SA Flashcards
Outline “M’Naghten’s rules”
The M’Naghten’s rules (or test) is frequently used to establish whether or not a defendant is insane. It is based on the person’s ability to think rationally, so that if a person is insane they were acting under such a defect of reason from a disease of the mind that they did not know:
• The nature and quality of their actions, or
• That what they were doing was wrong.
List four statutory legal duties in respect of the Crimes Act 1961
• 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).
List the difference between counselling or attempting to procure murder (s174) and conspiracy to Murder (s175)
Counselling or attempting to procure murder requires that the offence is to be committed in New Zealand, whereas with conspiracy to murder, the murder can take place in New Zealand or elsewhere.
Counselling or attempting to procure murder only applies if the murder is not in fact committed, whereas conspiracy to murder applies regardless of whether murder is committed or not.
Section 159(1) & (2) of the Crimes Act 1961 defines when a child becomes a human being and is therefore able to be murdered under section 158. Detail the provisions of section 159(1) & (2).
159(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.
159(2) the killing of such child is homicide if it dies in consequence of injuries received before, during, or after birth.
Define Homicide, Section 158 of the Crimes Act 1961
Homicide is the killing of a human being by another, directly or indirectly, by any means whatsoever
State the ingredients of infanticide (s178 of the Crimes Act 1961)
Where a woman causes the death of any child of hers under the age of 10 years in a manner that amounts to culpable homicide, and where at the time of the offence the balance of her mind was disturbed, by reason of her not having fully recovered from the effect of giving birth to that or any other child, or by reason of the effect of lactation, or by reason of any disorder consequent upon childbirth or lactation, to such an extent that she should not be held fully responsible, she is guilty of infanticide, and not of murder or manslaughter, and is liable to imprisonment for a term not exceeding 3 years.
What does R v Myatt state about an unlawful act in respect of section 160(2)(a) of the Crimes Act 1961?
Before a breach of any Act, regulation or bylaw would be an unlawful act under s 160 for the purposes 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
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 under 16 years of age
• Wilfully frightening a sick person (Mentally or physically)
What is meant by the term “justified?” Provide two examples:
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).
Why is attempted murder one of the most difficult offences in the Crimes Act 1961 to prove beyond reasonable doubt?
R v Murphy
When proving an attempt to commit an offence it must be shown that the accused’s intention was to commit the substantive offence. For example, in a case of attempted murder it is necessary for the Crown to establish an actual intent to kill
What are the ingredients to accessory after the fact to murder?
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 to avoid conviction.
Define the term “Suicide Pact” s180(3) Crimes Act 1961
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.
Discuss case Forrest and Forrest
In R v Forrest & Forrest two men were charged with having sexual intercourse with a 14-year-old girl who had run away from Child Welfare custody. At 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 convictions on the grounds that the Crown had not adequately proved the girl’s age.
How do New Zealand Courts deal with a defence of Automatism arising out of taking alcohol and / or drugs?
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.
List the ingredients of Section 48 of the Crimes Act 1961 (Self-defence or 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.
Provide three guidelines in respect of consent regarding assault.
- Everyone has a right to consent to a surgical operation.
- Everyone has a right to consent to the infliction of force not involving bodily harm.
- No one has a right to consent to their 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.
- 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.
In common law, allegations of culpable 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 alcohol to drink
• Placing hot cinders and straw on a drunk person to frighten them
• Supplying heroin to the deceased
• Throwing a large piece of concrete from a motorway over bridge into the path of an approaching car
• Conducting an illegal abortion
In relation to Section 160(2)(d) of the Crimes Act 1961,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 of 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 believes their life is in danger, jumps from a train and is killed.
To establish proof of death, in relation to homicide, you must prove three key elements, they are:
• 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.
Section 168(1)(a) of the Crimes Act 1961 refers to the term “grievous bodily injury” what does this mean and give an example of such an injury:
In subsection (1)(a), “grievous bodily 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”
In the test for proximity, Simester and Brockbanks (Principles of Criminal Law 224) suggest the following questions should be asked in determining the point at which an act of mere preparation of committing a crime may become an attempt. What are those two questions?
• 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 crime itself?
Give an example when murder might be reduced to manslaughter even though the accused intended to kill or cause grievous bodily harm (voluntary manslaughter)
Mitigating circumstances, such as a suicide pact, reduce what would otherwise be murder to manslaughter, even though the accused may have intended to kill or cause grievous bodily harm.
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 grievous bodily harm.
Define alibi?
An alibi is the plea in a criminal charge of having been elsewhere at the material time: the fact of being elsewhere”
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.
Define “Attempts” under section 72(1) of the Crimes Act 1961
Every one 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.
Outline culpable homicide section160(1) & (2) of the Crimes Act 1961
(1) Homicide may be either culpable or not culpable. (2) Homicide is culpable when it consists in the killing of any person— (a) By an unlawful act; or (b) By an omission without lawful excuse to perform or observe any legal duty; or (c) By both combined; or (d) By causing that person by threats or fear of violence, or by deception, to do an act which causes his death
Explain what is meant by section 160(2)(b) of the Crimes Act 1961, omission to perform a legal duty.
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.
Define “wilfully frightening”
“Wilfully frightening” is regarded as:” intending to frighten, or at least be reckless as to this”. Adams on Criminal Law
What are the legal duties of a parent/guardian under section 152 of the Crimes Act 1961?
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.
What are the ingredients of section 154 of the Crimes Act 1961, abandoning a 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.
Outline the culpability for children under 10 and children 10-13 years.
• Under 10 - A child aged under 10 years have 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.
• 10-13yrs - 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.
Define insanity by completing the sentence
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.
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.
What 3 points must be satisfied before a defence of compulsion can be used?
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 accused must have genuinely believed the threats and must not be a party to any association or conspiracy involved in carrying out the threats.
Explain entrapment
Entrapment occurs when an agent of an enforcement body deliberately causes a person to commit an offence, so that person can be prosecuted.
Give two circumstances where culpable homicide is murder
(a) If the offender means to cause the death of the person killed:
(b) If the offender means to cause to the person killed any bodily injury 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 any one.
Define “legal duty”?
The expression “legal duty” refers to those duties imposed by statute or common law including uncodified common law duties
Outline section 163 of the Crimes Act 1961 (killing by influence)
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.
What is required state of mind for section 167(b) of the Crimes Act 1961?
To show that the accused’s state of mind meets the provisions of s167(b), you must establish that 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.
You cannot use the defence of consent to assault in the following cases:
• 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.
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
Define automatism
Automatism can best be described as a state of total blackout, during which a person is not conscious of their actions and not in control of them.
What is sane and insane automatism?
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.
What are the courts views on entrapment?
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 accused.
Outline the subjective and objective tests relating to section 48 of the Crimes Act 1961
Once the accused has decided that use of force was required (a subjective view of the circumstances as the accused 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
What is the procedure when alibi witnesses are interviewed?
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.
• Advise the defence counsel of the proposed interview and give them a reasonable opportunity to be present
• If the accused is not represented, endeavour to ensure the witness is interviewed in the presence of some independent person not being a member of the Police.
• Make a copy of 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).
If the Defendant intends to call an expert witness during proceedings, what must they disclose to the Prosecution?
• Any brief of evidence to be given or any report provided by that witness, or
• If that brief or any such report is not available, a summary of the evidence to be given and the conclusions of any report to be provided.
• This information must be disclosed at least 14 days before the date fixed for the defendants hearing or trial, or within any further time that the court may allow (s23(1))
