QnA Flashcards
1
Q
What is the penatly for attempted murder?
A
14 years
2
Q
Define R v Tarei (life support)
A
The withdrawl of life support is not tretment (116CA61)
To withdraw the life support does not cause death but removes the possibility of extending a persons life through artificial means
3
Q
Outline S118 CA61 - concealment of a dead body of a child
A
Everyone 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 the birth
Is liable to 2Y imprisonment
4
Q
Which court does a youth facing a charge of murder or manslaughter appear in
A
Charges will be held 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 the accused’s state of mine 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 (intoxication)
A
It does not have to be shown that the defendant was incapable of forming the mens rea, merley that, becaue of thier 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
What is the relevant age of the person who is employed - S153 CA61
A
U16
10
Q
Where a charge of infanticide is laid, who decides on the mothers state of mind?
A
The jury
11
Q
Section 223(a)(1) Criminal Disclosure Act 2008 - What must the notice include?
A
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 of manslaughter can be obtained - S150A(1) CA61 - what must prosection prove?
A
A very high degree of negligence or gorss 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 to the defendant within how many days?
A
10 working days
S20 CDA08
15
Q
Define R v Cox
A
Consent must be full, volntary, free and iformed, freely and voluntary given by a person in a position to form a rational judgement
16
Q
As a general guideline, most offences within the CA61 will require an inent (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 a death if death of another person within the pact ensues.
18
Q
Outline S25CA61, ignorance of the law
A
The fact that an offender is ignorant of the law is not an excuse for any offenec committed by him
19
Q
Proximity relating to attempts
A
Proximity is a question of law; it is a question that is decided by the judge based on the assumption that the facts of the case are proved.
20
Q
Outline M’Naghtens rule
A
Is frequently used to establish whether or not a defendant is insane.
it is based on a persons 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 the quality of their actions or
- that what they were doing was wrong
21
Q
List four statutory legal duties in respect of the CA61
A
- provide necessaries and protect from injury
- provide necessaries and protect from injury to your charges when you are a parent or guardian
- provide necessaries as an employer
- use reasonable knowledge and skill when performing dangerous acts such as surgery
- take precautions when in charge of dangerous things such as machinery
- avoid omissions that will endanger life
22
Q
what is the difference between counselling or attempting to procure murder and conspiracy to murder
A
counselling or attempting to procure murder required that the offence is to be committed in NZ, whereas with conspiracy to murder, the murder can take place in NZ or elsewhere.
Counselling or attempting to procure murder only applies is the murder is not in fact committed, whereas conspiracy to murder applies regardless of whether murder is committed or not.
23
Q
When does a child become a human and therefore able to be murdered under S158CA61
A
159(1) - a child becomes a human being within the meaning of this act when it can 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 does in consequence of injuries received before, during or after birth.
24
Q
Define homicide S158 CA61
A
Homicide is the killing of a human being by another, directly or indirectly, by any means whatsoever
25
What was held in R v Mane (accessory)
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.
26
Ingredients of infanticide
Where a woman causes the death of a child U10, in a manner that amounts to culpable homicide,
and where
At the time of the offence the balance of her mind was disturbed by either
- not having fully recovered from the effect of giving birth to that or any other child,
or the effect of lactation,
or by any disorder consequent upon child birth
to such an extent that she should not be held fully responsible, she is guilty of infanticide and liable to imprisonment for a term not exceeding 3 years.
27
What does R v Myatt state about an unlawful act in respect of section 160(2)(a) CA61
before a breach of any act, regulation 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 persons of whom he was one.
28
What was held in R v Tomars
- was the deceased threatened by, in fear of or deceived by the accused?
- if they were, did such threats, fear or deception cause the deceased to do that act that caused their death
- was the act of a natural consequence of the actions of the accused, in the sense that reasonable and responsible people in the accused position at the time could reasonably have foreseen the consequences
- did the foreseeable actions of the victim contribute in a significant way to his death
29
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 U16
| - wilfully frightening a sick person (mentally or physically)
30
What is meant by the term justified? Provide 2 examples
when an act is justified the perpetrator is exempt from both criminal and civil liability, eg
- homicide committed in self defence
- 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 anyone.
31
Why is attempted murder hard to prove? R v Murphy
because it must be shown that the accused's intention was to commit the substantive offence. E.g, must prove actual intent to kill.
32
What are the ingredients to accessory after the fact to murder
Knowing any person to have been a party to murder
receives, comforts, assists that person or tampers with or actively suppresses evidence against that person
in order to help him to escape after the arrest to avoid conviction.
33
Define the term suicide pact
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 their own life, but nothing done by a person who enters into a suicide pack shall be treated as done by him in pursuance of that pact unless it is done while he has the settled intention of dying in pursuance of the pact.
34
Discuss the case Forrest & Forrest and outline the case law
two men were charged with having sexual intercourse with a 14 year old girl.
At the 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 conviction on the grounds that the girl had not adequately proved her age.
The best evidence possible should be produced by the prosecution in proof of the victims age. E.g someone who was present at the birth
35
What court do children aged 10-13Y charged with murder or mansalughter appear in?
Will be heard in the high court following the first apperance in the court which the charging document was filed in.
36
How do NZ courts deal with a defence of automatism arising out of taking alcohol or drugs?
The courts are likley 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.
37
List the ingredients of S48 CA61 - self defence or defence of another.
Everyone is justified in using the defence of himself or another, such force as, in circumstances as he beleives them to be, it is reasonable to use.
38
What was held in R v Ranger? (Reasonable self defecne)
If the 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.
39
Provie three guidelines in respect of consent regarding assault.
1. Everyone has the right to consent to surgical operation
2. Everyone has the right to consent to the infliction of force not involving bodily harm.
3. No one has the right to consent to thier 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 exebition caculated to collect together disorderly persons.
40
In common law, allegations of cuplble homicide have been supported where the offenders have caused death by particular circumstances. Name any four of these circumstances.
- committing arson
- giving a child an excessive amount of alochol to drink
- supplying heroin to the deceased
- throwing a large peice of concrete from a motorway over bridge into the path of oncoming traffic
- conducting an illegal abortion
41
In relation to S160(2)(d) CA61, give two practical examples of culpable homicide which has been caused by the victims actions, prompted by threats on fear of violence.
- jumps or falls out a window because they think they are going to be assaulted
- jumps into a river to escape an attack and drowns
- who has been assaulted and beleives their life is in danger, jumps from a train and is killed
42
To establish proof of death, in relation to homicide, you must prove three key elements, they are?
Death occured
Deceased is identified as the person who has been killed
The killing is cuplable
Death can be proved by direct and/or circumstantial evidence
43
S168(1)(a) CA61 refers to the term - grevious bodily injury - what does this mean and give an example of such an injury:
Means harm that is very serious, such as injury to a vital organ.
To come within subsection (1)(c), the stopping of the victim’s breath must be done wilfully
44
In the test for proximity, Simester and Brookbanks suggest the following question should be asked in determining the point at which an act of mere preperation of committing a crime may become an attempt. What are those two questions?
- had the offender done anything more than getting himself into a position from which he could embark on an actual attempt? Or
- has the offender actally commenced execution; that is to say, has he taken a step in the actual crime itself?
45
Give an example when murder might be reduced to manslaughter even though the accused intended to kill or cause GBH.
A suicide pact
46
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 such GBH.
47
Define Alibi
The plea in a criminal charge of having been elsewhere in the material time: the fact of being elsewhere.
48
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 might be of material assistance in finding that witness.
49
Define attempts S72(1) CA61
Eveyone 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.
50
Outline cuplable homicide S160(1) & (2) CA61
(1) Homicide may either be culpable or not culpable
(2) Homicide is culpable when it consists in 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 that person by threats or fear of violence, or by decpeion, to do an act which causes his death
51
Explain what is mean by omission to perform a legal duty S60(2)(b) CA61
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
52
Define wilfully frightening
Intending to frighten or at least be reckless as to this
53
Explain 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
54
what are the legal duties of a parent/guaridan Us152 CA61
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
(A) to provide that child with necessaries; and
(B) to take reasonable stepts to protect that child from injury
55
What are the ingredients of S 154 CA61, abandoning a child U6
Eveyone is liable to imprisonment for a term not exceeding 7 years who unlawfully abandons or exposes any child under 6
56
Outline the culpability for children U10 and children 10-13
U10 - 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
10-13Y - it must be shown that the child knew their act was wrong or contrarty to law. If this knowledge cannot be shown, the child cannot be criminaly liable for the offence
57
Define insanity
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
58
What was held in R v Cottle (burdern of proof of insanity)
As to degree of proof, it is sufficent 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
Where automatism is brought about by a voluntary intake of alcohol and drugs the Court may be reluctant to accept that the actions where 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 can escape liability for such an offence is to prove a total absence of fault. Eg - driving with EBA
61
What 3 points must be satisfied before a defence of compulsion can be used?
1. A person is protected from criminal responsibility if they have been compelled to commit the offence by someone at the scene who threatened them that they would otherwiise be killed or cause GBH.
2. The accused must have genuinely believed the threats
3. Must not be a party to any association or conspiracy involved in carrying out the threats
62
Explain entrapment
Entrapment occures when an agent of an enforecement body deliberatley causes a person to commit an offence, so that a person can be prosecuted
63
Give two circumstances where cuplable homicide is murder
1. If the offender means to cause the death of another person
2. 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
64
Define legal duty
Refers to those duties imposed by statute or common law including uncodified common law duties
65
Outline S163 CA61 (wulfully frightening)
No one is criminally responsible for the killing of another by influence on the mind alone, except by wilfully frightening a child U16 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
66
What is required state of mind for S167(b) CA61
You must establish 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 likley to cause 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
Those who use violence must take thier 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
- the maker of the statement is unavailable as a witness or;
- the judge considers that undue expense or delay would be caused if the maker of the statement were required as a witness
70
What was held in R v Clancy
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 be added to the evidence but is not essential
71
Define Automatism
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 - the result of sleepwalking, a blow to the head or effect of drugs
- Insane - the result of a mental disease
73
What is the courts view on entrapement
The courts have rejected entrapment as a defence per se, preferring instead to rely on the discretion of the trial judge to excluse evidence that would operate unfairly against the accused
74
Outline the subjective and objective tests relating to section 48CA61
Once the accused has decided that use of force was required, 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?
It is permissible for undercover officers to merely provide the opportuinity for someone who is ready and willing to offend, as long as the officers did not initiate the person’s interest or willingness to offend
76
What is the procedure when alibi witnesses are interviewed?
The O/C should not interview the alibi witness unless the prosecutor request them to do so. If an interview is requested:
- advise the defence counsel of the proposed interview and give them a reasonable opportuinity 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 Police
- 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 ailbi witness can be witheld.
77
If the defendant intends to call an expert witness during proceedings, what must they disclose to the prosecution?
- any breif of evidence to be given or any report provided by that witness or
- if that breif or any such report is not available, a summary of the evidene to be given and the conclusions of any report to be provided
- this information must be disclosed 14 days before the date fixed for the defendants hearing or trial, or within any further time that the court may allow.
78
What are the general rules regarding intoxication?
Intoxication was considered to be no defence in the past however the genreral rule is that intoxiation may be a defence:
- where the intoxication causes a disease of the mind as to bring insanity into effect
- if intent is required as an essential element of the offence and the drunkness is such that the defnece can plead a lack of intent to commit the offence
- where the intoxication causes a state of automatism
79
Define alibi
In the plea of a criminal charge of having been elsewhere at the mateiral time; the fact of being elsewhere
80
What is voluntary manslaughter
Mitigating circumstances, such as suicide pact, reduce what would otherwise be murder to manslaughter, even though the defendant may have intended to kill or cause GBH
81
The degree of force permitted is tested initially under what subjective criteria?
- what are the circumstances that the defendant genuinely beleives exist (mistaken or beleif)
- do you accept that the defendant genuinaly believes those facts?
- is the force used reasonable in the circumstances believed to exist?
82
Define S167CA61 - murder defined
Culpable homicide is murder in each of the following:
(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 inury that is known to the offender to be likely to cause death, and is reckless whether death ensues or not
(C) if the offender means to cause death, or, being so reckless as aforesaid, means to cause such bodily injury as aforesaid to one person, and by accident or mistake kills another person, though he does not mean to hurt the person killed
(D) if the offender for any unlawful object does an act that he knows to be likely to cause death, and thereby kills any person, though he may have desired that his object should be effected without hurting anyone
83
What is the further definition of murder S168CA61
(1) Culpable homicide is also murder in each of the following cases, whether the offender means or does not mean death to ansue, or knows or does not know that death is likely to ensue:
(A) if he means to cause gravious 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 resisiting lawful apprehension in respect of any offence whatsoever, and death ensues from such injury
(B) if he administers any 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 purpose aforesaid, and death ensues from such stopping of breath
