Notes

Question 1

What is the penalty for attempted murder?

Answer 1

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

Question 2

Define R v Tarei - Life support

Answer 2

Withdrawal of any form of life support system is “treatment” under s166 of the Crimes Act 1961. To withdraw life support does not cause death but removes the possibility of extending the persons life through artificial means.

Question 3

Outline sections 181 of the Crimes Act 1961 (concealing the dead body of a child)

Answer 3

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

Question 4

In which Court does a youth facing a charge of murder or manslaughter appear?

Answer 4

Young person’s over the age of 14 years of age are usually dealt with under the youth justice provisions of the OT Act although charges of murder and manslaughter will be heard in the High Court following the committal process in the youth Court.

Question 5

A question of law relating to whether the condition is a disease of the mind is answered by whom?

Answer 5

The judge

Question 6

What the accused’s state of mind was at the time of the offence is a question decided by whom?

Answer 6

The jury

Question 7

What was held in R v Kamipeli? - Intoxication

Answer 7

It does not have to be shown that the defendant was incapable of forming the men rea, merely that, because of their drunken state, they did not have the proper state of mind to be guilty.

Question 8

What is the burden of proof for insanity?

Answer 8

The accused is not required to prove the defence of insanity beyond a reasonable doubt, but to the satisfaction of the jury on the balance of probabilities.

Question 9

Section 153 of the Crimes Act 1961, what is the relevant age of the person who is employed?

Answer 9

Under the age of 16 years.

Question 10

Where a charge of infanticide is laid, who decides on the Mothers state of mind?

Answer 10

The jury

Question 11

Notice of alibi - Pursuant to section 22(3)(a) of the Criminal Disclosure Act 2008, the notice under subsection (1) must include:

Answer 11

Name and address of the witness. If not known then anything of material assistance in finding the witness.

(3) without limiting subsection (1),
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.

Question 12

Before a conviction can be obtained for manslaughter, where one of the sections referred to is section 150A (1) of the Crimes Act, what must the prosecution prove?

Answer 12

A very high degree of negligence or gross negligence

Question 13

Proximity is a question of law decided by whom?

Answer 13

A judge

Question 14

Written notice of an alibi is to be given by the defendant (time)

Answer 14

Within 10 working days after the defendant is given notice under section 20 of the Criminal Disclosure Act 2008

Question 15

Define R v COX

Answer 15

Consent must be full and voluntary, free and informed, freely and voluntarily given from a person in a position to form a rational judgement

Question 16

As a general guideline, most offences within the Crimes Act 1961, will require an intent (Mens rea) of some kind. Outline a defence that would therefore generally be available?

Answer 16

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.

Question 17

Provide an overview of the culpability of persons involved in suicide pacts?

Answer 17

Any survivor of a suicide pact is guilty of being party to a death (if death of another person within the pact ensues)

Question 18

Outline section 25 of the Crimes Act 1961, ignorance of the law?

Answer 18

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

Question 19

Outline M’Naghtens rules - insanity

Answer 19

The M’Naghtens rules/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

Question 20

List 4 statutory legal duties in respect of the Crimes Act 1961

Answer 20

• Provide the necessaries to protect from injury (s151)
• Provide necessaries and protect from injury a child when you are a parent or a person in place of a parent who has actual care of that child (s152)
• Provide necessaries as an employer (s153)
• Use reasonable knowledge and skill when performing a dangerous act, such as surgery (s155)
• Take precautions when in charge of a dangerous thing, such as machinery (s156)
• Avoid omissions that will endanger life (s157)

Question 21

List the difference between counselling or attempting to procure murder (s174) and conspiracy to Murder (s175)

Answer 21

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 New Zealand 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 the murder is committed or not.

Question 22

Section 159(1) & (2) of the Crimes Act 1961 defines when a child becomes a human being and is therefore able to be murdered under section 158. Detail the provisions of section 159(1) & (2)

Answer 22

159(1) A child becomes a human being within the meaning of the act when it has been 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.

159(2) the killing of such a child is homicide if it dies in consequence of injuries received before, during or after child birth.

Question 23

Define homicide under section 158

Answer 23

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

Question 24

What was held in R v MANE

Answer 24

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 25

State the ingredients of infanticide (s178 CA 1961)

Answer 25

• Where a woman causes the death of any child or hers under the age of 10 years
• In a manner that amounts to culpable homicide
• 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 child or any other child or the effect of lactation or by reason of any disorder consequent upon childbirth to such an extent that she should be held fully responsible.

Question 26

What does R v Myatt state about an unlawful act in respect of section 160(2)(a) of CA 1961

Answer 26

• The defendant must intentionally do the act
• The act must be unlawful
• The act must be dangerous
• The act must cause death

Question 27

What was held in R v Tomars

Threats, fear of violence and deception (s160(2)(d))

Answer 27

1. Was the deceased the deceased threatened by, in fear of or deceived by the accused?
2. If they were, did such threats, fear or deception cause 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 foresee the consequences?
4. Did these foreseen actions of the victims contribute in a significant way to this death?

Question 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?

Answer 28

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

Question 29

What is meant by the term justified? Provide 2 examples

Answer 29

The term justified means that the perpetrator is exempt from both criminal and civil liabilite

• 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 (41)

Question 30

Why is attempted murder one of the most difficult offences to prove beyond a reasonable doubt?

Answer 30

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.

It is one of the most difficult to prove as the crown must establish the intent to kill.

Question 31

What are the ingredients to accessory after the fact to murder?

Answer 31

• Knowing
• Any person to have been party to murder
• Receives, comforts or assists that person OR tampers with or actively suppresses evidence against that person
• In order to enable him to escape after arrest or avoid conviction

Question 32

Define the term suicide pact s180(3) CA 1961

Answer 32

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 settled intention of dying in pursuance of the pact

Question 33

R v Forrest and Forrest

Discuss case and case law

Answer 33

“The best evidence in the circumstances should be adduced by the prosecution in proof of the victims age”

R v FORREST and FORREST is a case where 2 men were charged with having sex with a 14 year old girl.

Question 34

How do NZ courts deal with a defence of automatism arising out of taking alcohol or drugs

Answer 34

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.

Question 35

List the ingredients of Section 48 of the Crimes ACt 1961 (self defence)

Answer 35

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

Question 36

What was held in R v RANGER

Answer 36

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 to far, we think, to say that the jury could not entertain a reasonable doubt as to whether a pre-emptive striek with a knife would be reasonable force in the circumstances

Question 37

Provide 3 guidelines in respect of consent regarding assault

Answer 37

• Everyone has the right to consent to a surgical operation
• Everyone has the right to consent to the infliction of force not involving bodily harm
• No one has the right to consent to their death or injury likely to cause death
• 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
• 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.

Question 38

In common law, allegations of culpable homicide have been supported where the offenders have caused death by particular circumstances. Name 4

Answer 38

• Committing arson
• Giving a child excessive amounts of alcohol to drink
• Placing hot cinders and straw on a drunk person frightening them
• Supplying heroin to the deceased
• Throwing a large piece of concrete from the motorway over bridge in the path of a car
• Conducting an illegal abortion resulting in the mothers death

Question 39

Two examples of culpable homicide caused by the victims actions, prompted by threats of fear or violenace

Answer 39

• Jumps or falls out of a window thinking they are going to be assaulted
• Jumps into a river to escape an attack and drowns
• After being assaulted and in belief their life is in danger, jumps from a train and is killed

Question 40

To establish proof of death, in relation to homicide, you must prove 3 key elements, they are:

Answer 40

• Death has occurred
• The deceased person is identified as the person killed
• The killing is culpable

Death can be proved directly and/or circumstantial evidence

Question 41

What does the term grievous bodily injury mean and give an example

Answer 41

Means harm that is very serious, such as an injury to a vital organ. The stopping of the victim’s breath must be done wilfully

Question 42

Proximity. What two questions should be asked in relation to proximity?

Answer 42

• Has the offender done anything more than getting himself into a position from which he could embark on and actual attempt.
• Has the offender actually commenced execution, that is to say, has he taken a step in the actual crime itself

Question 43

Give an example when murder might be reduced to manslaughter even though the accused intended to kill or cause grievous bodily har,

Answer 43

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

Question 44

What is involuntary mansalughter

Answer 44

Covers those types of unlawful killings 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 grievous bodily harm.

Question 45

Define alibi

Answer 45

An alibi is the plea in a criminal charge of having been elsewhere at the material time.

The fact of being elsewhere

Question 46

Define attempts under s72(1)

Answer 46

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

Question 47

Outline culpable homicide section 160(1) & (2) CA1961

Answer 47

(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 of fear or violence; or by deception, to do an act which causes his death; or
(e) By wilfully frightening a child under 16 years of age or a sick person

Question 48

Explain what is meant by section 160(2)(b) of the CA 1961, omission to perform a legal duty

Answer 48

This covers 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

Question 49

Define wilfully frightening

Answer 49

Wilfully frightening is regarded as - Intending to frighten, or at least be reckless as to this

Question 50

Explain R v HORRY

Answer 50

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 51

What are the legal duties of a parent/guardian under section 152 of the CA 1961

Answer 51

Everyone who is a parent, or is a person in place of a parent, who has actual care or charge of a child under the age of 18 years is under a legal duty -

• To provide that child with necessaries; and
• To take reasonable steps to protect that child from injury

Question 52

What are the ingredients of section 154 of the CA 1961, abandoning a child under 6?

Answer 52

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

Question 53

Outline the culpability for children under 10 and children 10-13 years

Answer 53

Under 10 - A child 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.

10-13 yrs - 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 for the offence.

Question 54

Define insanity by completing the sentence

Answer 54

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 ti such an extent as to render him incapable-

• Of understanding the nature and quality of the act or omission; or
• Of knowing that the act or omission is morally wrong, having regard to the commonly accepted standards of right and wrong

Question 55

What was held in R v COTTLE (burden of proof of insanity)

Answer 55

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 56

What was held in R v LIPMAN

Answer 56

Where automatism is brought about by the voluntary intake of alcohol or drugs the court may be reluctant to accept that the actions were involuntary of that the offender lacked intention.

Question 57

What is a “strict liability” offence?

Answer 57

Any offence that does not require an intent is called a strict liability offence and the only way a defendant can escape liability for such an offence is to prove a total absence of fault.

Question 58

What 3 points must be satisfied before a defence of compulsion can be used?

Answer 58

Belief must be genuine - A person is protected from criminal responsibility if they have been compelled to commit the offence by someone at the scene who has threatened them that they would otherwise be killed or caused GBH.

The accused must have genuinely believed the threats and must not be a party to any association or conspiracy involved in carrying out the threats.

Immediacy and Presence - the threats of death or GBH must be immediate and from a person present at the time.

Question 59

Explain entrapment

Answer 59

Entrapment occurs when an agent of an enforcement body deliberately causes a person to commit an offence, so that the person can be prosecuted.

Question 60

Give two circumstances where culpable homicide is murder

Answer 60

• The offender means to cause the death of the person killed.
• 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.
• 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.
• If the offender for any unlawful object does an act that he knows is likely to cause death, and therby kills any person, though he may have desired that his object should be effected without hurting anyone.

Question 61

Define legal duty

Answer 61

The expression legal duty refers to those duties impose by statue or common law including unmodified common law duties.

Question 62

Outline section 163 of CA 61 (influence on mind)

Answer 62

No one is criminally responsible for the killing of another by 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 or disease arising from such influence, except by wilfully frightening any such child as aforesaid or sick person.

Question 63

What is required state of mind for section 167(b) of the CA 61

Answer 63

You must establish the accused:

• Intended to cause the bodily injury to the deceased.
• Knew the injury was likely to cause death.
• Was reckless as to whether death ensued or not

Question 64

You cannot use the defence of consent to assault in the following cases

Answer 64

• Aiding suicide
• Criminal actions
• Injury likely to cause death
• Bodily harm likely to cause breach of the peace
• Indecency offences
• The placing of someone in a situation where they are risk of death or bodily harm

Question 65

Outline R v BLAUE

Answer 65

Those who use violence must take their victims as they find them

Question 66

A hearsay statement is admissible in any proceeding if:

Answer 66

The circumstances relating to the statement provide reasonable assurance that the statement is reliable; and

either-
The maker of the statement is unavailable as a witness; or

The judge considers that undue expense or delay would be caused if the make of the statement were required to be a witness.

Question 67

What was held in R v CLANCY

Answer 67

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.

Question 68

Define automatism

Answer 68

Automatism can best be described as a state of total blackout, during which a person is not conscious of their actions and not in total control of them.

Question 69

What is “sane” and “insane” Automatism

Answer 69

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

Insane automatism - The result of mental disease

Question 70

What is the courts view of entrapment?

Answer 70

In 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.

Question 71

Outline the subjective and objective test relating to section 48 of the CA 61

Answer 71

Once the accused has decided that use of force is required (subjective). Section 48 then introduces a test of reasonableness which involves an objective view as to the degree and manner of the force used,

Question 72

What was held in Police v LAVELLE

Answer 72

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 73

What is the procedure when alibi witnesses are interviewed?

Answer 73

The OC case should not interview an alibi witness unless the prosecutor requests them to do so.
Procedure:
- Advise the defence counsel of the proposed interview and give them a reasonable opportunity to be present.
- If the accused is not represented, endeavour to ensure the witness is interviewed in the presence of some independent person not being a member of the Police.
- Make a copy of 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)

Question 74

If the defendant intends to call an expert witness during proceedings, what must they disclose to the prosecution?

Answer 74

• 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 he 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 court may allow (s23(1))

Question 75

Section 150A - negligence

Answer 75

Before a conviction for manslaughter can be obtained for manslaughter where one of the sections referred to in section 150A(1) the prosecution must prove a very high degree of negligence or gross negligence. The expression very high degree of negligence and gross negligence are not defined in statue.

Question 76

Children aged 10-13 years of age charged with murder or mansalughter

Answer 76

10-13 year olds charged with murder and manslaughter (cat 4) are usually dealt with under the youth justice provisions of the OT act. However , charges of murder and manslaughter will be heard in the high court following the first appearance in the court in which the charging document was filed.

Question 77

General rules regarding intoxication

Answer 77

In the past intoxication was considered to be no defence to a criminal charge and, indeed, an aggravating feature rather than a mitigating factor. The general rule has been that intoxication may be a defence to the commission of an offence:
- Where the intoxication causes a disease of the mind so as to bring s23 (insanity) of the crimes act 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 intoxication causes a state of complete automatism (complete acquittal)

Question 78

Degree of force under self defence

Answer 78

The degree of force permitted is tested under the following subjective criteria:

• 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

Question 79

Murder section 167

Answer 79

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 which is known by the offender to be likely to cause death, and is reckless as to 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 therby kills any person, though he may have desired that his object should be effected without hurting anyone.

Question 80

s168 Further definition of murder

Answer 80

(1) Culpable homicide is also murder in each of the following case, 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 form the effect thereof:
(b) If he administers and 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.