Short Answer

Question 1

Outline “M’Naghten’s Rules”

Answer 1

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.

Question 2

2. List four statutory legal duties in respect of the Crimes Act 1961

Answer 2

The expression “legal duty” refers to those duties imposed by statute or common law including uncodified common law duties: 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 3

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

Answer 3

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.

Question 4

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

Answer 4

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.

Question 5

5. Define Homicide, Section 158 of the Crimes Act 1961

Answer 5

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

Question 6

6. What was held in R v Mane?

Answer 6

For a person to be an accessory the offence must be complete at the time of the criminal involvement. One cannot be convicted of being an accessory after the fact of murder when the actus reus of the alleged criminal conduct was wholly completed before the offence of homicide was completed.

Question 7

7. State the ingredients of infanticide (s178 of the Crimes Act 1961).

Answer 7

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.

Question 8

8. What does R v Myatt state about an unlawful act in respect of section 160(2)(a) of the Crimes Act 1961?

Answer 8

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

Question 9

9. What was held in R v Tomars

Answer 9

Formulates the issues in the following way: 1. Was the deceased threatened by, in fear of or deceived by the accused? 2. If they were, did such threats, fear or deception cause the deceased to do the act that caused their death? 3. Was the act a natural consequence of the actions of the accused, in the sense that reasonable and responsible people in the accused’s position at the time could reasonably have foreseen the consequences? 4. Did these foreseeable actions of the victim contribute in a [significant] way to his death?

Question 10

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

Answer 10

• Wilfully frightening a child under 16 years of age • Wilfully frightening a sick person (Mentally or physically) Section 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 the killing of another by any disorder or disease arising from such influence, except by wilfully frightening any such child as aforesaid or sick person.

Question 11

11. What is meant by the term “justified?” Provide two examples:

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).

Question 12

12. Why is attempted murder one of the most difficult offences in the Crimes Act 1961 to prove beyond reasonable doubt?

Answer 12

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:

Question 13

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

Answer 13

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

Question 14

14. Define the term “Suicide Pact” s180(3) Crimes Act 1961

Answer 14

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.

Question 15

15. Discuss the case Forrest & Forrest and outline the case law

Answer 15

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. The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victim’s age.

Question 16

16. How do New Zealand Courts deal with a defence of Automatism arising out of taking alcohol and / or drugs?

Answer 16

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 17

17. List the ingredients of Section 48 of the Crimes Act 1961 (Self-defence or defence of another).

Answer 17

Everyone 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.

Question 18

18. What was held in R v Ranger?

Answer 18

If this accused did really think that the lives of herself and her son were in peril because of the deceased, enraged after the struggle, might attempt to shoot them with a rifle near at hand, then it would be going 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.

Question 19

19. Provide three guidelines in respect of consent regarding assault.

Answer 19

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 20

20. 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.

Answer 20

• 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.

Question 21

21. 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

Answer 21

1. Jumps or falls out of a window because they think they are going to be assaulted 2. Jumps into a river to escape an attack and drowns 3. Who has been assaulted and believes their life is in danger, jumps from a train and is killed.

Question 22

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

Answer 22

• 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 23

23. What is the definition of the period “a year and a day” as outlined in section 162(2) of the Crimes Act 1961?

Answer 23

The period of a year and a day shall be reckoned inclusive of the day on which the last unlawful act contributing to the cause of death took place.

Question 24

24. 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:

Answer 24

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”

Question 25

25. In the test for proximity, Simester and Brookbanks (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?

Answer 25

• 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?

Question 26

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

Answer 26

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

Question 27

27. What is involuntary manslaughter?

Answer 27

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

Question 28

28. Define Alibi

Answer 28

“An alibi is the plea in a criminal charge of having been elsewhere at the material time: the fact of being elsewhere”

Question 29

29. What must the Defendant include in a notice of alibi?

Answer 29

The name and address of the witness or, if the name and address is not known to the defendant when the notice is given, any matter known by the defendant that might be of material assistance in finding that witness.

Question 30

30. Define “Attempts” under section 72(1) of the Crimes Act 1961

Answer 30

Everyone who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.

Question 31

31. Outline culpable homicide section160(1) & (2) of the Crimes Act 1961

Answer 31

(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; or

Question 32

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

Answer 32

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.

Question 33

33. Define “wilfully frightening”

Answer 33

“Wilfully frightening” is regarded as:” intending to frighten, or at least be reckless as to this”. Adams on Criminal Law

Question 34

34. Explain R v Horry

Answer 34

Death should be provable by such circumstances as render it morally certain and leave no ground for reasonable doubt – that the circumstantial evidence should be so cogent and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for.

Question 35

35. What was held in R v Harney?

Answer 35

“[Recklessness involves] foresight of dangerous consequences that could well happen, together with an intention to continue the course of conduct regardless of the risk.”

Question 36

36. What are the legal duties of a parent/guardian under section 152 of the Crimes Act 1961?

Answer 36

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 steps to protect that child from injury.

Question 37

37. What are the ingredients of section 154 of the Crimes Act 1961, abandoning a child under 6?

Answer 37

Everyone is liable to imprisonment for a term not exceeding 7 years who unlawfully abandons or exposes any child under the age of 6 years.

Question 38

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

Answer 38

• Under 10 - 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. • 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.

Question 39

39. Define insanity by completing the sentence

Answer 39

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.

Question 40

40. What was held in R v Cottle? (Burden of Proof of insanity)

Answer 40

As to degree of proof, it is sufficient if the plea is established to the satisfaction of the jury on a preponderance of probabilities without necessarily excluding all reasonable doubt.

Question 41

41. What was held in R v Lipman?

Answer 41

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.

Question 42

42. What is a “strict liability” offence?

Answer 42

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. Example: Driving with Excess breath alcohol.

Question 43

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

Answer 43

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.

Question 44

44. Explain entrapment

Answer 44

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

Question 45

45. Give two circumstances where culpable homicide is murder

Answer 45

Culpable homicide is murder in each of the following cases; (a) If the offender means to cause the death of the person killed: (b) If the offender means to cause to the person killed any bodily injury 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.

Question 46

46. Define “Legal Duty”

Answer 46

The expression “legal duty” refers to those duties imposed by statute or common law including uncodified common law duties:

Question 47

47. Outline section 163 of the Crimes Act 1961

Answer 47

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 48

48. What is required state of mind for section 167(b) of the Crimes Act 1961?

Answer 48

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.

Question 49

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

Answer 49

• 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.

Question 50

50. Outline R v Blaue

Answer 50

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

Question 51

51. A hearsay statement is admissible in any proceeding if:

Answer 51

(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 52

52. What was held in R v Clancy?

Answer 52

“The best evidence as to the date and place of a child’s birth will normally be provided by a person attending at the birth or the child’s mother … Production of the birth certificate, if available, may have added to the evidence but was not essential.”

Question 53

53. Define Automatism

Answer 53

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.

Question 54

54. What is “Sane” and “Insane” Automatism?

Answer 54

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 55

55. What is the Courts view of entrapment?

Answer 55

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.

Question 56

56. Outline the subjective and objective tests relating to section 48 of the Crimes Act 1961

Answer 56

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

Question 57

57. What was held in Police v Lavelle?

Answer 57

It is permissible for undercover officers to merely provide the opportunity for someone who is ready and willing to offend, as long as the officers did not initiate the person’s interest or willingness to so offend.

Question 58

58. What is the procedure when alibi witnesses are interviewed?

Answer 58

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).

Question 59

59. If the Defendant intends to call an expert witness during proceedings, what must they disclose to the Prosecution?

Answer 59

• 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))

Question 60

60. General rules regarding intoxication;

Answer 60

In the past intoxication was considered to be no defence to a criminal charge and, indeed, an aggravating rather than mitigating factor. The general rule has been that intoxication may be a defence to the commission of an offence: • Where the intoxication causes a disease of the mind so as to bring s23 (Insanity) of the Crimes Act 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).

Question 61

61. Define Alibi;

Answer 61

“An alibi is the plea in a criminal charge of having been elsewhere at the material time: the fact of being elsewhere” (Chambers 20th Century Dictionary).

Question 62

62. Section 178, Infanticide

Answer 62

(1) 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

Question 63

63. A Hearsay statement is admissible in any proceeding if -

Answer 63

Section 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 make of the statement were required as a witness

Question 64

64. Voluntary Manslaughter

Answer 64

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.

Question 65

65. Involuntary Manslaughter

Answer 65

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 (refer page 44). The key difference between manslaughter and murder depends on the mental element that must be establish to support the charge.

Question 66

66. Degree of force under Self Defence

Answer 66

The degree of force permitted is tested initially under the following subjective criteria: o What are the circumstances that the defendant genuinely believes exist (whether or not it is a mistaken belief)? o Do you accept that the defendant genuinely believes those facts? o Is the force used reasonable in the circumstances believed to exist?

Question 67

67. Required state of mind for Section 167(b) Crimes Act 1961;

Answer 67

To show that the defendant’s state of mind meets the provisions of section 167(b), you must establish that the defendant; o Intended to cause bodily injury to the deceased o Knew the injury was likely to cause death o Was reckless as to whether death ensued or not

Question 68

68. Sections 167 and 168 define the offence of Murder

Answer 68

167 Murder defined Culpable homicide is murder in each of the following cases: (a) If the offender means to cause the death of the person killed: (b) If the offender means to cause to the person killed any bodily injury 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. 168 Further definition of murder (1) Culpable homicide is also murder in each of the following cases, whether the offender means or does not mean death to ensue, or knows or does not know that death is likely to ensue: (a) If he means to cause grievous bodily injury for the purpose of facilitating the commission of any of the offences mentioned in subsection (2) of this section, or facilitating the flight or avoiding the detection of the offender upon the commission or attempted commission thereof, or for the purpose of resisting lawful apprehension in respect of any offence whatsoever, and death ensues 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 purposes aforesaid, and death ensues from such stopping of breath.