Questions Flashcards

1
Q

Can an organisation be convicted of murder or manslaughter? Explain

A

No because the killing must be done by a human, an organisation cannot be convicted as the principal offender. They can be convicted as a party to manslaughter. Cannot be convicted of murder as principal or a party as it is not possible for an organisation to serve the mandatory life sentence.

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2
Q

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?

A
  • 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 or a sick person
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3
Q

What is the legal view of consent to death?

A

The law does not recognise the right of a person to consent to their being killed. As a consequence, their consent does not affect the criminal responsibility of anyone else involved in the killing.

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4
Q

Is a body required to prove the death of a person? Explain your answer with reference to
case law R v Horry.

A

No. (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.

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5
Q

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

A

No not if they died from injuries received while playing. However would be guilty of manslaughter if actions were considered likely to cause serious injury as you should have been aware at the time and refrained from action.

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6
Q

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

A

Yes, S167C if the offender means to cause the death of one person and by mistake kills another person then it is murder.

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7
Q

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

A

Must establish the mens rea and actus rea. An intention to kill must be proved.

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8
Q

Define voluntary and involuntary manslaughter

A

Voluntary manslaughter - mitigating circumstances (suicide pact) reduce what would be murder to manslaughter.
In-voluntary manslaughter covers types of unlawful killing in which death is caused by criminal negligence. No intention to kill or cause GBH.

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9
Q

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

A

Statutory duty of people in charge of dangerous things to take reasonable precautions to ensure peoples safety eg. motor vehicles, trains, animals, ships, weapons.

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10
Q

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 difference in these cases?
Is anybody held legally responsible for either of their deaths? If so, who, and what would the
charge be?

A

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.

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11
Q

Is a person who helps another person commit suicide criminally liable for their actions?
Explain your answer.

A

Yes they are criminally liable.

Because the law does not recognise a person’s right to consent to death, people who help
another to commit suicide or who are part of a suicide pact but survive are responsible for the
other person’s death. In such cases the surviving person is charged with manslaughter.

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12
Q

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?

A

Justified means that the person is not guilty of an offence and is not liable civilly

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13
Q

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?

A

For children aged 10-13 it must be shown that the child knew their act was wrong or contrary to law.

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14
Q

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

A

District Youth Prosecutor

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15
Q

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?

A

The High Court

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16
Q

What does “protected from criminal responsibility” mean?

A

Not guilty of an offence but civil liability may still arise.

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17
Q

What type of defence does a child under 10 years have?

A

An absolute defence

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18
Q

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

A

On the balance of probabilities

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19
Q

Is the term “disease of the mind” a question of Fact for the jury to decide or a question of
Law for the judge to decide?

A

A question of law

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20
Q

What are the two types of automatism?

A

Sane and insane

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21
Q

How is automatism best described?

A

A state of total blackout, during which a person is not conscious of their actions and not in control of them.

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22
Q

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

A

Complete acquittal

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23
Q

What is compulsion?

A

The act of compelling a person to do something against their will.

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24
Q

In relation to compulsion, what does “immediate” mean?

A

At the scene from a person present at the time.

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25
Q

What in effect is a defence of mistake?

A

A denial of intent

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26
Q

How does the defence of entrapment apply in New Zealand? Outline at least one case to
explain your answer.

A

With the defence of entrapment in New Zealand, the courts rely on judicial discretion to
exclude unfairly obtained evidence.

Police v Lavalle (1979) provides police good guidance
on how the courts apply judicial discretion in the context of “entrapment”. In that case, the
Court of Appeal held that the undercover officers were merely providing L the opportunity to
recruit (and live off the earnings) of women involved in prostitution, an activity the evidence
showed he was already willing to engage in.

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27
Q

What is the test of self-defence?

A

Subjective

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28
Q

Who decides whether there is evidence of self-defence?

A

The judge

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29
Q

What does “alibi” mean?

A

Elsewhere at the material time

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30
Q

What people are considered unable to give consent?

A

A child
Someone unable to rationally understand the implication of their defence
Someone subject to force, threats of force or fraud

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31
Q

What actions do not allow for a defence of consent?

A

-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/gbh.

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32
Q

What is the penalty for attempted murder?

A

14 Years

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33
Q

Outline Section 181 Crimes Act concealing a dead child

A

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, during or after birth

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34
Q

In which Court does a youth facing a charge of murder/manslaugher appear?

A

Over 14 heard in High Court following committal process.

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35
Q

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

A

The judge

36
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.

37
Q

Section 153 - Duty of employers to provide necessaries, what is the relevant age of the person who is employed?

A

16

38
Q

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

A

The Jury

39
Q

Section 22 Alibi witness evidence, what must the notice include?

A

The name and address of the witness, or if not known then any matter that might be of material assistance in finding the witness.

40
Q

Before a conviction for manslaughter can be obtained, what must the prosecution prove in cases of negligence?

A

A very high degree of negligence or gross negligence.

41
Q

Proximity is a question of law decided by who?

A

The judge

41
Q

Written notice of alibi is to be given by the defendant when?

A

Within 10 working days after the defendant is given notice.

42
Q

Most offences within the Crimes Act will require intent of some kind. Outline a defence that would be available?

A

Intoxication

43
Q

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

A

Any survivor is guilty of being a party to a death if death of another with the pact ensues.

44
Q

Outline S25 - Ignorance of the law

A

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

45
Q

Proximity relating to attempts

A

Proximity is a question of law, decided by the judge based on the assumption that the facts of the case are proved.

46
Q

Children aged 10-13 years of age charged with murder/manslaughter

A

Usually dealt with under CYPF Act. However charges of murder/manslaughter will be heard in the High Court following first appearance in the court which the document was filed in.

47
Q

S162 - Time when death must occur, murder, manslaughter, infanticide.

A

Death must occur within a year and a day after the cause of death.

48
Q

Outline M’Naughten’s rules

A

Frequently used to establish whether or not a defendant is insane. Based on persons ability to think rationally so that if a person is insane they were acting under such a defect or 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.

49
Q

List four staturtory legal duties in respect of the Crimes Act

A

Provide the necessaries and protect from injury
Provide necessaries and protect from injury to your charges when you are a parent or guardian
Use reasonable knowledge and skill when performing dangerous acts
Take precautions when in charge of dangerous things eg machinery.
Avoid omissions that will endanger life.

50
Q

List the differences between counselling or attempting to procure murder, and conspiracy to murder.

A

Counselling or attempting to procure murder requires the offence to be committed in NZ, conspiracy to murder can take place anywhere.

Counselling or attempting to procure murder only applies if the murder is not in fact committed. Conspiracy to murder applies regardless of whether murder is committed or not.

51
Q

Section 159 defines when a child becomes a human. Detail the provisions

A

A child becomes a human being when it has completely proceeded in a living state from the body of its mother, whether it has breathed, independent circulation, navel string severed or not.

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

52
Q

Define homicide

A

Homicide is the killing of one human being by another, directly or indirectly, by any means whatsoever.

53
Q

In general no one is criminally responsible for the killing of another by any influence of the mind. What are the exceptions to the rule?

A

Wilfully frightening a child under 16
Wilfully frightening a sick person.

54
Q

What is meant by the term justified? Provide 2 examples.

A

Some acts are justified even when they result in death. The perpetrator is exempt from criminal and civil liability.

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 person or property.

55
Q

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

A

Murphy - When proving an attempt to commit an offence it must be shown that the accused intention was to commit the substantive offence. In attempted murder Crown must prove an actual intent to kill.

56
Q

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

A

Knowing any person to have been party to murder, receives, comforts, assists that person or tampers with or actively suppresses evidence against that person in order to enable him to escape after arrest or avoid conviction.

57
Q

Define the term suicide pact

A

A common agreement between 2 or more persons having the 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 pact shall be treated as done by them in pursuance of the pact unless it is done while they have the settled intention of dying in pursuance of the pact.

58
Q

How do NZ Courts deal with a defence of automatism arising out of taking alcohol/drugs?

A

Courts are likely to steer a middle course, allowing a defence of automatism from taking alcohol/drugs to offences of basic intent only. 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.

59
Q

List section 48 ingredients

A

Everyone is justified in using force in defence of them-self or another in the circumstances as they believe is reasonable to use.

60
Q

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

A

Committing arson
Giving a child an excessive amount of alcohol.
Placing hot cinders on a drunk person to frighten them.
Supplying heroin to the deceased.
Throwing concrete from a motorway into the path of a car.
Conducting an illegal abortion.

61
Q

Provide three guidelines in respect of consent regarding assault.

A

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

62
Q

In relation to S160, give two practical examples of culpable homicide which has been caused the the victims actions prompted by threats of fear or violence.

A

Jumps out of a window because they think they will be assaulted.
Jumps into a river to escape an attack and drowns.

63
Q

To establish proof of death in relation to homicide, what 3 things must you prove

A

Death occurred
Deceased is identified as the person killed
The killing is culpable.
Death may be proved by direct or circumstantial evidence.

64
Q

S168 refers to the term grievous bodily injury. What does this mean?

A

Harm that is very serious, such as injury to a vital organ.

65
Q

What is involuntary manslaughter?

A

Unlawful killing in which the death is caused by an unlawful act or gross negligence. No intention to kill or to cause GBH

66
Q

Give an example where murder might be reduced to manslaughter even though the accused intended to kill or cause grevious bodily injury.

A

Suicide pact

67
Q

Define alibi

A

The plea in a criminal charge of having been elsewhere at the time of the offence.

68
Q

Define attempts

A

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 it was possible in the circumstances or not.

69
Q

Explain what is meant - omission to perform a legal duty

A

Casss 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.

70
Q

Define wilfully frightening

A

Intending to frighten or at least be reckless as to this.

71
Q

What are the legal duties of a parent

A

Has care or charge of a child under 18, to provide that child with necessaries and to take reasonable steps to protect that child from injury.

72
Q

What is a strict liability offence

A

An offence that does not require intent eg EBA

73
Q

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

A

Someone at the scene has threatened to kill or cause GBH
Must have genuinely believed the threats
Must not be a party to any association or conspiracy involved

74
Q

Explain entrapment

A

An agent of enforcement body deliberately causes a person to commit an offence to that person can be prosecuted.

75
Q

Give two circumstances where culpable homicide is murder

A

The offender means to cause the death of the person killed.
The offender means to cause bodily injury that is known to be likely to cause death, and is reckless whether death ensues or not.

76
Q

Define legal duty

A

Duties imposed by statute or common law including uncodified common law duties.

77
Q

What is the required state of mind for S167(b) - bodily injury

A

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

78
Q

You can not use the defence of consent in the following cases

A

Aiding suicide
Criminal actions
Injury likely to cause death
Bodily harm likely to cause a breach of the peace
Indecency offences
Placing of someone

79
Q

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 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 to be a witness.

80
Q

Define automatism

A

A state of total blackout during which a person is not conscious of their actions and not in control of them.

81
Q

What is sane automatism

A

The result of sleepwalking, a blow to the head or the effects of drugs

82
Q

What is insane automatism

A

The result of a mental disease

83
Q

Outline the subjective and objective tests relating to section 48 of the Crimes Act

A

A subjective view of the circumstances as the accused believed them.
Objective view as to the reasonableness degree and manner of the force used.

84
Q

What is the procedure when an alibi witness is interviewed

A

Do not interview unless directed by prosecutor.

Advise defence counsel and give them an opportunity to be present.

If the accused is not represented, endeavour to ensure the witness is interviewed in the presence of an independent witness.

Make a copy of a signed statement available to defence through the prosecutor.