Homicide Law and Defences Flashcards
1
Q
What are the two critical factors to consider for a charge or Murder?
A
Whether the offender intended to;
-Kill the person OR
-Cause bodily injury that the offender knew was likely to caue death
2
Q
Define homicide
A
the killing of a human being by another human being, directly or indirectly, by any means whatsoever
3
Q
What are some examples of where manlaughter would be appropriate?
A
-Failed to get an ill or injured person to medical treatment
-Driving while intoxicated or incapable and killing someone
4
Q
Murray Wright Ltd
A
Because the killing must be done by a human being, an organisation (Such as a hospital or food company) cannot be convicted as the principal offender
5
Q
In relation to manslaughter and murder, what can an organisation be convicted of?
A
Manslaughter: parties to the offence
Murder: Cannot be convicted as either the principal offender or a party, this is because the offence carries a mandatory life sentence
6
Q
When does a child become a human being?
A
When it has completely proceeded in a living state from the body of its mother, whether it has breathed or not, whether it has independant circulation or not, whether the navel string is severed or not
7
Q
When does the killing of a child become homicide?
A
If it dies in consequence of injuries received before, during or after birth
8
Q
What does culpable homicide mean and what does it include?
A
It means the killng is blameworthy. It includes Murder, manslaugter or infanticide
9
Q
When is a homicide culpable?
A
when it consists in the killing of any person by;
-an unlawful act OR
-an Omission without lawful excuse to perform or observe any legal duty OR
-Both combined
-By causing tha person by threats or fear of violence, or by deception, to do an act which causes his death OR
-Wilfully frightening a child under the age of 16 years or a sick person.
10
Q
Define an unlawful act
A
Breach of any act, regulation, rule or bylaw
11
Q
R v Myatt
A
Before a breach of any act, regulation or bylaw would be an unlawful act under section 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.
12
Q
What is an example of an unlawful act that would not constitute as culpable homicide?
A
Breach of an electoral law, because while its a breach it is not an act likely to do harm to the deceased.
13
Q
what does section 150A apply to?
A
any case where the unlawful act requires proof of negligence, or is strict or absolute liability offence
14
Q
What are some examples of where, someone can be held criminally responsible because there actions were a major departure from the standard of care expected from a reasonable person in the particular circumstances
A
Where the offender;
-committing arson
-conducting an illegal abortion where the mother dies
-supplying heroin where the person subsequently dies from an overdose
-giving a child an excessive amount of alcohol to drink
15
Q
What are some examples of common law duties that have been imposed by statute?
A
*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).
16
Q
What is an example of an unlawful act and an omission of duty at the same time?
A
to drive a car so recklessly that you kill
a pedestrian is both an unlawful act and an omission to observe your duty to
take precautions when you are in charge of a dangerous thing (s156).
17
Q
R v Tomars
A
formulates the issues in the following way:
1. Was the deceased threatened by, in fear of or deceived by the defendant?
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 defendant, in the
sense that reasonable and responsible people in the defendant’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?
18
Q
What are some examples of threats, fear or deception that resulted in homicide?
A
- jumps or falls out of a window and dies because they think they are
going to be assaulted - jumps into a river to escape an attack and drowns
- who has been assaulted and believes their life is in danger, jumps from a
train and is killed.
19
Q
What was identified in R v Corbett in relation to threats, fear of violence and deception?
A
“the victim’s conduct must be such
that it could be reasonably 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.”
20
Q
What is willfully frightening?
A
“intending to frighten, or at least be
reckless as to this”
21
Q
In relation to frightening a child or sick person does it need to be a result of a fear of violence?
A
No, may be caused by any act that frightens the child or sick
person, so long as it is done willfully
22
Q
In relation to frightening a child or sick person, what does simester brookbanks say?
A
“wilfully” would require that the offender
intended to frighten, or is at least subjectively reckless as to the risk of that.
Mens rea should be interpreted as applying to all the elements in s160(2)(e),
so that the defendant must at least have been aware of a real risk that the
victim is under 16 or sick.
23
Q
What is an example of killing by influence on the mind
A
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 under s163.
24
Q
What is section 163? (Influence of the mind)
A
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.
25
Can someone consent to being killed?
No one has the right to consent to being killed (s63). This means that, if
someone is killed, the fact they gave their consent will not affect the criminal
responsibility of anyone else involved with the killing.
26
How do you prove death?
To establish the death, you must prove the:
* 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.
27
What can you be charged with if someone gets killed in a lawful game or contest?
the death of a participant from injuries received during the
game or contest is normally treated as 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.
28
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 and compelling as to convince a jury that upon no rational
hypothesis other than murder can the facts be accounted for.
29
What are some examples of 'justified' or non culpable homicides that the perpetrator would be exempt from both criminal and civil liability?
* 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)
30
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.
31
What are the three main types of culpable homicide?
murder, manslaughter and
infanticide.
32
Is a body required to prove death of a person?
No a body is not required to prove death of a person has occurred. 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. R v Horry
33
What must you show if you are charging an offender with murder?
the defendant:
* intended to cause death, or
* knew that death was likely to ensue, or
* was reckless that death would ensue.
If such intent is not present the offence is manslaughter unless it falls within
the provisions of infanticide (section 178).
34
What is intent?
A deliberate act to get a prescribed result
35
R v Cameron
Recklessness is established if:
(a) the defendant recognised that there was a real possibility
that:
(i) his or her actions would bring about the proscribed
result; and/or
(ii) that the proscribed circumstances existed; and
(b) having regard to that risk those actions were unreasonable.
36
Define recklessness
consciously and deliberately taking an
unjustifiable risk.
37
R v Piri
Recklessness [here] involves a 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 or substantial risk”
that death would be caused:
38
Under 167(b) what do you need to establish to show the defendants state of mind?
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
39
R v Tipple
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”.
40
R v Desmond
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.
41
when killing is done in pursuit of an unlawful object what must the Courts consider?
* whether the defendant knew the acts were likely to cause death, and
* whether the defendant’s original intent (e.g. indecent assault) amounted to
an unlawful object.
42
define parties
Where 2 or more persons 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 any one 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.
43
What are the three further definitions of murder under section 168
Culpable homicide is also murder in each of the following cases, whether the
offender means or does not mean death to ensue, or knows or does not know that
death is likely to ensue:
(a) If he means to cause grievous bodily injury for the purpose of facilitating the
commission of any of the offences mentioned in subsection (2) of this section,
or facilitating the flight or avoiding the detection of the offender upon the
commission or attempted commission thereof, or for the purpose of resisting
lawful apprehension in respect of any offence whatsoever, and death ensues
from such injury:
(b) If he administers any stupefying or overpowering thing for any of the purposes
aforesaid, and death ensues from the effects thereof:
(c) If he by any means wilfully stops the breath of any person for any of the
purposes aforesaid, and death ensues from such stopping of breath
44
When committing a crime with another person and the other person kills someone, to be held responsible for it what are the requirements?
it is
not necessary to show that the secondary party knew the death was a
probable consequence of their carrying out the primary purpose. Rather it
must be shown that the secondary party knew it was a probable consequence
that the principal might do an act that would, if death ensued, bring their
conduct within the terms of section 168
45
What is the punishment for murder?
172 Punishment of murder
(1) Every one who commits murder is liable to imprisonment for life.
(2) Subsection (1) is subject to section 102 of the Sentencing Act 2002
46
What is section 102 of the sentencing act?
102 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 unjust.
(2) If a court does not impose a sentence of imprisonment for life on an offender
convicted of murder, it must give written reasons for not doing so.
47
What are the three elements of an attempted offence?
Intent (mens Rea) to commit an offence
Act (Actus reus) that they did, or omitted to do, something to achieve that end
Proximity, that their act or omission was sufficiently close
It also must be legally possible to commit the offence in the circumstances. A person. Can be convicted if the offence was physically impossible to commit
48
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:
49
Define sufficiently proximate
Generally, to prove an attempt the defendant must have done or omitted to
do some act(s) that is/are sufficiently proximate (close) to the full offence.
Effectively, the defendant must have started to commit the full offence and
have gone beyond the phase of mere preparation – this is the “all but” rule
50
R v Harpur
[The Court may] have regard to the conduct viewed cumulatively up to the point
when the conduct in question stops ... the defendant’s conduct [may] be
considered in its entirety. Considering how much remains to be done ... is always
relevant, though not determinative.
51
What is the test for proximity
* 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 offence itself?
52
Who decides if the defendant is sufficiently proximate to the full offence?
The Judge because it is a question of law
53
What is the punishment for attempted murder
Every one who attempts to commit murder is liable to imprisonment for a term not
exceeding 14 years.
54
When does section 174, counselling or attempting to procure murder, apply?
Section 174 applies where murder is not in fact committed. If the person
incited or counselled commits murder, the parties’ provisions of s 66(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 s 66(1)(d) to an attempt to murder
under s 173.
55
What are the ingredients for conspiracy to murder?
Every one is liable to imprisonment for a term 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.
56
What are the ingredients for Counselling or attempting to Procure murder
Every one is liable to imprisonment for a term 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.
57
R v Mane
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.
58
What is the penalty for Accessory after the fact to murder?
Every one is liable to imprisonment for a term not exceeding 7 years who is an accessory
after the fact to murder.
59
What are the two types of manslaughter?
* voluntary manslaughter
* involuntary manslaughter
60
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
Manlaughter (Voluntary)
61
What does involuntary manslaughter cover?
Types of unlawful killing in which the death is caused by an
unlawful act or gross negligence.
62
What does manslaughter include?
Manslaughter, then, includes culpable homicide that:
* does not come within s167 or s168
* comes within ss167 and 168, but is reduced to manslaughter because the
killing was a part of a suicide pact as defined in s180(3) of the Crimes
Act 1961.
63
What are some instances where a manslaughter charge might arise?
-Killing in a sudden fight
-By unlawful act
-By negligence
64
what is the four point test for proving an unlawful act for manslaughter?
1. The defendant must intentionally do an act
2. The act must be unlawful
3. The act must be dangerous
4. The act must cause death
65
In manslaughter by negligence what do you need to consider?
Remember that in many instances the defendant will have been engaged in a
dangerous act or in charge of a dangerous thing, so you need to follow the
standards set out in s155 and 156 to establish what, if any, negligence there
has been.
66
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 or weapons, or while administering
medical or surgical treatment.
67
What are three scenario examples of manslaughter
-using a dangerous thing riskily or negligently with the consent of the person who died, still manslaughter
-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, still manslaughter
68
What is the major departure test?
The ‘major departure’ test in s 150A(2) requires a high degree of negligence,
corresponding to the common law standard of gross negligence,
if a person is to be criminally responsible under s 160(2)(b) for manslaughter by
negligent omission to perform or observe any of the legal duties specified in
s 150A(1)(a) or under s 160(2)(a) for manslaughter by an unlawful act
requiring proof of negligence or imposing strict or absolute liability.
69
What type of test is it when determining whether a defendant was negligent and whether the negligence was a major departure?
An objective test, and that the defendant’s state of
mind is not a prerequisite to conviction for manslaughter by gross
negligence. All the circumstances of the case must be considered and a
defendant’s state of mind may be relevant to whether there was gross
negligence. This may be more readily found if, for example, the defendant
knowingly ran a risk or was indifferent to an obvious risk of death.
70
What is the punishment for manslaughter?
177 Punishment of manslaughter
(1) Every one who commits manslaughter is liable to imprisonment for life
71
If and offender intends to kill A but inadvertently strikes the fatal blow to B, is the offender still guilty of murder?
In a case where an offender intends to kill A but inadvertently strikes and kills B, the guilt of
the offender is not affected. Section 167(c) states that if the offender means to cause the
death of one person and by mistake or accident kills another, even though he did not mean to
hurt the other person, then it is murder.
72
What does the Crown needs to prove with a charge of attempted muder?
When a charge of attempt to murder is made, the Crown must establish the mens rea and
actus rea as set out in s72 of the Crimes Act 1961. An intention to kill must be proved.
73
Define voluntary manslaughter and involuntary manslaughter
. In voluntary manslaughter, mitigating circumstances (such as a suicide pact) reduce what
would otherwise be murder to manslaughter, even though the defendant may have intended
to kill or cause grievous bodily harm. Involuntary manslaughter covers those types of
unlawful killing in which death is caused by criminal negligence. In such cases there has
been no intention to kill or cause grievous bodily harm.
74
When deciding what charges to lay where someone has been killed in a sudden fight, what issues should you consider?
− self-defence
− the requisite mens rea for a murder/manslaughter charge.
75
What is infanticide?
-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 year
76
In cases of infanticide, what must you establish?
In cases of infanticide, the killing of the child must be in a manner that
would amount to culpable homicide. As well as establishing that fact, you
must prove the mother’s mind was disturbed as a consequence of the birth of
that child or of another child. The term “as a consequence” includes the
period of lactation
77
In charges of infanticide who decides about the mother state of mind?
the jury
78
If a woman is charged with murder or manslaughter in regards to her baby, what happens if the jury believes the mothers state of mind was due to the effects of childbirth?
the jury is required toreturn a special verdict of acquittal on account of insanity caused by
childbirth. However, the prosecution may file charging documents for both
infanticide and murder of an infant, and it is up to the jury to decide on the
mother’s state of mind.
79
What is section 151?
151 Duty to provide the necessaries and protect from injury
(1) Every one 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—
(a) to provide that person with necessaries; and
(b) to take reasonable steps to protect that person from injury
80
What is section 152?
152 Duty of parent or guardian to provide necessaries and protect from injury
(1) 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
81
What is section 153?
153 Duty of employers to provide necessaries
(1) Every one who as employer has contracted to provide necessary food, clothing, or
lodging for any servant or apprentice under the age of 16 years is under a 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, by such omission.
82
Define vulnerable adult
Means “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. Whether an adult is
vulnerable is a matter for objective determination and should not depend on
that person’s subjective perception.
83
What are necessaries of life?
which encompassed commodities and services
necessary to sustain life, such as food, clothing, housing, warmth and
medical care
84
What does a duty to protect from injury mean?
The duty imposed in the above sections is to take reasonable steps to protect
a vulnerable adult or child from injury. In this context “injury” encompasses
not only bodily harm directly caused by other persons but also harm arising
from human activities and non-human sources.
85
What is section 154
unlawfully abandoning or exposing any child under the age of 6 years
86
What is section 155 (doing dangerous act)
Every one who undertakes (except in case of necessity) to administer surgical or medical
treatment, or to do any other lawful act the doing of which is or may be dangerous to life, is
under a legal duty to have and 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.
87
what is section 156?
Every one who has in his charge or under his control anything whatever, whether animate or
inanimate, or who erects, makes, operates, or maintains anything whatever, 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.
88
What does anything whatever in section 156 mean?
Its extremely wide. It includes such things as motor vehicles, trains, animals, ships, weapons,
machinery and explosives
89
What is section 157
157 - Duty to avoid omissions dangerous to life
Every one 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
90
What does section 163 mean?
Section 163 concerns 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.
91
What is section 163? (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.
92
What is section 164?
164 Acceleration of death
Every one 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.
93
What doers section 165 mean?
Section 165 imposes a liability on a person who is responsible for a death if
an injury inflicted by him is an operative cause of death (directly or through
some secondary condition such as tetanus), even though it could have been
prevented with proper treatment
94
R v Blaue
Those who use violence must take their victims as they find them.
95
What is covered under 'when treatment of injury is fatal'
This provision covers situations where a person dangerously injures the
victim and, as a result, treatment is administered to the victim, and that
treatment is the immediate cause of the victim’s death. The person who
caused the injury is liable for the injury and its consequences. The degree of
that liability will rely on the mens rea element
96
What happens if life support is withdrawn on someone that is there as a result of the defendants actions?
In R v Tarei15 the Court held that the withdrawal of any form of life support
system is not “treatment” under s166 Crimes Act 1961. To withdraw life
support does not cause death but removes the possibility of extending the
person’s life through artificial means.
97
What are the two 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;
98
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. When the treatment given and it was 'not normal' like giving someone drugs they are allergic to.
99
When someone is injured and then dies after receiving treatment, what is the position of NZ law in relation to the person who inflicted the injuries?
This does not alter the position in New Zealand under ss165 and 166 of the
Crimes Act 1961: the injury must remain a substantial cause of the death
which grew from the subsequent effects and risks.
100
What are some examples of where someone dying after medical treatment did not effect the defendants criminal responsibility?
* A person was wounded in a duel and died as a result of the surgical
operation made necessary by the wound. The person who inflicted the
wound was guilty of murder.
* The deceased had been severely kicked by the defendant. A surgeon
gave the deceased some brandy to restore her, but some of it went into
her lungs. It was suggested this was the immediate cause of death.
However, the court held this did not affect the defendant’s criminal
responsibility.
* It was necessary to operate on a person as a result of an assault on him
by the defendant. The person died under the administration of
anaesthetic. It was held that this did not affect the defendant’s criminal
responsibility.
101
Ingredients for aiding and abetting suicide (179)
(a) Incites, counsels, or procures any person to commit suicide, if that person commits or
attempts to commit suicide in consequence thereof; or
(b) Aids or abets any person in the commission of suicide.
102
in what circumstance would someone be charged with manslaughter when carryout a suicide pact?
Person A and Person B enter a suicide pact, and Person A shoots Person
B, killing Person B, before shooting themselves, but Person A lives, then
Person A would be guilty of manslaughter, and not murder.
103
In what circumstance would someone be liable for party to a death in a suicide pact?
Section 180(2) makes it an offence for two people to enter into a suicide
pact, where they are both responsible for the actions that caused one of
their deaths (Person A), and where one person survives (Person B). For
example if 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 s.
179 of the Crimes Act (Aiding and Abetting Suicide).
104
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.
105
When concealing a body of a child what must the intent be?
The requirement that the act of disposal must be done with the intent of
concealing the fact of birth may be satisfied even though 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.
106
What are the provisions outlined in section 151 and 152?
Legal duties regarding provision of the necessaries and to take reasonable steps to protect
that person from injury apply to those having actual care or charge of people who are
vulnerable adults or, in the case of a parent or a person acting in the place of a parent having
actual care or charge of a child under 18 years.
107
In one incident a man stabs a woman repeatedly; the same thing happens in another incident
involving a different man and woman. As a result, both women need to undergo emergency
surgery during which both die of heart failure. The first woman suffers heart failure in an
unpredicted reaction to the anaesthetic, whereas the second woman, although she suffers the
same reaction and with the same result, wears a medic-alert badge carrying information about
her known heart condition and reaction to anaesthetic. Is there any difference in these cases?
Is anybody held legally responsible for either of their deaths? If so, who, and what would the
charge be?
If a woman is stabbed repeatedly and, during emergency surgery in relation to those wounds,
dies of a heart attack where all reasonable precautions have been taken, the person who
stabbed her initially and not the medical staff are responsible for her death. The degree of
liability depends on the element of mens rea and whether the attack was provoked. However,
if the woman was wearing a medic-alert bracelet that described her heart condition and her
reaction to anaesthetic, and the anaesthetist failed to notice it, the person who did the
stabbing would not be culpable and the anaesthetist’s actions would need to be scrutinised
under the provisions of s155 of the Crimes Act 1961 (duty of persons doing dangerous acts)
to evaluate their responsibility. Simply, the death needs to be a direct result of the initial
attack and not related to another condition.
108
What is a hearsay statement?
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.
109
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.
* 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
110
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
111
Define "protected from criminal liability
“Protected from criminal responsibility” means the person is not guilty of an
offence but civil liability may still arise.
112
What is section 21 CA 1961
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.
113
What is section 22 CA 1961
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.
114
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
115
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.
116
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
117
R v Forrest and Forrest
The best evidence possible in the circumstances should be adduced by the
prosecution in proof of [the victim's] age.”
118
What was held in R v Clancy?
“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.”
119
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:
120
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.
121
If a child between 10-13 years is charged with murder 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.
122
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
123
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.
124
What was held in R v Green in relation to insanity
The Court in R v Green23 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
125
What is an option when someone is pleading insanity?
the defendant become a restricted patient if they are a risk to the community
126
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
127
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 they must 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
128
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.
129
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 preponderance of probabilities without necessarily excluding all
reasonable doubt.
130
To what standard must defence prove the defence of insanity?
On the Balance of Probabilities
131
What kind of offence can you put in a plea of insanity for
Any offence punishable by imprisonment
132
R v Clark
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.
133
What are M'Naughtens 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
134
What is a disease of the mind?
“a term which defies
precise definition and which can comprehend mental derangement in the
widest sense”
135
What was the disease of the mind in R V Warren?
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 purpose
136
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
137
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.
138
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
139
R v Codere
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.
140
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.
141
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.
142
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.
143
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.
144
What are the two types of Automatism
Action without conscious volition
An act which is done by the muscles without any control by the mind
Sane and insane Automatism
145
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.
146
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
147
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)
148
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.
149
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.
150
When can self induced intoxication lead to a defence of autonatism?
If the evidence is sufficiently strong to support the defence
151
What is an example of a strict liability offence?
Drink Driving
152
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).
153
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
154
How do you escape liability for a strict liability offence?
Prove total absence of fault
155
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.
156
When can intoxication be used as a defence?
For any crime that requires intent
157
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.
158
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).
159
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.
160
Section 24, compulsion
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.
161
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.
162
in relation to threats of death or GBH (Compulsion), what are the two requirements?
Threats etc must be immediate and from someone present at the time
163
What is the exception to the rule that the threats must be made by someone who is present?
However, different standards may suffice where women and children act
under threats.
In R v Hudson33 where 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
164
R v JOYCE
The Court of Appeal decided that the compulsion must be made by a person who
is present when the offence is committed.
165
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”.
166
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.
167
In matters of entrapment what must the court consider?
They will asses 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.”
168
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.
169
Whats an example of Police 'over stepping the line' in entrapment matters?
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.
170
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.
171
Section 48 CA 1961
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.
172
What type of test is the initial need to use force in self defence
A Subjective test
173
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?
174
What is the section 48 test?
Reasonableness, this involves an objective view as to the degree and manner of force used.
175
Define alibi
as the plea in a criminal charge of
having been elsewhere at the material time: the fact of being elsewhere.”
176
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 section 20.
177
What is section 20?
Section 20 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.
178
What should the O/C Do once provided information on the intended alibi of the defendant?
-ensure a prosecution report (QHA)
-an active charges report are prepared on the witness.
-make enquiries to rebut the evidence
179
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.
180
What is the procedure if you do interview an alibi witness?
1. Advise the defence counsel of the proposed interview and give
them a reasonable opportunity to be present
2. 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.
3. 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).
181
If defence intend to call an expert witness what are they required to tell the prosecutor?
If the defendant intends to call an expert witness during proceedings, they
must disclose to 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)).
182
What is consent?
‘Consent’ is a person’s conscious and voluntary agreement to something
desired or proposed by another
In R v Cox44 the Court found that consent must be “full, voluntary, free and
informed … freely and voluntarily given by a person in a position to form a
rational judgment.”
Further to this, the Court in R v Cook45 found that to be effective, consent
must be “real, genuine or true consent, and may be conveyed by words or
conduct or both”.
183
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
184
What are the five guidelines to consent?
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.
185
Entrapment is not seen as a defence in NZ, what will the judge decide on instead?
Fairness or unfairness of evidence
186
What in effect is a defence of mistake?
A defence of mistake is in effect a denial of intent
187
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.
188
What is the test of self defence?
Subjective
189
Who decide whether there is evidence of self defence?
The Judge
190
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.
191
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.
192
What is the position of the courts in NZ around a defence of autonatism caused by self induced intoxication?
They're likely it street a middle course. Allowing a defence 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
