
What does defence need to prove for intoxication to succeed 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
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
How do you escape liability for a strict liability offence?
Prove total absence of fault
When will a defence of intoxication not fly for any offence?
In cases of homicide and other crimes, evidence that a person formed an
intent to commit a crime and then took drink or drugs as part of the method
of committing the crime (gaining Dutch courage) will disqualify a defence
of drunkenness or automatism
When can intoxication be used as a defence?
For any crime that requires intent
What is ignorance of law?
The fact that an offender is ignorant of the law is not an excuse for any offence committed by him
Can a child claim ignorance of law?
Where a child does not know their act was contrary to law, they will not be
liable for any offence (s22 Crimes Act 1961)
What is the likely result of a trial where the defendant is found to have been in a state of automatism from
intoxication?
Complete acquittal
Compulsion s24
Subject to the provisions of this section, a person who commits an offence under compulsion by threats of immediate death or grievous bodily harm from a person who is present when the offence is committed is protected from criminal responsibility if he believes that the threats will be carried out and if he is not a party
to any association or conspiracy whereby he is subject to compulsion
When will the person be protected from criminal responsibility if they have acted on compulsion or duress?
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 defendant must have genuinely believed the threats and must not be a party to any association or conspiracy involved in carrying out the threats
In relation to threats of death or GBH (Compulsion), what are the two requirements?
The threats of death or grievous bodily harm must be immediate and from someone present at the time
What is the exception to the rule that the threats must be made by someone who is present?
Different standards may suffice where women and children act under threats
In R v Hudson two girls committed perjury to avoid threats of injury, the compulsion defence was permitted in the circumstances, as the police could not guarantee the girls’ continuous protection
R v Joyce (presence)
The Court of Appeal decided that the compulsion must be made by a person who is present when the offence is committed
When can a defence of a ‘mistake’ be used?
If the elements of an offence include a requirement of intention, knowledge,
or subjective recklessness, a person can be acquitted if there was no such
state of mind at the time of the actus reus even though that mistake of fact
may not have been based on “reasonable grounds”
A defence of mistake is in effect a denial of intent 
What is entrapment?
Entrapment occurs when an agent of an enforcement body deliberately causes a person to commit an offence, so that person can be prosecuted. It is
not a substantive defence in the sense of providing a ground upon which the
defendant is entitled to an acquittal. Of itself, entrapment does not necessarily give rise to an abuse of process
In matters of entrapment what must the court consider?
They will assess the fairness
“In assessing fairness, the court will examine the reason the defendant was
targeted, and the way in which the agent was involved in the initiation of the offending activity”
What are two different types of perceived entrapment?
Circumstances where officers have provided an opportunity to those
“predisposed” to commit certain offences AND
Situations where officers have
initiated, encouraged, or stimulated offences “by a person who would
otherwise have been a non-offender in a general sense”, and who was not “in
any event ready and available to commit the offence
Whats an example of Police ‘over stepping the line’ in entrapment matters?
R v Teki- In this case the undercover officer developed an intense personal relationship with a woman who was growing cannabis. This woman would have done anything the undercover officer asked her to do. She was charged with supplying cannabis but Justice McGechan excluded the evidence on the grounds that the evidence against the defendant was unfairly obtained due to the close personal relationship
What is the leading precedent for entrapment in New Zealand?
Police v Lavelle - 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
Section 48 CA 1961
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
What type of test is the initial need to use force in self defence
A Subjective test
What subjective criteria is degree of force initially tested on?
- What are the circumstances that the defendant genuinely believes exist
(whether or not it is a mistaken belief)? - Do you accept that the defendant genuinely believes those facts?
- Is the force used reasonable in the circumstances believed to exist?
What is the section 48 test?
Reasonableness, this involves an objective view as to the degree and manner of force used
Define alibi
As the plea in a criminal charge of
having been elsewhere at the material time: the fact of being elsewhere”
An alibi requires evidence of both time and place
If a defendant require to call an alibi witness what must they do first?
The defendant must provide the prosecutor with the particulars of any alibi witness they intend to use in
court.
Written notice of an alibi is to be given by the defendant within 10 working days after the defendant is given notice under s20
What is section 20 Criminal Disclosure Act (alibi)
S20 requires the Court or Registrar to give the defendant written notice of the requirements of section 22 and 23
- if the defendant pleads not guilty, or
- if the defendant is a child or young person, when they make their first
appearance in the Youth Court
What should the O/C do once provided information on the intended alibi of the defendant?
Ensure a prosecution report (QHA) and an active charges report are prepared on the witness
Make enquiries to rebut the evidence
As the O/C should you interview the alibi witness?
The O/C case should not interview an alibi witness unless the prosecutor
requests them to do so
What is the procedure if you do interview an alibi witness?
- Advise the defence counsel of the proposed interview and give them a reasonable opportunity to be present
- If the defendant 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)
If defence intend to call an expert witness what are they required to tell the prosecutor?
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 10 working days before the date fixed for the defendants trial, or within any further time that the court may allow s23(1)
What is consent?
‘Consent’ is a person’s conscious and voluntary agreement to something
desired or proposed by another
R v Cox - Consent must be “full, voluntary, free and informed … freely and voluntarily given by a person in a position to form a rational judgment”
R v Cook found that to be effective, consent must be “real, genuine or true consent, and may be conveyed by words or conduct or both”
What is an example where consent is excluded as a defence?
A number of sections in the Crimes Act 1961 – in particular, those relating
to indecency – specifically exclude consent as a defence
What are the five guidelines to consent?
- Everyone has a right to consent to a surgical operation
- Everyone has a right to consent to the infliction of force not involving
bodily harm - No one has a right to consent to their death or injury likely to cause
death - 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 - 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
Entrapment is not seen as a defence in NZ, what will the judge decide on instead?
Fairness or unfairness of evidence
What in effect is a defence of mistake?
A defence of mistake is in effect a denial of intent
How does the defence of entrapment apply in NZ and outline at least one case to support your answer
With the defence of entrapment in New Zealand, the courts rely on judicial discretion to exclude unfairly obtained evidence
Police v Lavalle (1979) provides police good guidance on how the courts apply judicial discretion in the context of “entrapment”. In that case, the Court of Appeal held that the undercover officers were merely providing L the opportunity to recruit (and live off the earnings) of women involved in prostitution, an activity the evidence
showed he was already willing to engage in.
What is the test of self defence?
Subjective
Who decide whether there is evidence of self defence?
The Judge
What people are considered unable to give their consent?
People are considered to be unable to give their consent if they are:
− a child
− unable to rationally understand the implications of their defence
− subject to force, threats of force or fraud
What actions do not allow for a defence of consent?
You cannot use the defence of consent in cases involving:
− 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
What is the position of the courts in NZ around a defence of autonatism caused by self induced intoxication?
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
Regarding proof of age, what is the prosecution required to produce?
The prosecution is required to produce evidence of age, for example a birth certificate, and provide evidence that identifies the defendant and the person named in the certificate.
The relevant age is that of the child at the time they committed the offence, not their age when they appear in court
From whom should you seek advice in relation to questioning of children and young persons?
Your district youth prosecutor. To ensure compliance with the CYPF Act particularly in relation to questioning children and young persons
What does protected from criminal responsibility mean?
Protected from criminal responsibility means not guilty of an offence but civil liability may still arise
What is compulsion?
Compulsion is the act of compelling a person to do something against their will
Compulsion or duress is a defence when a person acts solely as a result of threats
The threats must operate on the persons mind at the time of the offence and he or she must genuinely believe him
In relation to compulsion what does immediate mean?
It means at the scene from a person present at the time
The threat must be immediate from a person present at the offence
