Module Flashcards
1
Q
What is the penalty for attempted murder?
A
Everyone who attempts to commit murder is liable for a term of imprisonment not exceeding 14 years
2
Q
Define R v Tarei
A
R v TAREI
Withdrawal of any form of life support system is not “treatment” under s166 of the Crimes Act 1961. To withdraw life support does not cause death but removes the possibility of extending the person’s life through artificial means.
3
Q
Outline s181 of the Crimes Act 1961 (concealing a dead body of a child)
A
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.
4
Q
In which court does a youth facing a charge of murder or manslaughter appear?
A
Young persons over 14 years of age are usually dealt with under the Youth justice provisions of the CYPF Act although charges of murder and manslaughter will be heard in the High Court following the committal process in the youth Court.
5
Q
A Question of Law relating to whether the condition is a disease of the mind is answered by whom?
A
The Judge
6
Q
What that accused’s state of mind was at the time of the offence is a question decided by whom?
A
The Jury
7
Q
What was held in R v KAMIPELI
A
R v KAMIPELI
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
8
Q
What is the burden of proof for insanity?
A
The accused is not required to prove the defence of insanity beyond reasonable doubt, but to the satisfaction of the jury on the balance of probabilities
9
Q
S153 of the Crimes Act ‘61, what is the relevant age of the person who is employed?
A
Under the age of 16 years
10
Q
Where a charge of infanticide is laid, who decides on the Mothers state of mind?
A
The Jury
11
Q
Pursuant to s22(3)(a) of the Criminal Disclosure Act ‘08, the notice under subsection (1) must include:
A
(3) Without limiting subsection (1) -
(a) the notice under subsection (1) must include the name and address of the witness or, if the name and address is not known to the defendant when the notice is given, any matter known by the defendant that might be of material assistance in finding that witness.
12
Q
Before a conviction can be obtained for manslaughter, where one of the sections referred to is s150A(1) of the Crimes Act ‘61, what must the prosecution prove?
A
A very high degree of negligence or gross negligence.
13
Q
Proximity is a question of law decided by whom?
A
The Judge
14
Q
Written notice of an alibi is to be given by the defendant:
A
Within 10 working days after the defendant is given notice under s20 of the Criminal Disclosure Act ‘08
15
Q
Define R v COX
A
R v COX
Consent must be full, voluntary, free and informed, freely and voluntarily given by a person in a position to form a rational judgement
16
Q
As a general guideline, most offences within the CA ‘61, will require an intent (Mens rea) of some kind. Outline a defence that would therefore be generally available:
A
The defence of intoxication will be available to the defence to establish that the defendant did not have the required intent to carry out the offence
17
Q
Provide an overview of the culpability of persons involved in suicide pacts
A
Any survivor of a suicide pact is guilty of being a party to death (if death of another person within the pact ensues)
18
Q
Outline s25 of the CA ‘61, ignorance of the law
A
The fact that an offender is ignorant of the law is not an excuse for any offence committed by him
19
Q
Outline “M’Naghtens’s rules”
A
The M’Naghten’s rules (or test) is frequently used to establish whether or not a defendant is insane. 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
20
Q
List four statutory legal duties in respect of the CA’61
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)
21
Q
List the difference between counselling or attempting to procure murder (s174) and conspiracy to murder (s175)
A
- Counselling or attempting to procure murder requires that the offence is to be committed in New Zealand, whereas with conspiracy to murder, the murder can take place in NZ or elsewhere.
- Counselling or attempting to procure murder only applies if the murder is not in fact committed, whereas conspiracy to murder applies regardless of whether murder is committed or not.
22
Q
Section 159(1) & (2) of the CA’61 defines when a child becomes a human being and is therefore able to be murdered under s158. Detail the provisions of s159(1) & (2)
A
s159(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.
s159(2) The killing of such child is homicide if it dies in consequence of injuries received before, during, or after birth.
23
Q
Define homicide, s158 CA’61
A
Homicide is the killing of a human being by another, directly or indirectly, by any means whatsoever.
24
Q
What was held in R v MANE?
A
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.
25
State the ingredients of infanticide (s178 CA'61)
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 years.
26
What does R v MYATT state about an unlawful act in respect of s160(2) CA'61?
```
R v MYATT
Before a breach of any Act, regulation or bylaw would be an unlawful act under s160 for the purposes of culpable homicide, it must be an act likely to do harm to the deceased of to some class of persons of whom he was one.
```
27
What was held in R v TOMARS
R v TOMARS
Formulates the issues in the following way:
1. Was the deceased threaten by, in fear of or deceived by the accused?
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 accused, in the sense that reasonable and responsible people in the accused'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?
28
In general, no one is criminally responsible for the killing of another by any influence of the mind. What are the exceptions to this rule?
- Wilfully frightening a child under 16 years of age
| - Wilfully frightening a sick person (mentally or physically)
29
What is meant by the term 'justified? Provide two examples.
Note that some acts are 'justified' even when they result in death. Section 2 provides that when an act is justified the perpetrator is exempt from both criminal and civil liability.
Examples include:
- 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
Why is attempted murder one of the most difficult offences in the CA61 to prove beyond reasonable doubt?
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.
31
What are the ingredients to accessory after the fact to murder?
Knowing any person to have been party to murder, receives, comforts, assists that person or tampers with or actively suppresses evidence against that person in order to enable him to escape after arrest or to avoid conviction.
32
Define the term 'suicide pact' s180(3) CA61
For the purposes of this section the term suicide pact means a common agreement between 2 or more persons having for its object the death of all of them, whether or not each is to take his own life; but nothing done by a person who enters into a suicide pact shall be treated as done by him in pursuance of the pact unless it is done while he has the settled intention of dying pursuance of the pact.
33
Discuss the case FORREST & FORREST and outline the case law
In R v FORREST & FORREST two men were charged with having sexual intercourse with a 14 year old girl who had run away from Child Welfare custody. At trial the girl produced her birth certificate and gave evidence herself that she was the person named in the certificate. The men successfully appealed their convictions on the grounds that the Crown had not adequately proved the girl's age.
R v FORREST & FORREST
The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victims age.
34
How do NZ Courts deal with a defence of Automatism arising out of taking alcohol and / or drugs?
In NZ the Courts are likely to steer a middle course, allowing a defence of automatism arising out of taking alcohol and drugs, 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.
35
List the ingredients of s48 of the CA61 (self defence or defence of another)
Everyone is justified in using, in the defence of himself or another, such force as, in the circumstances as he believe them to be, it is reasonable to use.
36
What was held in R v RANGER?
R v RANGER
If this accused 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.
37
Provide 3 guidelines in respect of consent regarding assault
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 the 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
38
In common law, allegation of culpable homicide have been supported where the offenders have caused death by particular circumstances. Name any four of these circumstances.
1. Committing arson
2. Giving a child an excessive amount of alcohol to drink
3. Placing hot cinders and straw on a drunk person to frighten them
4. Supplying heroin to the deceased
5. Throwing a large piece of concrete from a motorway over bridge into the path of an approaching car
6. Conducting an illegal abortion
39
In relation to s160(2)(d) of the CA61, give 2 practical examples of culpable homicide which has been caused by the victims actions, prompted by threats or fear of violence
1. Jumps or falls out of a window because they think they are going to be assaulted
2. Jumps into a river to escape an attack and drowns
3. Who has been assaulted and believes their life is in danger, jumps from a train and is killed
40
To establish proof of death, in relation to homicide, you must prove 3 key elements, what are they?
- 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
41
What is the definition of the period 'a year and a day' as outlined in s162(2) CA61?
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.
42
S168(1)(a) CA61 refers to the term 'grievous bodily injury', what does this mean and give an example of such an injury
In subsection (1)(a), 'grievous bodily injury' means harm that is very serious, such as injury to a vital organ. To come within subsection (1)(c), the stopping of the victims breath must be done 'wilfully'
43
In the test for proximity, Simester and Brookbanks (Principles of Law 224) suggest the following questions should be asked in determining the point at which an act of mere preparation of committing a crime may become an attempt. What are those 2 questions?
- Has the offender done anything more that getting himself in a position of 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 crime itself.
44
Give an example when murder might be reduced to manslaughter even though the accused intended to kill or cause grievous bodily harm.
Mitigating circumstances, such as a suicide pact, reduce what would otherwise be murder to manslaughter, even though the accused may have intended to kill or cause grievous bodily harm.
45
What is involuntary manslaughter?
Covers those types of unlawful killing in which the death is caused by an unlawful act or gross negligence. in such cases there has been no intention to kill or to cause GBH
46
Define Alibi
An alibi is the plea in a criminal charge of have been elsewhere at the material time: the fact of being elsewhere
47
What must the Defendant include in a notice of alibi?
The name and address of the witness, or if the name and address is not known to the defendant when the notice is given, any matter known by the defendant that may be of material assistance in finding that witness
48
Define "Attempts" under s72(1)CA61
Everyone who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.
49
Outline culpable homicide s160(1)&(2) CA61
(1) Homicide may be either culpable or not culpable
(2) Homicide is culpable when it consists in the killing of any person-
(a) By an unlawful act; or
(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.
50
Explain what is meant by s160(2)(b) CA61, omission to perform a legal duty
This covers cases where nothing is done when there is a legal duty to act, and certain cases of positive conduct accompanied by a failure to discharge a legal duty, in particular a duty of care.
51
Define "wilfully frightening"
"Wilfully frightening is regarded as: intending to frighten, or at least be reckless as to this" -Adams on Criminal Law
52
Explain R v HORRY
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.
53
What was held in R v HARNEY
R v HARNEY
Recklessness involves foresight of dangerous consequences that could well happen, together with the intention to continue the course of conduct regardless of the risk.
54
What are the legal duties of a parent/guardian under s152 CA61?
Everyone who is a parent, or is a person in a 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
55
What are the ingredients of s154 CA61, abandoning a child under 6?
Everyone is liable to imprisonment for a term not exceeding 7 years who unlawfully abandons or exposes any child under the age of 6 years.
56
Outline the culpability of children under 10 and children 10-13years
- Under 10: 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 of not they are guilty.
- 10-13yrs: For children aged between 10-13 years inclusive, it must be shown that the child knew their act was wrong or contrary to law. If this knowledge cannot be shown, the child cannot be criminally liable to the offence.
57
Define insanity by completing the sentence..
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 as 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
58
What was held in R v COTTLE? (Burden of Proof of insanity)
R v COTTLE
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.
59
What was held in R v LIPMAN?
R v LIPMAN
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.
60
What is a "strict liability" offence?
Any offence that does not require an intent is called a strict liability offence and the only way a defendant cn escape liability for such an offence is to prove a total absence of fault.
61
What 3 points must be satisfied before a defence of compulsion can be used?
A person is protected from criminal responsibility 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.
62
Explain entrapment
Entrapment occurs when an agent of an enforcement body deliberately causes a person to commit an offence, so that person can be prosecuted
63
Give 2 examples where culpable homicide is murder
(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 meant to cause death, or, being 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 any person, though he may have desired that his object should be effected without hurting any one
64
Define "Legal Duty"
Legal Duty
The expression "legal duty" refers to those duties imposed by statute or common law including unmodified common law duties
65
Outline s163 CA61
No one is (criminally responsible) for the killing of another by influence on the mind alone, except 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 such child as aforesaid or a sick person.
66
What is the required state of mind for s167(b) CA61?
To show that the accused's state of mind meets the provisions of s167(b), you must establish that the accused:
- 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
67
You cannot use the defence of consent to assault in the following cases:
- 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.
68
Outline R v BLAUE
R v BLAUE
| Those who use violence must take their victims as they find them.
69
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
70
What was held in R v CLANCY?
R v CLANCY
"The best evidence as to the date and place of the child's birth will normally be provided by a person attending at the birth or the child's mother ... Production go a birth certificate, if available, may have added to the evidence but was not essential"
71
Define 'Automatism'
Automatism can best be described as a state of total blackout, during which a person is not conscious of their actions and not in control of them.
72
What is "sane" and "insane" automatism?
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
73
What is the Courts view of entrapment?
I NZ 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 accused.
74
Outline the subjective and objective tests relating to s48 CA61
Once the accused has decided that use of force was required (a subjective view of the circumstances as the accused believed them), S48 then introduces a test of reasonableness which involves an objective view as to the degree and manner of the force used.
75
What was held in POLICE v LAVELLE?
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.
76
What is the procedure when alibi witnesses are interviewed?
The OC case should not interview an alibi witness unless the prosecutor requests them to do so. If an interview is requested, follow this procedure:
- Advise the defence counsel of the proposed interview and give them a reasonable opportunity to be present
- If the accused is not represents, endeavour to ensure the witness is interviewed in the presence of some independent person not being a member of the Police
- Make a copy of the 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)
77
The General Rule has been that intoxication may be used as a defence in the commission of what type of offences?
- Where the intoxication causes a disease of the mind so as to bring s23 (insanity) CA61 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)
78
Degree of force for self defence is tested on what subjective criteria?
- What are the circumstances that the defendant genuinely believes exist (whether or not mistaken)
- Is the force used reasonable in the circumstances believe to exist
- Do you accept that the defendant genuinely believes those facts
79
If the defendant intends to call an expert witness during proceedings, what must they disclose to the Prosecution?
- 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 14 days before the date fixed for the defendants hearing or trial, or within any further time that the court may allow (s23(1))
