HOMICIDE LAW & DEFENCES

Question 1

List the three main types of culpable homicide.

Answer 1

Murder, manslaughter, infanticide

Culpable = blameworthy

Question 2

What are the 2 critical factors to consider when deciding whether a charge should be murder or manslaughter?

Answer 2

Whether the offender intended to:
- kill the person
or
- cause bodily injury that the offender knew was likely to cause death

Question 3

Define homicide

What section do you find this definition in?

Answer 3

Section 158, CA 1961 - Homicide defined

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

Question 4

Can an organisation be convicted of murder or manslaughter?

Answer 4

For murder, NO an organisation cannot be convicted, either as a principal offender or a party, because the offence carries a mandatory life sentence.

For manslaughter, YES. An organisation can be convicted as a party to manslaughter - Section 66(1)

Murray Wright Ltd (case law)

Question 5

Murray Wright Ltd (case law)

Answer 5

Because the killing must be done by a human being, an organisation (such as a hospital or food company) cannot be convicted as a principal offender of a murder.

Question 6

When does a child become a human being according to Section 159(1), CA 1961?

Answer 6

159 - Killing of a child

(1) A child becomes a human being within the meaning of this Act when it has completely proceeded in a living state from the body of its mother, whether it has breathed or not, whether it has an independent circulation or not, and whether the navel string is severed or not.

Question 7

Section 160(2), CA 1961 sets out that a homicide is culpable when the victim is killed in 1 of 5 certain ways

List these 5

Answer 7

Section 160 - Culpable homicide

(2) Homicide is culpable when it consists in the killing of any person
(a) By an unlawful act or
(b) By an omission without lawful excuse to perform or observe any legal duty or
(c) By both combined or
(d) By causing that person by threats or fear of violence or by deception to do an act which causes his death or
(e) By wilfully frightening a child under the age of 16 years or a sick person.

Acting unlawfully, omitting to act, combo of these, causing a person to act, frightening the person

(3) Except as provided in Section 178, culpable homicide is either murder or manslaughter

Question 8

R v Myatt

Answer 8

Before a breach of any Act, regulation or bylaw can be considered to be an unlawful act under s160 (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.

ie a fraud charge wouldn’t apply, because it is not an offence capable of causing bodily harm

(refers to unlawful acts)
Think My-att = My-act must be unlawful

Question 9

Explain the test contained in section 150A(2), CA 1961.

Answer 9

The omission or unlawful act by the defendant must be a major departure from the standard of care expected of a reasonable person, to whom that legal duty applies or who performs that unlawful act.

Question 10

What are the four questions posed in R v Tomars relating to Section 160(2)(d) (killing, where threats cause the victim to act in way that causes their own death)

Answer 10

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 a reasonable and responsible person 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?

Question 11

In the case of a death resulting from lawful games or contests, in what situation would a contestant possibly be found guilty of manslaughter?

Answer 11

If the contestant causes the death of another, by an act that is likely to cause serious injury.

Question 12

What must be done to establish/prove a death?

Answer 12

Must prove:

• death occurred
• deceased is identified as the person who has been killed
• the killing is culpable

Question 13

R v Horry (where a body is not located)

Answer 13

Death should be provable by such circumstances as render it morally certain and leave no ground for reasonable doubt - that the circumstantial evidence should be so cogent and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for.

Question 14

Explain the time limits outlined in section 162, CA 1961.

REPEALED

Answer 14

(1) No one is criminally responsible for the killing of another unless the death takes place within a year and a day after the cause of death.
(2) The period of a year and a day shall be reckoned inclusive of the day on which the last unlawful act contributing to the cause of death took place.
(3) Where the cause of death is an omission to fulfil a legal duty, the period shall be reckoned inclusive of the day on which such omission ceased.
(4) Where death is in part caused by an unlawful act and in part by an omission, the period shall be reckoned inclusive of the day on which the last unlawful act took place or the omission ceased, whichever happened last.

Question 15

What is defined in Section 167, CA 1961

Answer 15

167 - Murder defined

Culpable homicide is murder in each of the following cases:

(a) If the offender means to cause the death of the person killed:
(b) If the offender means to cause to the person killed any bodily injury that is known to the offender to be likely to cause death, and is reckless whether death ensues or not:
(c) If the offender means to cause death, or, being so reckless as aforesaid, means to cause such bodily injury as aforesaid to one person, and by accident or mistake kills another person, though he does not mean to hurt the person killed:
(d) If the offender for any unlawful object does an act that he knows to be likely to cause death, and thereby kills the person, though he may have desired that his object should be effected without hurting anyone.

It must be shown that death was intended, known to be likely to ensue, or there was recklessness as to whether it would ensue
If this is not the case, you may be looking at a charge of manslaughter

Question 16

What are the two types of intention in an offence?

Answer 16

An intention to commit the act and an intention to get a specific result.

Question 17

If you are charging an offender with murder under s167, what must you show in relation to the offender’s intent to cause death?

Answer 17

The defendant:

• intended to cause death or
• knew that death was likely to ensue or was reckless that death would ensue

Question 18

R v Cameron re: recklessness

Answer 18

Recklessness means the conscious and deliberate taking of an unjustified risk. In New Zealand it involves proof that the consequences complained of could well happen, together with an intention to continue the course of conduct regardless of the risk.

Question 19

What needs to be established to show that the defendant’s state of mind meets the provisions of Section 167(b)?

Answer 19

That 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

Question 20

R v Piri

Answer 20

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.

Think Proof i Risk Identified

Question 21

R v Desmond

Answer 21

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.

Applies to Section 167 - murder

Question 22

s66(2), CA 1961

Answer 22

66 Parties to offences

(2) Where two 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.

Question 23

s66(1), CA 1961

Answer 23

(1) Every one is a party to and guilty of an offence who—
(a) actually commits the offence; or
(b) does or omits an act for the purpose of aiding any person to commit the offence; or
(c) abets any person in the commission of the offence; or
(d) incites, counsels, or procures any person to commit the offence.

party = commit, omit, abet, incite

Question 24

When charging someone as a party to murder under s66(1) or (2), what must be shown in regards to the secondary party’s knowledge?

Answer 24

It is not necessary to show that the secondary knew the death was a probable consequence of carrying out the primary purpose.

However, it must be shown that the secondary 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 s168.

Question 25

What does Section 102(1), Sentencing Act 2002 say about what sentence a defendant should receive if convicted of murder

Answer 25

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.

In this event, written notice must be given.

Question 26

What does Section 72(1), CA 1961 say about what it is necessary for a person to have and do, in order to be found guilty of an attempt

Answer 26

mens rea and acts reus - must have intent, and must do an act (that is proximate).

Everyone who, having an intent to commit an offence, does or omits and act for the purpose of accomplishing his object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.

Question 27

R v Murphy

Answer 27

When proving an attempt to commit an offence it must be shown that the accused’s intention was to commit the substantive offence. For example, in a case of attempted murder it is necessary for the Crown to establish an actual intent to kill.

Question 28

Explain the term ‘sufficiently proximate’.

Answer 28

The defendant must have started to commit the full offence and have gone beyond the phase of mere preparation.

Question 29

R v Harpur

Answer 29

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.

Question 30

What are the two questions suggested by Simester and Brookbanks as a test for proximity?

Answer 30

• 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?

Question 31

What is the punishment for attempted murder and what section is it found in?

Answer 31

173 - Everyone who attempts to commit murder is liable to imprisonment for a term not exceeding 14 years

Question 32

What offence is covered in Section 174, CA 1961

Answer 32

174 - Counselling or attempting to procure murder
Everyone 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.

Question 33

What would be the appropriate charge for someone who incites, counsels or procures where murder is attempted but not committed.

Include act and section.

Answer 33

Party to Attempt to Murder

s173 and 66(1)(d), CA 1961

Question 34

s175(1), CA 1961

Answer 34

175 - Conspiracy to murder

(1) Everyone 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.

Question 35

s176, CA 1961

Answer 35

176 Accessory after the fact to murder

Everyone is liable to imprisonment for a term not exceeding 7 years who is an accessory after the fact to murder

Question 36

How does section 71(1), CA 1961 define an accessory after the fact

Answer 36

An accessory after the fact to an offence is one who, knowing any person to have been a party to the offence, receives, comforts, or assists that person or tampers with or actively suppresses any evidence against him or her, in order to enable him or her to escape after arrest or to avoid arrest or conviction.

Question 37

R v Mane

Answer 37

Short version: To be considered an accessory the acts done by the person must be after the completion of the offence.

Long version: For a person to be an accessory the offence must be complete at the time of the criminal involvement. One cannot be convicted of being an accessory after the fact of murder when the actus reus of the alleged criminal conduct was wholly completed before the offence of homicide was completed.

Question 38

Identify and explain the two different types of manslaughter in common law.

Answer 38

Voluntary manslaughter - mitigating circumstances (eg. suicide pact) reduce what would otherwise be murder to manslaughter even though defendant may have had intent to kill or cause GBH.

Involuntary manslaughter - Death is caused by an unlawful act or gross negligence. No intent to kill or cause GBH.

Question 39

When you come across a killing that is a result of a sudden fight, what needs to be considered?

Answer 39

Whether there was

• self-defence
• the requisite mens rea for a murder charge

Question 40

When there is a killing in a sudden fight, outline the different ways in which the killing could be viewed.

Answer 40

• Homicide could be justified as having arisen out of self-defence (s48). Proper verdict would be an acquittal.
• If the fact there was a fight negates that the defendant had the required mens rea to bring a charge of murder within s167 the proper verdict is manslaughter.

Question 41

What is the four point test outlined in Newbury and Jones for proving an unlawful act for manslaughter?

Answer 41

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

The acts of the defendant are DUDI - death, unlawful, dangerous, intentional

Question 42

What is the punishment / penalty for manslaughter?

Answer 42

Everyone who commits manslaughter is liable to imprisonment for life.

Question 43

What offence is covered in Section 178(1), CA 1961

Answer 43

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 three years.

Question 44

In charges of infanticide, who decides on the mother’s state of mind?

Answer 44

The jury

Question 45

Define the term ‘vulnerable adult’.

Answer 45

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.

Question 46

Section 154, CA 1961

Answer 46

154 - Abandoning child under 6

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

Question 47

According to s163, noone is criminally responsible for the killing of another by any influence on the mind alone or by any disorder or disease arising from such influence, with two exceptions. What are those exceptions?

Answer 47

No one is responsible for killing another through influencing the mind of the victim alone

Except - Wilfully frightening a child under the age of 16 years or a sick person

Question 48

What offence is covered in section 165, CA 1961

Answer 48

165 Causing death that might have been prevented

Every one 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.

Question 49

What offence is covered in section 166, CA 1961

Answer 49

166 Causing injury the treatment of which causes death

Every one 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.

Question 50

Outline R v Blaue. What was the finding in this case?

Answer 50

The victim (JW) had been stabbed but refused blood transfusion on religious grounds. Despite warning she persisted and died the following day. Cause of death was bleeding into pleural cavity caused by stabbing. Appeal against conviction of manslaughter on ground that her refusal was unreasonable and broke chain of causation…dismissed.

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

Question 51

What was held in R v Tarei in regards to life support? (Not verbatim)

Answer 51

The withdrawal of any form of life support system is not ‘treatment’ under s166, CA 1961. To withdraw life support does not cause death but removes the possibility of extending the person’s life through artificial means.

Question 52

What were the two rules stated by The English Court of Appeal in R v Jordan?

Answer 52

• 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,

Question 53

Define the term ‘novus actus interviens’.

Answer 53

[Latin: a new intervening act] An intervening act that breaks the chain of causation.

Question 54

Outline R v Bristowe.

Answer 54

A woman placed weed killer in beer bottle to be drunk by her husband. Husband became ill and was treated in hospital for alcoholism over five days then died. Death found to be due to arsenic and Court ruled that causal chain of responsibility was not broken by unsatisfactory treatment.

Question 55

What offence is covered in section 179(1), CA 1961

Answer 55

179 Aiding and abetting suicide

(1) Every one is liable to imprisonment for a term not exceeding 14 years who—
(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

Question 56

What offence is covered in section 180(1) and (2), CA 1961

Answer 56

180 Suicide pact

(1) Every one who in pursuance of a suicide pact kills any other person is guilty of manslaughter and NOT of murder, and is liable accordingly.
(2) Where 2 or more persons enter into a suicide pact, and in pursuance of it 1 or more of them kills himself or herself, any survivor is guilty of being a PARTY to a death under a suicide pact contrary to this subsection and is liable to imprisonment for a term not exceeding 5 years; but he or she shall not be convicted of an offence against section 179.

Question 57

What offence is covered in section 181, CA 1961

Answer 57

181 Concealing dead body of child

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

Question 58

Define the term ‘justified’.

Answer 58

The person is not guilty of an offence and is not liable civilly.

Question 59

Define the term ‘protected from criminal responsibility’.

Answer 59

The person is not guilty of an offence but civil liability may still arise.

Question 60

Outline the defences for children including section.

Answer 60

21 Children under 10
(1) No person shall be convicted of an offence by reason of any act done or omitted by him or her when under the age of 10 years.

22 Children between 10 and 14
(1) No person shall be convicted of an offence by reason of any act done or omitted by him or her when of the age of 10 but under the age of 14 years, unless he or she knew either that the act or omission was wrong or that it was contrary to law.

Question 61

R v Forrest and Forrest

Answer 61

The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victim’s age.

Question 62

Explain the only 3 situations in which proceedings may lawfully be commenced under the Criminal Procedure Act 2011 against a child alleged to have committed an offence in s272(1), CYPF Act 1989.

Answer 62

(a) where the child is of or over the age of 10 years, and the offence is murder or manslaughter:
(b) where the child is aged 12 or 13 years, and the offence is one (other than murder or manslaughter) for which the maximum penalty available is or includes imprisonment for life or for at least 14 years:
(c) where the child is aged 12 or 13 years and is a previous offender under subsection (1A) or (1B), and the offence is one (other than murder or manslaughter) for which the maximum penalty available is or includes imprisonment for at least 10 years but less than 14 years.

Question 63

A child aged 10-13 yrs is alleged to have committed murder or manslaughter.
In what court are charges filed?
In what court will the first appearance be?
To what court does the case automatically transfer?

Answer 63

In what court are charges filed? DISTRICT
In what court will the first appearance be? YOUTH
To what court does the case automatically transfer? HIGH

Question 64

What was held in R v Clancy in relation to evidence of age? (Not verbatim)

Answer 64

The complainant’s birth certificate was not produced, however it was held that in that case evidence of the complainant’s date of birth given by her mother was sufficient.

Question 65

Section 23(2), CA 1961

Answer 65

23 Insanity

(1) everyone is sane until the contrary is proven

(2) No person shall be convicted of an offence by reason of an act done or omitted by him or her when labouring under natural imbecility or disease of the mind to such an extent as to render him or her 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 act can be used as evidence the defendant was in a state of mind that renders them irresponsible for the act

Question 66

R v Cottle re: the defence of insanity

Answer 66

As to degree of proof, it is sufficient if the plea is established to the satisfaction of the jury on a preponderance of probabilities without necessarily excluding all reasonable doubt.

Question 67

R v Clark re: insanity

Answer 67

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 the evidence which in this case shows that the accused did not and had been unable to know that his act was morally wrong.

Question 68

Outline M’Naghten’s rules.

Answer 68

If a person is insane they were acting under such a defect of reason from a disease of the mind (so mentally deranged) that they did not know:

• the nature and quality of their actions OR
• that what they were doing was wrong.

The rules are used to establish if a person is insane, based on the ability to think rationally

R v Codere is the case law for the nature and quality of the act.

Question 69

Who decides whether a particular condition is a disease of the mind?

Answer 69

Judge.

A disease of the mind is concerned with memory, understanding etc more than physical damage to the brain - a blow to the head, or drug use doesn’t count

Question 70

R v Codere

Answer 70

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.

Question 71

Define automatism.

Answer 71

A state of total blackout during which a person is not conscious of, or in control of their actions

Question 72

Definition of automatism in R v Cottle

Answer 72

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.

Question 73

Describe the two types of automatism.

Answer 73

Sane automatism - The result of somnambulism (sleepwalking), a blow to the head or the effects of drugs.

Insane automatism - The result of a mental disease.

Question 74

In what situations might intoxication be a defence?

Answer 74

• Where the intoxication causes a disease of the mind so as to bring s23 into effect
• If intent is required as an essential element and the drunkenness is such that the defence can plead a lack of intent
• Where the intoxication causes a state of automatism (complete acquittal)

Question 75

What does R v Kamipeli say about what is required for intoxication to succeed as a defence? (Not verbatim)

Answer 75

You just need to establish reasonable doubt about the defendant’s required state of mind at the time of the offence.

Question 76

What is an offence called that does not require an intent and how can a defendant escape liability for such an offence?

Answer 76

It’s called a strict liability offence and the only way to escape liability is to prove total absence of fault.

Question 77

Section 25, CA 1961

Answer 77

25 Ignorance of law

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

Question 78

What is compulsion or duress?

Answer 78

The act of compelling a person to do something against their will.

Question 79

Compulsion, section 24(1), CA 1961

Answer 79

24 Compulsion

(1) 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 or she believes that the threats will be carried out and if he or she is not a party to any association or conspiracy whereby he or she is subject to compulsion

To be found innocent on grounds of compulsion, the defendant must believe the threat to be genuine, the threat must be on their mind at the time of their actions, and the threat must be so serious that any other reasonable person would act in the same way

Question 80

Explain the element of immediacy in the context of section 24. (Not verbatim)

Answer 80

The threats must be operating on the person’s mind at the time of the act and be so grave that they might well have caused a reasonable person placed in the same situation to act in the same way.

Question 81

Outline R v Joyce re compulsion and the findings.

Answer 81

Three offenders, Pihema, Munro and Joyce, went to Auckland service station. Pihema, with firearm, entered alone and demanded money. There was a struggle and attendant shot. All three charged with agg robbery. One defence from Joyce was compulsion. Pihema pointed rifle at him and threatened to shoot if he didn’t cooperate. Pihema inside service station while Joyce outside. Joyce therefore not threatened with immedate death or GBH by person present.

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.

Question 82

Define the term ‘mistake’ as a defence.

Answer 82

Ignorance as to matters of fact

Question 83

Explain the New Zealand courts’ attitude towards the defence of entrapment.

Answer 83

The courts have rejected entrapment as a defence per se, preferring instead to rely on the discretion of the trial judge to exclude evidence that would operate unfairly against the defendant.

Question 84

Police v Lavelle

Answer 84

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.

Question 85

Section 48, CA 1961

Answer 85

48 Self-defence and defence of another

Every one is justified in using, in the defence of himself or another, such force as, in the circumstances as he believes them to be, it is reasonable to use.

Question 86

Explain the objective and subjective tests to be considered for section 48.

Answer 86

Subjective - the defendant’s decision that force is required based on his subjective view of the circumstances
Objective - the reasonableness of the degree and manner of force used

Question 87

What three criteria to consider when evaluating the degree of force used?

Answer 87

• What are the circumstances that the defendant genuinely believes exist (whether or not mistaken)?
• Do you accept that the defendant genuinely believed those facts?
• Is the force used reasonable in the circumstances believed to exist?

circumstances, belief of defendant, reasonableness

Question 88

Section 62, CA 1961

Answer 88

62 Excess of force

Every one authorised by law to use force is criminally responsible for any excess, according to the nature and quality of the act that constitutes the excess.

Question 89

Who decides whether there is evidence of self-defence?

Answer 89

Judge

Question 90

Define the term ‘alibi’.

Answer 90

The plea in a criminal charge of having been elsewhere at the material time: the fact of being elsewhere.

Question 91

Whenever a defendant puts forward an alibi under section 22(1) the OC case must ensure what are prepared on the witness?

Answer 91

QHA and active charges report

Question 92

If the prosecutor asks the OC case to interview an alibi witness, outline the procedure to be followed.

Answer 92

1 - Advise defence counsel of proposed interview and provide opportunity to be present
2 - If defendant not represented ensure they are interviewed in presence of independent person
3 - Make copy of signed statement available to defence through prosecutor. Any info that reflects on credibility of alibi witness can be withheld.

Question 93

If the defendant intends to call an expert witness, what must they disclose to the prosecutor and in what time frame?

Answer 93

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 evidence and conclusion of any report

This must be disclosed at least 10 working days before date of trial or any further time allowed by court.

Question 94

A hearsay statement is only admissible in a proceeding if certain conditions are met. What are those conditions and where are they found?

Answer 94

s18(1), Evidence Act 2006

(1) A hearsay statement is admissible in any proceeding if
(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable, and
(b) either
(i) the maker of the statement is unavailable as a witness or
(ii) the Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness.

Question 95

What are circumstances a statement is made in, that need to be considered under section 16(1), Evidence Act 2006?

Answer 95

• nature of the statement
• contents of the statement
• 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

Question 96

Provide the Crimes Act definition of unlawful act.

Answer 96

A breach of any Act, regulation, rule or bylaw - Section 2, CA 1961

Legal duty - duty imposed by law, statute

Question 97

Explain section 160(2)(b)

Answer 97

This covers cases where nothing is done when there is a legal duty to act, or sometimes positive conduct followed by failure to discharge a legal duty. If death results it’s manslaughter (if sufficient fault) or murder (if requisite mens rea).

Question 98

Give three examples of culpable homicide caused by actions prompted by threats, fear of violence or deception.

Answer 98

• 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

Question 99

What were the findings in R v Ranger (not verbatim).

Answer 99

If this defendant did really think that the lives of herself and her son were in peril because of the deceased, enraged after the struggle, might attempt to shoot them with a rifle near at hand, then it would be going too far, we think, to say that the jury could not entertain a reasonable doubt as to whether a pre-emptive strike with a knife would be reasonable force in all the circumstances.

Question 100

What are the 3 intents in section 168?

Answer 100

If he or she 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

Question 101

What are the acts in Section 168(1)(b) and (c)?

Answer 101

(b) If he or she administers any stupefying or overpowering thing
(c) If he or she by any means wilfully stops the breath of any person

Question 102

Section 160(2)(a) deals with killing by an unlawful act.

What must be proven and case law applies

Answer 102

It must be proven that the act was not only unlawful, but was also capable of causing harm to another person eg a breach of electoral law cannot cause harm to life though it is unlawful

It must also be proved that the conduct can be objectively viewed as dangerous to life

R v Myatt

Question 103

Section 160(2)(b) deals with killings by omission

What must be proved?

Answer 103

That the death wouldn’t have occurred if the defendant had performed/observed their duty; that the omission was the cause of death

Question 104

Section 160(2)(d) deals with killing, where the defendant threatens the victim, causing the victim to do acts that cause their death

What must be proved and what case law applies in evaluating if the death was caused through threats

Answer 104

It must be proved that the fear of violence was well founded in the mind of the victim; it does not need to be proved that the course of action taken by the defendant was the only course of action that could have been taken in the circumstances

R v Tomars
1 - was the victim threatened by the defendant ?
2 - did the threats cause the victim to act in a way that caused their death?
3 - were the acts reasonably foreseeable and natural consequence of the defendant’s actions?

R v Desmond and R v Piri apply - the defendant must have foreseen there was a real risk death would ensue, recklessness is not enough

Question 105

Section 160(2)(e) deals with killing, where the defendant frightens the victim who is either sick or under 16 years

What must be proved

Answer 105

It must be proved that the defendant knew that the victim was sick or underage

It does not need to be proved that the defendant knew that the victim would be frightened by fear or violence

Question 106

What is the ‘major departure test’

Answer 106

Prosecution must prove a high degree of negligence; that the defendant knew there was a risk of death and their subsequent conduct was so bad it amounted to a criminal act/omission

Objective test

Question 107

Is insanity a legal question or a medical one

Answer 107

Legal, though expert evidence from medical professionals may be used to support a ruling of insanity

The jury decides if the defendant suffered from insanity ; where unchallenged medical evidence is supported by facts, the jury’s verdict must be founded on that evidence.

Insanity can be established on the balance of probabilities; it is not necessary for the defence to prove it beyond reasonable doubt.

Question 108

Define entrapment. Can is be used as a defence?

Answer 108

Deliberately cause a person to commit an offence.

The Courts have rejected entrapment as a defence; it is for the Judge to exclude unfair evidence against the defendant

Police v Lavelle