MUST KNOWS 2 Flashcards
How is automatism best described?
A state of total blackout, during which a person is not conscious of their action and not in control of them
What is the likely result of a trial where the defendant is found to have been in a state of automatism from intoxication?
The defendant will be found to have been in a state of automatism from intoxication and will have to be acquitted
What is compulsion?
The act of compelling a person to do something against their will
In relation to compulsion, what does “immediate” mean?
At the scene from a person present at the time
What in effect is a defence of mistake?
Is in effect a denial of intent
How does the defence of entrapment apply in New Zealand? Outline at least one case to explain your answer.
Courts in NZ rely on judicial discretion to exclude unfairly obtained evidence
Police v Lavalle provides good guidance on how courts apply judicial discretion in context of entrapment. In example undercover officers were merely providing L with opportunity to recruit and live off earning of women involved in prostitution, an activity evidence showed he was already willing to engage in
What is the test of self defence?
The test is subjective
Who decides whether there is evidence of self defence?
The judge
What does “alibi” mean?
Means being elsewhere at the material time
What people are considered unable to give consent?
- A child
- Someone unable to rationally understand the implications of their defence
- Someone subject to force, threats of force or fraud
What actions do not allow for a defence of consent?
- Aiding suicide
- Criminal actions
- Injury likely to cause death
- Bodily harm likely to cause breach of the peace
- indecency offence
Murry Wright LTD
Because killing must be done by a human being, an organisation cannot be convicted as a principal offender
Section 159 definition (killing of a child)
A child becomes a human being within meaning of this act when it has proceeded from the body of the mother, whether it takes a breath, has circulation or whether the navel string has been severed.
Killing of such a child is homicide if it dies in consequence of injuries received before, during or after birth
Section 160 definition (culpable homicide)
1) Homicide may be either culpable or not culpable
2) Homicide is culpable when it consists of the killing of any person
a) by an unlawful act
b) by an omission without lawful excuse to perform or observe any legal duty
c) by both combined
d) by causing person by threats or fear of violence, or by deception to do an act which causes his death
e) by wilfully frightening a child under 16 or sick person
Definition of unlawful act
A breach of any Act, Regulation, Rule or Bylaw
R v Myatt
Before a breach of any act, regulation, rule or bylaw would be an unlawful act under S160 for the purpose of culpable homicide, it must be an act likely to do harm to the deceased or to some class of person of whom he was one
Section 150A, in common law, allegations of culpable homicide have been supported where offender has caused death by…(6 examples)
- Committing arson
- Giving child excessive amount of alcohol
- Placing hot cinders and straw on a drunk person to frighten them
- Supplying heroin to a person who dies of an overdose
- Throwing concrete off a bridge onto the motorway
- Conducting an illegal abortion and the mother dies
What are some duties that are embodied in statute?
Section 151 - Provide necessaries and protect from injury vulnerable adult
Section 152 - Provide necessaries and protect from injury parent or guardian
Section 153 - Provide necessaries as an employer
Section 155 - Use reasonable knowledge and skill when performing dangerous acts, such as surgery
Section 156 - Take precautions when in charge of dangerous things such as machinery
Section 157 - Avoid omissions that will endanger life
R v Tomars (threats/fear of violence/deception)
- Was the deceased threatened by, in fear of or deceived by the defendant
- If they were, did such threats, fear or deception cause the deceased to do the act that caused their death
- Was the act a natural consequence of the actions of the defendant, in the sense that reasonable and responsible people in defendants position could reasonably have foreseen the consequences
- Did these foreseeable actions of the victim contribute in a significant way to his death
Wilfully frightening definition:
Intending to frighten, or at least be reckless as to this
To establish death, you must prove what? and how can this be proved?
- The death occurred
- Deceased is identified as the person who has been killed
- The killing is culpable
Death can be proved by direct or circumstantial evidence
R v Horry
Death should be provable by circumstances as to render it morally certain and leave no ground for reasonable doubt. The circumstantial evidence should be so cogent and compelling as to convince a jury that upon no rational hypothesis other than murder can facts be accounts for
Examples of justified (non-culpable homicide)
Section 48 - Self defence
Section 41 - Homicide committed to prevent suicide or commission of an offence which would be likely to cause immediate and serious injury to person or property
Cameron v R
Recklessness is established if:
a) the defendant recognised that there was a real possibility that
i) his or her actions would bring upon the proscribed result and/or
ii) that the proscribed circumstances existed; and
b) having regard to that risk those actions were unreasonable
R v Piri
Recklessness involves the conscious and deliberate risk taking. Degree of risk of death foreseen by the accused under Section 167(b) or (d) must be more than negligible or remote. Accused must recognise a “real or substantial risk” that death would be caused
R v Desmond
not only must object be unlawful, but also the accused must know that his act is likely to cause death. It must show that his knowledge accompanied the act causing death
