short answer mcq

Question 1

Can an organisation be convicted of murder?

Answer 1

An organisation cannot be convicted as either a principal offender or a party to the offence, this is because the offence carries a mandatory life sentence.

However in cases of manslaughter
An organisation can be convicted as a party to the offence.

Question 2

When does a child become human?

Answer 2

S159 defines when a child becomes a human.
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 indep[endent circulation or not and whether the navel has been severed or not.
Killing of such a child is homicide if it dies in consequence of injuries before, during or after birth.

Question 3

6 examples of unlawful acts

Answer 3

Arson
Giving a child excessive alcohol
Placid hot cinders and straw on a drunk person to frighten them
Supplying heroin to a person who ods
Throwing a piece of concrete onto a motorway in the path of a car
Conducting an illegal abortion where the mother dies.

Question 4

What are duties defined in the crimes act where every person has a responsibility?

Answer 4

Provide necessaries and protect from injury

Provide necessaries and protect from injury 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.

Question 5

Can unlawful acts also be omissions to perform a duty?

Answer 5

Sometimes unlawful acts can also be an omission to perform a legal duty such as to drive a car recklessly that you kill a pedestrian is both an unlawful act and an omission to a duty to take precautions when in charge of a dangerous thing

Question 6

What must be proved in relation to a threat of violence?

Answer 6

In relation to threats, fear of violence must prove the fear of violence was well founded but do not need to show defendants action was the only means of escape.

Question 7

3 examples of culpable homicide prompted by threat

Answer 7

Jumps out a window and dies as they think they are going to be assaulted
Jumps into a river to escape an attack and drowns
Who has been assaulted and believes there life is in danger jumps from a train and is killed

Question 8

What two things must be proven for frightening a child or sick person?

Answer 8

May be any act that frightens so long as done wilfully.

Wilfully means intended to frighten or at least reckless

Question 9

When does killing by influence on the mind apply? provide an example

Answer 9

Not a crime except in s163.
Applies to someone who mentally tortures a person who is already mentally or physically sick so that a person has a breakdown and commits suicide.

E.g
Man took tests for a stomach complaint, as a joke a hospital employee sent a letter saying he had inoperable cancer if the man had as a consequence committed suicide the sender of the letter could be charged.

Question 10

Can a person consent to death?

Answer 10

No one has the right to consent to be killed, this means that if someone is killed the fact they gave consent will not affect criminal responsibility of anyone involved in the killing.

Question 11

When would a person who dies in a sport be culpable? What offence would a person be guilty of?

Answer 11

Death to a participant in a sport will not normally be culpable unless the person causes the death of another by an act that is likely to cause serious injury, they will be guilty of manslaughter.

Question 12

What three things must be proved to establish a death

Answer 12

Death occurred
Deceased is identified as the person who has been killed
The killing is culpable

Death can be proved by direct or circumstantial evidence.

Question 13

What acts are justifiable even when they result in death?

Answer 13

Self defence s48
Prevent suicide or commission of an offence which would be likely to cause immediate death or serious injury of anyone s41
Force has to be reasonably necessary in the circumstances

Question 14

What other 3 things can constitute a charge of murder (S168)

Answer 14

Means to cause gbh for the purpose of facilitating the commission of any offence in s2 or facilitating the flight or avoiding the death

Administers any stupefying or overpowering thing for any purpose aforesaid and death ensues

Wilfully stops the breath of any person for any of the purposes aforesaid and death ensues.

Question 15

What 3 possibilities in regard to intent must be shown to charge someone with murder under s167

Answer 15

Intended to cause death or
Knew that death was likely to ensue or
Was reckless that death would ensue.

Question 16

What is an example of killing in unlawful pursuit?>

Answer 16

Classic example is death caused by blowing up wall to liberate prisoners

Question 17

What two things were considered in R v McKeown in relation to killing in the pursuit of unlawful object?

Answer 17

Whether the defendant knew the acts were likely to cause death
Whether the defendant’s original intent of the indecent assault amounted to causing harm

Question 18

What is the sentence for murder?

Answer 18

S102 sentencing act

An offender who is convicted of murder must be sentenced to imprisonment for life unless given the circumstances a sentence of life would be manifestly unjust

Question 19

What two things are the test for proximity in relation to attempts

Answer 19

Has the offender done anything more than getting himself into a position which he could embark on an actual attempt

Has the offender actually commenced execution

Question 20

Is it an offence to conspire to commit a murder outside NZ if it was planned in NZ?

Answer 20

Conspiracy to murder includes to commit a murder outside nz if planned in nz

Question 21

What are the penalties for the associated murder offences

Answer 21

S173 attempt to murder 14 yrs
S174 counseling or attempting to procure murder 10yrs
Difference is s174 applies when murder is not committed, if it is committed then s66 applies
S175 conspiracy to murder 10yrs
S176 accessory after the fact to murder - 7 yrs

Question 22

What must be considered if you come across a killing from a sudden fight?

Answer 22

Self defence
The requisite mens rea for the murder charge

It is crucial to consider these if you are to determine how the killing should be viewed
If the homicide can be justified as having arisen out of self defence.
If the fact there was a fight negates that the defendant had the required mens rea to bring a charge of murder within s1657 the proper verdict is manslaughter

Question 23

Provide three examples of manslaughter by negligence

Answer 23

Charged with manslaughter on the basis the defendant used a dangerous thing riskily, the consent of the person who died is no defence.
E.g person agrees to ride on the bonnet of vehicle who then dies, driver negligent as drove dangerously knowing the person was there.

Where the death occurs during a game or contest, the death is treated a non culpable homicide unless the defendant’s actions were likely to cause serious injury. In which defendant is guilty of manslaughter

Even if the deceased contributed to their death by negligence this does not afford the defendant a defence against manslaughter by negligence, contributory negligence is no defence.

Question 24

When would you charge with manslaughter for a driving death

Answer 24

Juries have been reluctant to convict negligent drivers of manslaughter
LTA charges have been formulated.
If circumstances are aggravating consult with legal for guidance as to filing a manslaughter charge.
Intent of offender important.

Before a conviction of manslaughter can be obtained prosecution must prove a very high degree of negligence or gross negligence.

Question 25

what must be proven for infanticide

Answer 25

Must have been killing in a manner which would be culpable homicide.

Must prove mothers mind was disturbed because of birth of lactation period

It is up to a jury to decide if the state of mind was due to the effect of childbirth.

Prosecution can file charging documents for both infanticide and murder in this case and leave it to the jury to decide.

Question 26

discuss the duties of care

Answer 26

S151
Duty to provide necessaries and protect from injury
Actual care or charge of a person who is a vulnerable adult and who is unable to provide himself or himself with necessaries is under a legal duty
To provide necessaries
To take reasonable steps to protect that person from injury
S152
Duties of parent
Everyone who is a parent or in a place of a parent and who has actual care of a person under 18 has a legal duty to
Provide child with necessariues
Take reasonable steps to protect that person from injury

S153
Duties of employers to provide necessaries

Everyone who as an employer has contracted to provide food clothing lodging for any servant or apprentice under 16 is under a legal duty to provide the same ios crminaly respojnsible for omitting without lawful excuse to perform such duty is the death of that servant or apprentice is caused or life endangered or health injured

Question 27

discuss acceleration of death

Answer 27

S164 acceleration of death
By act or omission causes the death of another person kills that person although the effect of the bodily injury caused to that person was merely to hasten his death while laboring under some disorder or disease arising from some other cause.

Question 28

Discuss the preventable death

Answer 28

S165 causing death that might have been prevent

Everyone who by any act or omission causes the death of another person, kills that person although death from that cause might have been prevented by resorting to proper means.

-S165 imposes a liability on a person who is responsible for a death if an injury inflicted by him is an operative cauuse of death, even thgough it could have been prevented with proper treatment.
E.g smacks someone with a rusty knife and they die of tetanus, still liable.

E.g jehovah get stabbed and refused a blood transfusion even after being told they would die.

Question 29

give 3 examples of s166

Answer 29

Person wounded in a duel and died as a result of surgical operation made necessary by wound. Person who inflicted wound guilty of murder

Deceased severely kicked by defendant. Surgeon gave deceased brandy to restore her but some went into her lungs, suggested that this was the cause of death. Court held that this did not affect the defendants responsibility

Necessary to operate on a person as a result of an assault by the defendant. The person died under administration of anaesthetic, held that this did not affect the defendants criminal responsibility.

Question 30

discuss the culpability of suicide offences

Answer 30

Culpability of another

S179 makes culpability to assist a suicide where the person assistting has no intention of committing suicide themselves

S180(1) makes it an offence to enter into a pact and only one dies as a result of an action of another person.
E.g a and b enter a pact and A shoots b but does not shoot themselves, A would be guilty of manslaughter not murder

180(2) makes it an offence where two enter a pact wherethe are bothy responsible for the actions that caused one of their deaths. Eg two people take drug ODs in a pact but one survives, would be liable under this section not 179.

Question 31

Discuss concealing the body of a child

Answer 31

Child not defined but intended to refer to a child recently birthed
Body must be dead when disposed, although not necessary to be found or identified.
If child is alive when disposed it may be murder or manslaughter or infanticide.

Must be done with the intent to conceal the fact of the birth, this may be satisfied if it was known to some people not others, enough that the intent was to conceal the birth from a particular individual.

Question 32

When is a hearsay statement admissible?

Answer 32

Hearsay statement is admissible in any proceeding if:

The circumstances relating to the statement provide reasonable assurance that the statement is reliable and

The maker of the statement is unavailable

The judge considers that undue expense or delay would be caused if the maker were required as witness

Question 33

Circumstances that a judge would consider in relation to a statements reliability

Answer 33

Nature
Contents
Circumstances as to making the stx
Circumstances relating to the veracity of the person
Circumstances relatin to the accuracy of the observation

Question 34

What must be done for a child between 10-13

Answer 34

Must be shown they knew the act was wrong or contrary to law
In addition to actus and men rea
Onus on prosecution to prove child knew it was wrong

Question 35

where can a cyp be held for offence of murder if found guilty?

Answer 35

Young person can be imprisoned for murder or detained in cyp facility

Question 36

Who determines insanity and presents the case for insanity? What are the practical considerations

Answer 36

It is not proper for the crown to call evidence of insanity but any relevant evidence in the hands of the crown should be offered to the defence leaving it to the defence to put up the plea of insanity
If the defence does not plead to insanity it would only be in exceptional cases that the trial judge would put the issue to the jury.

When convicted of a imprisonable offence a judge may still commit a person to a hospital or facility or instead of passing sentence order that the person be treated under CTO.

Court must be satisfied the impairment requires the CTO of the offender in the offenders interest or reasons of public safety.

Question 37

Can a person be acquitted by insanity if no insanity defence is raised?

Answer 37

A person may be acquitted of a charge if defence has not put up defence of insanity if there is strong evidence to indicate the offender was insane at the time.

Judge must direct jury’s attention to the defence of insanity as set out in s23 ca61, judge must do this if defence not put forward.

Question 38

Can a person be deemed insane by consent or does it have to run a trial?

Answer 38

Early conclusion to trial
Allows the case to be concluded quickly by not guilty on account of insanity by consent.

Question 39

Discuss the burden of proof for insanity

Answer 39

As the law assumes defendant is sane
Burden of proof on defence to prove on balance of prob defendant was insane at the time

Question 40

when may a defendant plead insane?

Answer 40

Defendant may plead insane to any imprisonable offence, is a legal question not a medical one.

Question 41

What is MNAGHTENS TEST

Answer 41

Used to establish whether or not a defendant is insane, based on a the 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 mind that the did not know

Did not know
The nature and quality of their actions or
That what they were doing was wrong.

Question 42

Practically how does an insanity defence play out in court?

Answer 42

Medical witnesses are allowed to give opinion as to whether they regard a disorder as a disease of the mind, but such classification is not final and it remains a question of law for the judge.

Not a medical question but a legal one.

Question 43

Does a disease of the mind need to be a physical brain injury?

Answer 43

Brain not required to be damaged in anyway to suffice the disease of the mind

elipsey has been held to be a disease as well as bipolar.

Question 44

What happens if a person if acquitted on insanity? what would a judge consider what to do?

Answer 44

If someone is found unfit to stand or acquitted on insanity, they may be detained as a special patient.

When found unfit or acquitted by insanity the court will decide on orders or detention, or release.

Court must consider:
All circumstances
Medical evidence
Alternative measures are safe in the public interest

In case of a serious homicide, the public interest to detain the offender may override other factors and the attorney general cant direct that a defendant is held as a patient.

Question 45

What are the causes of automatism?

Answer 45

A medical condition, concussion, sleepwalking, brain tumor, epilepsy, arteriosclerosis.

Consumption of alcohol or drugs

Question 46

What is the courts take on automatism by drugs and alcohol?

Answer 46

Where automatism is brought about by a voluntary intake of alcohol or drugs the court may be reluctant to accept the actions were involuntary.

Decisions of the courts indicate convincing evidence is necessary to support it and only in very rare cases will it be enough for a person to say they did not know or cannot remember what happened or they had a black out.

Referred to as : one of the first refuges of a guilty conscience and a popular excuse.

Question 47

What are the types of automatism and the definitions

Answer 47

Sane automatism - result of sleepwalking, a blow to the head or affects of drugs

Insane automatism - result of a mental disease.

Question 48

How does the two types of automatism result in a acquittal?

Answer 48

If insane automatism it may lead to a finding of insanity, even if the defendant has not raised this and relied on automatism alone.
It is important that if determined that a finding of insanity is permissible, can only be if mental disease is present. And this may be put to the jury regardless if the issue has been raised or not.

A successful plea of sane automatism negates intent, therefor no mens rea and must be acquitted of the offence.

Question 49

Can a defence of automatism be raised due to drug consumption?

Answer 49

Position is in nz, that if a person has become a automaton by ingesting so many drugs or alcohol that they are not responsible for their actions is a defence that is available if the evidence can clearly raise the issues.

Question 50

What is the burden of proof that must be established for a automatism defence for strict liability offences?

Answer 50

Even with strict liability offences like EBA, it is possible to raise this defence, however because it is a strict liability offence (means no mens rea required to be proved) the defence must establish a defence to the balance of probabilities.

Question 51

When may intoxication be a defence?

Answer 51

GENERAL RULE
Intoxication may be a defence to an offence:
Where the intoxication causes a disease of the mind so as to bring insanity S23 into effect
If intent is required as an element of the offence and the drunkenness is such that the defence can plead to a lack of intent to commit the offence
Where intoxication causes a state of automatism

Question 52

What must the defence establish to use intoxication?

Answer 52

Defence needs to only establish reasonable doubt about the defendants required state of mind at the time of the offence.

Does not have to be shown that the defendant was incapable of forming the mens rea merely that because of their drunken state they did not have the proper state of mind to be guilty.

Whether it be general or particular intent burden is same, crown must prove the intent required by crime alleged.

Question 53

Is ignorance of law a defence?

Answer 53

S25 the fact an offender is ignorant of law is not an excuse for any offence committed by him

Question 54

Provide an example of ignorance of law

Answer 54

P v Taggart
Defendant obtained tablets labeled mubin which he knew were designed to stimulate sexual activity, but did not know it contained an alkaloid or was a poison.
He dropped some of the tablets in drinks of companions who as a result went to hospital.
Convicted of charge of selling the alkaloid.
Defence tried to say mens rea was absent, held as the fact the person does not know a drug is a poison is ignorance of the law.

Where a child does not know their act was contrary to law, they will not be liable.

Question 55

When is a person protected from criminal culpability by compulsion?

Answer 55

A person is protected from criminal responsibility if they have been compelled to commit the offence by a person present at the scene who had threatened to kill/gbh if the genuinely believed the threats, and were not a party or conspirator to the offence/threats

THreats must be immediate and from a person present at the time.

May be different where women and children act under threats

Question 56

when is a mistake a defence?

Answer 56

Except in cases where proof of mens rea is unnecessary, bonafide mistakes or ignorance as to matters of fact is available as a defence

Needs to be a honest mistake.

Question 57

Do the nz courts recognize entrapment as a defence?

Answer 57

In nz courts have rejected entrapment as a defence preferring to rely on discretion of the judge to exclude unfairly obtained evidence.

Question 58

What is the key line the courts take in relation to entrapment?

Answer 58

Courts distinguish between where officers have provided an opportunity to those predisposed to commit an offence and where people are encouraged by officers to commit an offence.

Question 59

What are examples of encouraging and overstepping?

Answer 59

R v teki - UC officer develop a relationship with a women, and got her to supply cannabis.

Question 60

What is an example of a reasonable entrapment?

Answer 60

Police v Lavelle
Offender advertised a offering in the paper for a live in female. A women who answered complained about his activity.
A police officer called him and he offered her opportunities in prostitution. And agreed the police officer would do this for her.
They met up and he took her to his premise where he was arrested.

Question 61

In relation to self defence, the degree of force used is determined by what 3 criteria?

Answer 61

What are the circumstances the defendant believes exists

Do you accept the defendant believes those facts

Is the force used reasonable in the circumstances believed to exist.

Question 62

Who determines self defence in a trial?

Answer 62

Self defence is a question for the jury unless it would be impossible for the jury to entertain a reasonable doubt that the defendant had acted in the defence of himself or another within s48

Question 63

Can a preemptive strike be self defence?

Answer 63

PREEMPTIVE STRIKE
It is possible for self defence to be raised even with a preemptive strike.

Question 64

What is the obligation on the defence producing a alibi witness under the CDA?

Answer 64

1)Defendant must give written notice to prosecutor of alibi witness
2)Must be given within 10 days a
3)Without limiting
a)Must include name and address of witness
b)Defendant must take steps to ensure name and address is ascertained
c) If name and address not given, but defence becomes aware, must provide that to prosecution
d)If the defence is notified that the witness has not been traced defendant must give notice of aunty other matter which may be of assistance in locating them.

Question 65

Who conducts the alibi witness enquiries?

Answer 65

OC CASE Required to make enquiries to confirm or rebut evidence of alibi

Question 66

What is the process of interviewing a alibi witness?

Answer 66

PROCEDURE
1. Advise defence of proposed interview and give opportunity for them to be present
2. If defendant is not represented endeavour to have a independent person present
3. Make a copy of the witnesses statement available to defence, any information which reflects the credibility of the witness can be withheld under cda.

Question 67

What must the defence do if they intend to call a expert?

Answer 67

If defendant intends to call a expert they must disclose
Brief of evidence or any reports
Summary of evidence to be given if no brief or report
Information must be disclosed at least 10 days before date of trial.

Question 68

what situations is consent a defence?

Answer 68

In some cases it is a complete defence to the offence.
For for offences against person and property consent is a defence

Question 69

What are the guidelines for consent?

Answer 69

1. EVERYONE has the right to consent to surgery
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 the right to consent to bodily harm in such a manner as to be a breach off peace or prize fighter calculated to collect disorderly persons
5. It is uncertain to what extent a person has a right to consent to their life being put in danger or bodily harm by the act of another

Question 70

Discuss how an injury inflicted and a person died would not be liable in relation to substantial cause of death. include case law

Answer 70

INJURY MUST BE SUBSTANTIAL CAUSE OF DEATH

R v Jordan provides an example of a situation where the original aggressor was not held liable.

Jordan stabbed a man in the chest and the wound was healing but the medical practitioner carelessly used a drug which the patient was allergic to and carried out IV injections, and the patient died from pneumonia.

Court of appeal held
Death result from normal treatment employed to deal with a injury may be regarded as caused by the injury
In other circumstances it is a question of fact to establish a casual connection between the death a felonious injury
Held that the treatment was not normal and was palpably wrong and the direct and immediate cause of death and murder conviction quashed.

Question 71

Is a person still liable if the death was preventable by proper medical treatment?

Answer 71

-S165 imposes a liability on a person who is responsible for a death if an injury inflicted by him is an operative cause of death, even though it could have been prevented with proper treatment.
E.g smacks someone with a rusty knife and they die of tetanus, still liable.