Other

Question 1

What must you consider when deciding on murder or manslaughter?

Answer 1

The critical factors to consider for a charge of murder are whether the offender intended to:
* kill the person, or
* cause bodily injury that the offender knew was likely to cause death.

If neither of these intentions can be proven, the most likely charge is
manslaughter.

Question 2

When does a child become a human being?

Answer 2

Section 159 defines when a child becomes a human being, and is therefore capable of being murdered under section 158:

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

Question 3

What are standards of care applicable to persons under legal duties or performing unlawful acts?

Answer 3

In common law, allegations of culpable homicide have been supported where the offender has caused death by:
* committing arson
* giving a child an excessive amount of alcohol to drink
* placing hot cinders and straw on a drunk person to frighten them
* supplying heroin to a person who subsequently dies from an overdose
* throwing a large piece of concrete from a motorway overbridge into the path of an approaching car
* conducting an illegal abortion where the mother dies.

Question 4

What are duties imposed by statute relating to death caused by omission?

Answer 4

Culpable homicide includes any death caused by an omission, without lawful excuse, to perform or observe any legal duty as defined by s160(2)(b).

Duties imposed by statute are mainly common law duties that have been embodied in statute. The Crimes Act 1961 defines duties to:
* 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).

Question 5

is a person guilty if they cause fear or threats resulting in the Victims death?

Answer 5

A person is guilty of culpable murder if they cause the victim by threats, fear of violence or deception to do an act that results in the victim’s death. You must prove that the fear of violence was well founded, but you do not need to show that the deceased’s action was the only means of escape.

Question 6

What are examples of culpable homicide caused by actions prompted by threats, fear of violence or deception?

Answer 6

Examples of culpable homicide caused by actions prompted by threats, fear of violence or deception are when a person:
* 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 7

Can an act be both unlawful and and omission of duty?

Answer 7

Sometimes both unlawful acts and the omission to perform a legal duty are applicable to the same act. For example, to drive a car so recklessly that you kill a pedestrian is both an unlawful act and an omission to observe your duty to take precautions when you are in charge of a dangerous thing (s156).

Question 8

Can you consent to death?

Answer 8

No one has the right to consent to being killed (s63). This means that, if someone is killed, the fact they gave their consent will not affect the criminal responsibility of anyone else involved with the killing.

Question 9

Can you be guilty of homicide from lawful games?

Answer 9

In the case of lawful contests and games (such as boxing, wrestling, football and hockey) the death of a participant from injuries received during the game or contest is normally treated as non-culpable homicide. However, if a contestant causes the death of another by an act that is likely to cause serious injury, they will be guilty of manslaughter.

Question 10

How to you prove death?

Answer 10

To establish the death, you must prove the:
* death occurred
* deceased is identified as the person who has been killed
* the killing is culpable

Death can be proved by direct and/or circumstantial evidence.

Question 11

What are examples of exception of justification? (Non-culpable Homicide)

Answer 11

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 of such acts 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).

Note that use of force here is limited to that which is reasonably necessary in the circumstances.

Question 12

What are the three main types of homicide?

Answer 12

Murder, Manslaughter and infanticide

Question 13

Can an organisation (as opposed to a human being) be convicted of murder or manslaughter? Explain your answer.

Answer 13

No. Because the killing must be done by a human being, an organisation cannot be convicted as the principal offender. Moreover, although an organisation can be convicted as a party to manslaughter, with murder an organisation cannot be convicted as either the principal offender or a party to the offence because it is not possible for an organisation to serve the offence’s mandatory life sentence.

Question 14

Section 160 of the Crimes Act 1961 defines what constitutes culpable homicide. What are the five ways set out in subsection (2) of this section?

Answer 14

Under s160(2) of the Crimes Act 1961, culpable homicide consists of killing a person by:
− an unlawful act
− an omission without lawful excuse to perform or observe any legal duty
− an unlawful act and an omission to perform a legal duty
− using threats, fear of violence or deception to make the victim do an act that leads to their death
− wilfully frightening a child under 16 years of age or a sick person.

Question 15

Would you be charged with any offence if you fatally injured another player during a rugby match? If so, what might the charges be?

Answer 15

Normally you would not be charged with the killing of another player if they died from injuries you caused while playing football. However, you would be guilty of manslaughter if your actions were considered likely to cause serious injury, as you should have been aware of this at the time and refrained from the action.

Question 16

What must you prove when charging with murder?

Answer 16

If you are charging an offender with murder under s167 you must show that the defendant:
* intended to cause death, or
* knew that death was likely to ensue, or
* was reckless that death would ensue.

If such intent is not present the offence is manslaughter unless it falls within the provisions of infanticide (section 178).

Question 17

What is the test for proximity in relation to attempts?

Answer 17

Simester and Brookbanks9 suggests the following questions should be asked in determining the point at which an act of mere preparation may become an attempt:
* 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?

If the answer to either question is “yes” then we can say there has been an attempt as a matter of law. If not, the conduct can be classed as preparation and is not an offence.

Question 18

What is the punishment of attempted murder?

Answer 18

173 Attempt to murder
Every one who attempts to commit murder is liable to imprisonment for a term not exceeding 14 years.

Question 19

What is counselling or attempting to procure murder?

Answer 19

The offences of counselling or attempting to procure murder are detailed in s174.

174 Counselling or attempting to procure murder

Every one is liable to imprisonment for a term not exceeding 10 years who incites, counsels, or attempts to procure any person to murder any other person in New Zealand, when that murder is not in fact committed.

Section 174 applies where murder is not in fact committed. If the person incited or counselled commits murder, the parties’ provisions of s 66(1)(d) will apply to the inciter or counsellor.

Where murder is attempted but not in fact committed, an inciter, counsellor or procurer will be liable as a party under s 66(1)(d) to an attempt to murder under s 173.

Question 20

What is conspiracy to commit murder?

Answer 20

Section 175 deals with conspiracy to murder.

175 Conspiracy to murder
(1) Every one is liable to imprisonment for a term not exceeding 10 years who conspires or agrees with any person to murder any other person, whether the murder is to take place in New Zealand or elsewhere.
(2) For the purposes of this section, the expression To murder includes to cause the death of another person out of New Zealand in circumstances that would amount to murder if the act were committed in New Zealand.

Section 175 may apply regardless of whether murder is committed or not.

Question 21

What is accessory after the fact to murder?

Answer 21

The punishment for an accessory after the fact to murder is provided for in s176.

176 Accessory after the fact to murder
Every one is liable to imprisonment for a term not exceeding 7 years who is an accessory after the fact to murder.

The definition of an accessory after the fact is given in section 71(1) of the Crimes Act 1961

Question 22

What is the difference between voluntary and involuntary manslaughter?

Answer 22

Voluntary manslaughter
Mitigating circumstances, such as a suicide pact, reduce what would
otherwise be murder to manslaughter, even though the defendant may have intended to kill or cause grievous bodily harm.

Involuntary manslaughter
Covers those types of unlawful killing in which 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.

Manslaughter, then, includes culpable homicide that:
* does not come within s167 or s168
* comes within ss167 and 168, but is reduced to manslaughter because the killing was a part of a suicide pact as defined in s180(3) of the Crimes Act 1961.

Question 23

What must you consider when there killing in a sudden fight?

Answer 23

When you come across a killing that is a result of a sudden fight, you need to consider whether there was:
* self-defence
* the requisite mens rea for a murder charge.

It is crucial for you to consider these issues if you are to decide the way in which the killing should be viewed:
* If the homicide can be justified as having arisen out of self-defence (s48) the proper verdict is 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 section 167, the proper verdict is manslaughter.

Question 24

What is the four point test for proving an unlawful act for manslaughter?

Answer 24

An English matter, Newbury and Jones 11outlines a four-point test for
proving an unlawful act for manslaughter.
1. The defendant must intentionally do an act
2. The act must be unlawful
3. The act must be dangerous
4. The act must cause death

Question 25

What are three examples of manslaughter by negligence?

Answer 25

The situations that may give rise to a charge of manslaughter by negligence are diverse, and include negligence while in charge of or using trains, factory machinery, mines, motor vehicles, ships or weapons, or while administering medical or surgical treatment.

Example One:
When someone is charged with manslaughter on the basis that they used a dangerous thing riskily or negligently, the consent of the person who subsequently died is no defence. So, it would be no defence against a manslaughter charge to say the deceased agreed to ride on the bonnet of a car you drove dangerously, knowing the deceased was in that position.

Example Two:
When the death occurs during a lawful game or contest, such as during a football or hockey match, the death is treated as non-culpable homicide unless the defendant’s actions were likely to cause serious injury, in which case the defendant is guilty of manslaughter (see s160).

Example Three:
Even if the deceased contributed to their own death by their own negligence, this does not afford the defendant a defence against manslaughter by negligence. Contributory negligence is no defence.

Question 26

Can you charge negligent drivers with manslaughter?

Answer 26

Juries have been reluctant to convict negligent drivers of manslaughter, so alternative offences have been formulated. These are contained in s36A, 38, 39 and 39AA of the Land Transport Act 1998 and relate to aggravated careless, dangerous and reckless driving causing death.

These charges carry lesser penalties. Consult with Legal Section to decide what would be the most appropriate charge. In many cases there is little point charging the person with manslaughter, as the driver may receive a lesser penalty than, for example, the maximum penalty of 10 years contained in s36AA of the Land Transport Act 1998.

Question 27

What is the objective test for gross negligence?

Answer 27

The test to be applied in determining whether an defendant has been negligent, and whether the negligence has been a major departure, is an objective test:

The test of gross negligence is objective and that the defendant’s state of mind is not a prerequisite to conviction for manslaughter by gross negligence. All the circumstances of the case must be considered and a defendant’s state of mind may be relevant to whether there was gross negligence. This may be more readily found if, for example, the defendant knowingly ran a risk or was indifferent to an obvious risk of death.

Question 28

What must you prove in for a second party to murder?

Answer 28

Where two or more people are to be convicted of culpable homicide
under section 168, you do not need to prove that the secondary party
knew that death was a probable consequence of their unlawful activity, just that the secondary party knew it was probable the principal might do an act that would, if death resulted, bring their conduct within the terms of section 168.

Question 29

Can you charge for murder if there is self defence or suicide pact?

Answer 29

If a homicide arose out of self-defence, the defendant should be
acquitted; if it arose out of a suicide pact the charge should be
manslaughter.

Question 30

If an offender intends to kill A but inadvertently strikes the fatal blow to B, is the offender still guilty of murder?

Answer 30

In a case where an offender intends to kill A but inadvertently strikes and kills B, the guilt of the offender is not affected. Section 167(c) states that if the offender means to cause the death of one person and by mistake or accident kills another, even though he did not mean to hurt the other person, then it is murder.

Question 31

In a charge of attempt to murder, what is the Crown required to prove?

Answer 31

When a charge of attempt to murder is made, the Crown must establish the mens rea and actus rea as set out in s72 of the Crimes Act 1961. An intention to kill must be proved.

Question 32

What sections covers abandoning a child?

Answer 32

Section 154 provides that it is a criminal act to abandon a child aged under six:

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.

Note: Section 150A (Standard of care required of persons under legal duties or performing unlawful acts) does not apply to section 154.

Question 33

Are are the three sections that cover duties of necessaries?

Answer 33

Sections 151, 152 and 153 concern the duty to provide those things and conditions necessary to sustain life and protect from injury. Death resulting from failure to meet the legal duty to provide the necessities of life and or protection form injury can amount to homicide.

151 Duty to provide the necessaries and protect from injury
(1) Every one who has actual care or charge of a person who is a vulnerable adult and who is unable to provide himself or herself with necessaries is under a legal duty—
(a) to provide that person with necessaries; and
(b) to take reasonable steps to protect that person from injury

152 Duty of parent or guardian to provide necessaries and protect from injury
(1) Every one who is a parent, or is a person in place of a parent, who has actual care or charge of a child under the age of 18 years is under a legal duty—
(a) to provide that child with necessaries; and
(b) to take reasonable steps to protect that child from injury

153 Duty of employers to provide necessaries
(1) Every one who as employer has contracted to provide necessary food, clothing, or lodging for any servant or apprentice under the age of 16 years is under a legal duty to provide the same, and is criminally responsible for omitting without lawful excuse to perform such duty if the death of that servant or apprentice is caused, or if his life is endangered or his health permanently injured, by such omission.

Question 34

What sections cover duty of persons doing dangerous acts and duties of persons in charge of dangerous things?

Answer 34

155 Duty of persons doing dangerous acts
Every one who undertakes (except in case of necessity) to administer surgical or medical treatment, or to do any other lawful act the doing of which is or may be dangerous to life, is under a legal duty to have and to use reasonable knowledge, skill, and care in doing any such act, and is criminally responsible for the consequences of omitting without lawful excuse to discharge that duty.

156 Duty of persons in charge of dangerous things
Every one who has in his charge or under his control anything whatever, whether animate or inanimate, or who erects, makes, operates, or maintains anything whatever, which, in the absence of precaution or care, may endanger human life is under a legal duty to take reasonable precautions against and to use reasonable care to avoid such danger, and is criminally responsible for the consequences of omitting without lawful excuse to discharge that duty.

Note that the term “anything whatever” in section 156 is extremely wide. It includes such things as motor vehicles, trains, animals, ships, weapons, machinery and explosives.

Question 35

What section covers killing by influence on the mind?

Answer 35

163 Killing by influence on the mind
No one is criminally responsible for the killing of another by any influence on the mind alone, except by wilfully frightening a child under the age of 16 years or a sick person, nor for the killing of another by any disorder or disease arising from such influence, except by wilfully frightening any such child as aforesaid or a sick person.

Question 36

Causing death/injury

Answer 36

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.

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 37

What was found in R v Blaue?

Answer 37

Section 165 imposes a liability on a person who is responsible for a death if an injury inflicted by him is an operative cause of death (directly or through some secondary condition such as tetanus), even though it could have been prevented with proper treatment

R v Blaue13 provides a clear example of this piece of legislation in practice The victim [a Jehovah’s witness] had been stabbed but refused to accept a blood transfusion on the ground that to do so would be contrary to her religious belief; despite a warning that she would die, she persisted in her refusal and in fact died on the following day. The cause of death was bleeding into the pleural cavity caused by the stabbing. An appeal against a conviction of manslaughter, on the ground that her refusal to have a blood transfusion was unreasonable and broke the chain of causation between the stabbing and her death, was dismissed.

The Court commented; “…It does not lie in the mouth of the assailant to say that his victim’s religious beliefs, which inhibited her from accepting certain kinds of treatment, were unreasonable. The question for decision is what caused her death. The answer is a stab wound. The fact that the victim refused to stop this end coming about did not break the causal connection between the act and death.”

Question 38

What happens when the treatment of injury is fatal?

Answer 38

Provisions for death caused by treating injury are in s166.
This provision covers situations where a person dangerously injures the victim and, as a result, treatment is administered to the victim, and that treatment is the immediate cause of the victim’s death. The person who caused the injury is liable for the injury and its consequences. The degree of that liability will rely on the mens rea element.

When treatment is sought for an injury and the injured person dies, the person who caused the original injury is liable for the death, even if the person has died as the result of improper treatment, so long as the treatment was applied in good faith.

In R v Tarei the Court held that the withdrawal of any form of life support system is not “treatment” under s166 Crimes Act 1961. To withdraw life support does not cause death but removes the possibility of extending the person’s life through artificial means.

The English Court of Appeal stated two rules:
* 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;

The following cases are further examples of s166:

Examples
* A person was wounded in a duel and died as a result of the surgical
operation made necessary by the wound. The person who inflicted the wound was guilty of murder.
* The deceased had been severely kicked by the defendant. A surgeon gave the deceased some brandy to restore her, but some of it went into her lungs. It was suggested this was the immediate cause of death. However, the court held this did not affect the defendant’s criminal responsibility.
* It was necessary to operate on a person as a result of an assault on him by the defendant. The person died under the administration of
anaesthetic. It was held that this did not affect the defendant’s criminal responsibility.

Question 39

What sections cover suicide and suicide pact?

Answer 39

Sections 179 and 180 deal with suicide and suicide pacts.

179 Aiding and abetting suicide
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.

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 one or more of them kills himself, 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 shall not be convicted of an offence against section 179 of this Act.
(3) 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 in pursuance of the pact.

Section 180(1) makes it an offence to enter into a suicide pact, and only one person dies as a result of an action by another person. For example if Person A and Person B enter a suicide pact, and Person A shoots Person B, killing Person B, before shooting themselves, but Person A lives, then Person A would be guilty of manslaughter, and not murder.

Question 40

What section covers concealing dead body of a child?

Answer 40

Concealing the body of a dead child is an offence under s181:

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.

The requirement that the act of disposal must be done with the intent of concealing the fact of birth may be satisfied even though the birth was known to some people but not others. Thus it will be enough that the intent was to conceal the birth from a particular individual.

Question 41

Sections 151 and 152 of the Crimes Act 1961 list the legal duties regarding providing those things and conditions necessary to sustain life and protect from injury. Outline the provisions.

Answer 41

Legal duties regarding provision of the necessaries and to take reasonable steps to protect that person from injury apply to those having actual care or charge of people who are vulnerable adults or, in the case of a parent or a person acting in the place of a parent having actual care or charge of a child under 18 years.

Question 42

What types of things fall into the category of dangerous things discussed in s156 of the Crimes Act 1961?

Answer 42

Section 156 of the Crimes Act 1961 sets out the statutory duty of people in charge of dangerous things to take reasonable precautions to ensure people’s safety. Such things include motor vehicles, trains, animals, ships, weapons, machinery or explosives, and may include such things as the machinery inside a mussel factory, faulty scaffolding that collapses because of faulty erection and inspection, unfenced holes or other industrial-type incidents, depending on the circumstances.

Question 43

In one incident a man stabs a woman repeatedly; the same thing happens in another incident involving a different man and woman. As a result, both women need to undergo emergency surgery during which both die of heart failure. The first woman suffers heart failure in an unpredicted reaction to the anaesthetic, whereas the second woman, although she suffers the same reaction and with the same result, wears a medic-alert badge carrying information about her known heart condition and reaction to anaesthetic. Is there any mdifference in these cases? Is anybody held legally responsible for either of their deaths? If so, who, and what would the charge be?

Answer 43

If a woman is stabbed repeatedly and, during emergency surgery in relation to those wounds, dies of a heart attack where all reasonable precautions have been taken, the person who stabbed her initially and not the medical staff are responsible for her death. The degree of liability depends on the element of mens rea and whether the attack was provoked. However, if the woman was wearing a medic-alert bracelet that described her heart condition and her reaction to anaesthetic, and the anaesthetist failed to notice it, the person who did the stabbing would not be culpable and the anaesthetist’s actions would need to be scrutinised under the provisions of s155 of the Crimes Act 1961 (duty of persons doing dangerous acts) to evaluate their responsibility. Simply, the death needs to be a direct result of the initial attack and not related to another condition.

Question 44

What is the general admissibility of hearsay?

Answer 44

18 General admissibility of hearsay 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 45

What circumstances does a judge consider in relation to reliability for statements? (5 things)

Answer 45

• the nature of the statement
• the contents of the statement
• the circumstances relating to the making of the statement
• circumstances relating to the veracity of the person making the statement
• circumstances relating to the accuracy of the observation of the person

Question 46

Can child 10-14 and 10 and under be convicted?

Answer 46

Defences for children are set out in s21 and s22 of the Crimes Act 1961.

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

A child aged under 10 years has an absolute defence to any charge
brought against them. Nevertheless, even though the child cannot be
convicted, you still have to establish whether or not they are guilty.

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 when of the age of 10 but under the age of 14 years, unless he knew either that the act or omission was wrong or that it was contrary to law.

Question 47

How are offences dealt with for children under 10?

Answer 47

When offences are being committed by children aged under 10 years and some action is desirable or necessary, consider having the child and family dealt with as a Care and Protection matter. Where this action is taken, the circumstances are reported to Oranga Tamariki for the attention of the Care and Protection Co-ordinator.

Where a child aged 10 to 13-years old is alleged to have committed murder or manslaughter (category 4 offences) they are usually dealt with under the youth justice provisions of the Oranga Tamariki Act 1989. Charges are filed in the District Court, the first appearance takes place before the Youth Court and the case then automatically transfers to the High Court for trial and sentencing.

Question 48

If a person is deemed to have been justified and not criminally liable for an offence, may they then be proceeded against in a civil action?

Answer 48

In relation to any person, “justified” means that the person is not guilty of an offence and is not liable civilly.

Question 49

When interviewing 10 – 13-year-old children for the offence of murder, what must be shown in addition to the mens rea and actus reus requirements for the child to be held criminally liable for the offence?

Answer 49

For children aged between 10 and 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 50

A 13-year-old charged with murder, having been the subject of a committal hearing in the Youth Court, will be remanded to appear next in which court to have the matter heard?

Answer 50

10 to 13-year-olds charged with murder or manslaughter 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.

Question 51

From whom should you seek advice in relation to questioning of children and young persons?

Answer 51

Seek advice from your District Youth Prosecutor to ensure compliance with the CYPF Act, particularly in relation to questioning children and young persons.

Question 52

What does legislation say around insanity?

Answer 52

Legal insanity is defined in s23 of the Crimes Act 1961:

23 Insanity
(1) Every one shall be presumed to be sane at the time of doing or omitting any act until the contrary is proved.
(2) No person shall be convicted of an offence by reason of an act done or omitted by him when labouring under natural imbecility or disease of the mind to such an extent as to render him incapable—
(a) Of understanding the nature and quality of the act or omission; or
(b) Of knowing that the act or omission was morally wrong, having regard to the commonly accepted standards of right and wrong.
(3) Insanity before or after the time when he did or omitted the act, and insane delusions, though only partial, may be evidence that the offender was, at the time when he did or omitted the act, in such a condition of mind as to render him irresponsible for the act or omission.

Question 53

Who raises the issue of insanity?

Answer 53

The Court in R v Green held that insanity is a matter for the defence to raise and the prosecution is prohibited from adducing evidence of insanity even if the accused has sought acquittal because of some state of mind not amounting to insanity.

Further, a judge may put the issue of insanity before the jury under s20(4) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CP(MIP)) Act).

If the defence chooses not to plead insanity, it would be in only exceptional cases that the trial judge would put the issue to the jury. When convicted of an imprisonable offence, s34 of the Criminal Procedure (Mentally Impaired Persons) Act 2003, states that the judge may still commit a person to a hospital or secure facility or, instead of passing sentence, order that the offender be treated as a patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992 or be cared for as a care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.

A person can be acquitted of a charge, even if they or their counsel have not put up the defence of insanity, if there is strong evidence to indicate that the defendant did commit the alleged offence but was insane at the time.

Question 54

What has the burden of proof for insanity?

Answer 54

Because in most cases the defence pleads insanity and because the law assumes that the defendant is sane, it is up to the defence to prove that the defendant is insane. As in all cases where the burden of proof is on the defendant, the standard of proof required is not as high as that demanded of the prosecution. If the defence cannot prove that the defendant is insane, but the jury thinks that it is more likely that the defendant is insane, then the defendant is entitled to an acquittal on the grounds of insanity.

Question 55

What are M’Naghtens rules?

Answer 55

The M’Naghten’s rules are 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 56

Is disease of the mind a question of law of a medical question?

Answer 56

“Disease of the mind” does not include a temporary mental disorder caused by some factor external to the defendant, such as a blow on the head, the absorption of drugs, alcohol, or an anaesthetic, or hypnotism.

In practice, medical witnesses are permitted to say whether they regard a disorder as a “disease of the mind”, as well as testifying as to the causes and symptoms of the condition diagnosed, but such a classification by medical witnesses is not final, and whether the particular condition is a disease of the mind is a question of law for the Judge.

Disease of the mind is not a medical question but a legal one.

Question 57

What is the consequences for insanity?

Answer 57

Under s24 and s25 of the Criminal Procedure (Mentally Impaired Persons) Act 2003, someone found unfit to stand trial or acquitted on account of his or her insanity may be detained as a special patient or special care recipient.

Question 58

What happens if automatism is bought on by alcohol or drugs?

Answer 58

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.

Decisions of the courts indicate that cogent (convincing) evidence is
necessary to support it, and only in very rare cases will it be enough for a person to say that they did not know or cannot remember what happened, or that they had a blackout. Such statements have been called “one of the first refuges of a guilty conscience and a popular excuse”.

This issue is complex and should not be confused with the general defence of intoxication.

The position in New Zealand as to whether someone has become an
automaton by ingesting so many drugs or so much alcohol that they are not responsible for their actions, is a defence that is available if the evidence of the defence can clearly raise the issue.

Question 59

What are they two types of automatism?

Answer 59

Automatism may be quite different and distinct from insanity, although it may be due to a disease of the mind. Hence it is necessary to distinguish between:

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 60

What are examples of offences that require intent vs no intent?

Answer 60

Certain offences require intent and others require little or no intent. An example of each follows:

No intent required: Driving with an excess breath alcohol content. Therefore for a defence to succeed on this charge a person must prove a total absence of fault. In other words, the person drove without conscious appreciation of the fact of driving, or of the fact of intoxication.

Intent required: Any offence that has intent as an element of the offence. An example is assault which requires intent (to apply force to another person).

Question 61

What is the general principle for New Zealand Courts for automatism?

Answer 61

There is no need to work out which offence has a specific, as against a basic, intent as the English cases require. New Zealand has adopted the principle that self-induced intoxication can lead to a defence of automatism, if the evidence is sufficiently strong to support the defence.

In New Zealand, 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 62

When is intoxication a deference to the commission of an offence? (3 reasons)

Answer 62

• where the intoxication causes a disease of the mind so as to bring s23 (Insanity) of the Crimes Act 1961 into effect
• if intent is required as an essential element of the offence and the
  drunkenness is such that the defence can plead a lack of intent to commit the offence
• where the intoxication causes a state of automatism (complete acquittal).

Intoxication can be used as a defence in New Zealand to any crime that requires intent. 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.

Intoxication can be used as a defence to any offence that requires intent.

In offences requiring simple or basic intent, a defence of intoxication is unlikely to succeed but may be used by way of mitigation of penalty.

Question 63

Is ignorance of law an excuse?

Answer 63

Section 25 of the Crimes Act 1961 deals with ignorance of the law.

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

Where a child does not know their act was contrary to law, they will not be liable for any offence (s22 Crimes Act 1961).

Question 64

What is the standard of proof required to prove the defence of insanity to the satisfaction of the jury?

Answer 64

On the balance of probabilities.

Question 65

What is the likely result of a trial where the defendant is found to have been in a state of automatism from intoxication?

Answer 65

The result of a trial where the defendant is found to have been in a state of automatism from intoxication is complete acquittal.

Question 66

What is compulsion or duress?

Answer 66

Compulsion or duress is the act of compelling a person to do something against their will. When the compulsion relates to a criminal offence, the law offers protection from prosecution in some cases.

Section 24 of the Crimes Act 1961 provides the defence of compulsion:

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

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 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.

Question 67

Is immediacy and presence required for compulsion?

Answer 67

The threats of death or grievous bodily harm must be “immediate” and from a person present at the time.

However, different standards may suffice where women and children act under threats.

In R v Hudson where two girls committed perjury to avoid threats of
injury, the compulsion defence was permitted in the circumstances, as the police could not guarantee the girls’ continuous protection.

The following case R v Joyce, is a useful illustration of how to decide whois present.

Three offenders, Pihema, Munro and Joyce, went to an Auckland service station. Pihema, who had a firearm, entered the service station alone and demanded money from the attendant. There was a struggle and the attendant was shot. All three were charged with aggravated robbery. One defence put forward by Joyce was that of compulsion. He stated in evidence that Pihema said to him: “You are in it up to your neck and you cannot pull out, it’s too late to pull out!” and he pointed the rifle at him and threatened to shoot him [Joyce] if he did not co-operate.

In this case Pihema was inside the service station with the firearm while Joyce was outside, Joyce was therefore not threatened with “immediate” death or grievous bodily harm from a person “who was present” when Joyce did the acts which made him a party to the offence.

Question 68

Is mistake a defence?

Answer 68

“Except in the cases where proof of mens rea is unnecessary, bona fide mistake or ignorance as to matters of fact is available as a defence”

It is often said that there needs to be an “honest mistake”. However, it is doubtful whether “honest” adds anything.

Question 69

Is entrapment a defence?

Answer 69

In New Zealand 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. Exclusion may be considered where law enforcement agents have generated the offending. In R v Liu37, the court described the position as follows:

Entrapment occurs when an agent of an enforcement body deliberately causes a person to commit an offence, so that person can be prosecuted. It is not a substantive defence in the sense of providing a ground upon which the defendant is entitled to an acquittal. Of itself, entrapment does not necessarily give rise to an abuse of process.

Question 70

What section covers self defence?

Answer 70

The justification for using force in defence of oneself and other people is set out in s48 of the Crimes Act 1961:

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.

It is possible for self-defence to be raised as a defence, even if the defendant has used a pre-emptive strike against the victim.

Question 71

What is subjective and objective test for self defence?

Answer 71

Once the defendant has decided that use of force was required (a subjective view of the circumstances as the defendant believed them), 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 is the 3 criteria for degree of force in self defence?

Answer 72

The degree of force permitted is tested initially 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 73

What is the procedure for interviewing an alibi witness?

Answer 73

The O/C case should not interview an alibi witness unless the prosecutor requests them to do so. If an interview is requested, follow this procedure.

1. Advise the defence counsel of the proposed interview and give
   them a reasonable opportunity to be present
2. If the defendant is not represented, endeavour to ensure the witness is interviewed in the presence of some independent person not being a member of the Police.
3. Make a copy of a witness’s signed statement taken at any such
   interview available to defence counsel through the prosecutor. Any
   information that reflects on the credibility of the alibi witness can
   be withheld under s16(1)(o).

Question 74

Is consent a defence?

Answer 74

Someone accused of an offence may defend their actions by saying that they had the complainant’s consent to do what they did.

In some cases the fact that the complainant consented to the act is a complete defence. In offences against the person or property the general rule is that acts are criminal only when they are done against the will of the person maffected or the owner of the property concerned.

If a person agrees to physical contact or consents to an appropriation of property or is willing that his property be destroyed or damaged, there is no offence of assault, theft or criminal damage.

‘Consent’ is a person’s conscious and voluntary agreement to something desired or proposed by another.

Question 75

What are the 5 guidelines for assault consent?

Answer 75

Guidelines
1. Everyone has a right to consent to a surgical operation.
2. Everyone has a right to consent to the infliction of force not involving bodily harm.
3. No one has a right to consent to their death or injury likely to cause
death.
4. No one has a right to consent to bodily harm in such a manner as to amount to a breach of the peace, or in a prize fight or other exhibition calculated to collect together disorderly persons.
5. It is uncertain to what extent any person has a right to consent to their being put in danger of death or bodily harm by the act of another.

Question 76

What in effect is a defence of mistake?

Answer 76

A defence of mistake is in effect a denial of intent.

Question 77

Who decides whether there is evidence of self-defence?

Answer 77

Evidence of self-defence is decided by the judge.

Question 78

What people are considered unable to give consent?

Answer 78

People are considered to be unable to give their consent if they are:
− a child
− unable to rationally understand the implications of their defence
− subject to force, threats of force or fraud.

Question 79

What actions do not allow for a defence of consent?

Answer 79

You cannot use the defence of consent in cases involving:
− aiding suicide
− criminal actions
− injury likely to cause death
− bodily harm likely to cause a breach of the peace
− indecency offences
− the placing of someone in a situation where they are at risk of death or bodily harm.