Short Answers

Question 1

Define homicide S158

Answer 1

The definition of homicide is the killing of a human being by another, directly or indirectly, by any means whatsoever

Question 2

Detail S159(1) and (2) killing a child

Answer 2

(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 its naval string has been severed or not
(2) The killing of such a child is homicide if it dies in consequence of injuries received before, during or after birth

Question 3

Can an organisation, as opposed to a human being, be charged with murder or manslaughter?

Answer 3

An organisation can be convicted as a party to the offence of manslaughter. An organisation cannot be convicted as either a principal or party to the offence of murder as it carries a mandatory life sentence.
MURRAY WRIGHTLTD: Because the killing must be done by a human being, an organisation (such as a hospital or food company) cannot be convicted as a principal offender

Question 4

Define culpable homicide S160(1) and (2)

Answer 4

(1) Homicide may be either culpable or not culpable
(2) Homicide is culpable if it consists of the killing of any person:
a) By an unlawful act or
b) By an omission without lawful excuse to perform or observe a 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
e) By wilfully frightening a child under the age of 16 years or a sick person

Question 5

In common law, allegations of culpable homicide have been supported where the offender has caused death in particular circumstances, name 4 of these?

Answer 5

• 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 heroine 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 6

Define an unlawful act

Answer 6

S2 CA61: Unlawful act means a breach of any act, regulation, rule, or bylaw

Question 7

What was held in R V MYATT?

Answer 7

[Before a breach of any act, regulation or bylaw would be an unlawful act under S160 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 8

Omission to perform legal duties, S160(2)(b), list 4 duties in respect of this section?

Answer 8

• Provide the necessaries and protect from injury (S151)
• Provide the 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 a dangerous act, such as surgery (S155)
• Take precautions when in charge of dangerous things, such as machinery (S156)
• Avoid omissions that will endanger life (S157)

Question 9

What was held in R V TOMARS re threats, fear of violence and deception (S160(2)(d))?

Answer 9

Formulates the issues in the following way:

1. Was the deceased threatened by, in fear of or deceived by the defendant
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 defendant in the sense that reasonable and responsible people in the defendants at the time could reasonably have foreseen the consequences
4. Did the foreseeable actions of the victim contribute in a significant way to his death

Question 10

Give 2 examples of culpable homicide that has been caused by the victims actions prompted by threats or fear of violence?

Answer 10

1. Jumps or falls out of a window because they think they will 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 11

How does Adams on criminal law define wilfully frightening?

Answer 11

Wilfully frightening is regarded as intending to frighten, or at least being reckless as to this

Question 12

What does S163, killing by influence on the mind state?

Answer 12

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 13

What does S63 state about consent to death?

Answer 13

No one has the right to consent to being killed

Question 14

What 3 things must you establish to prove death?

Answer 14

1. Death occurred
2. Deceased is identified as the person who has been killed
3. The killing is culpable

Question 15

What was held in R V HORRY about proof of death?

Answer 15

Death should be provable by such circumstances as render it morally certain and leave no ground for reasonable doubt - that 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 16

Some acts are justified, even when they result in death, what is meant by the term justified and give 2 examples

Answer 16

When an act is justified the perpetrator is exempt from criminal and civil liability.

1. Homicide committed in self defence (S48)
2. Homicide committed to prevent suicide or commission of an offence which would likely cause immediate and serious injury to the person or property of another (S41)

Question 17

M/C - What does S162(2) state re Death must be within a year and a day?

Answer 17

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

Question 18

List the ingredients of S167?

Answer 18

(a) If the offender means to cause the death of the person killed
(b) If the offender means to cause 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 the 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 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 19

What was held in R V HARNEY?

Answer 19

Foresight of dangerous consequences that could well happen together with an intention to continue the course of conduct regardless of the risk

Question 20

What must be proved in relation to S167(b)?

Answer 20

That the defendant:

• 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 21

Case law in relation to killing in pursuit of an unlawful object S167(d)?

Answer 21

R V DESMOND: Not only must the object be unlawful but also the accused must know that his act is likely to cause death. It must be shown that his knowledge accompanied the act causing the death

Question 22

What were the issues in R V MCKEOWN?

Answer 22

1. Whether the defendant knew the acts were likely to cause death AND
2. Whether the original intent of indecent assault amounted to an unlawful object

Question 23

What was outlined in S66(2) parties to offences?

Answer 23

(2) Where 2 or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose

Question 24

Define grievous bodily injury and give an example

Answer 24

Grievous bodily injury means harm that is very serious, such as injury to a vital organ eg the stopping of the victims breath must be done wilfully

Question 25

What was outlined in S72(1) attempting to commit an offence?

Answer 25

(1) Every one who having 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 26

What is the case law regarding intent in S72(1) attempting to commit an offence?

Answer 26

R V MURPHY: When proving an attempt to commit an offence it must be shown that the accused’s intention as to commit the substantive offence. Eg in a case of attempted murder it is necessary for the crown to establish an actual intent to kill

Question 27

What was held in R V HARPUR acts together may constitute an attempt?

Answer 27

R V HARPUR: The court may have regard to the conduct viewed cumulatively up to the point when the conduct in question stops. the defendants conduct may be viewed in its entirety. Considering how much remains to be done is always relevant, though not determinative

Question 28

In relation to an attempt what questions must be asked in determining the point at which an act of mere preparation may become an attempt?

Answer 28

• 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 offence itself

Question 29

MC - Who makes the decision on proximity?

Answer 29

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

Question 30

What are the 3 differences between S174, counselling or attempting to procure murder, and S175, conspiracy to murder?

Answer 30

1. S174 applies where murder is not in fact committed
2. S175 may apply regardless of whether murder is committed or not
3. S175 may include murder outside NZ (if it would amount to murder in NZ)

Question 31

What are the ingredients to S176 accessory after the fact to murder?

Answer 31

• Knowing any person to be party to an offence (murder)
• Receives, comforts, or assists that person OR
• Tampers with or actively supresses any evidence
• In order to enable him to escape after arrest OR
• Avoid arrest or conviction

Question 32

What was held in R V MANE in relation to accessory after the fact of murder?

Answer 32

R V MANE: 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 33

What is the definition of voluntary manslaughter?

Answer 33

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 34

What is the definition of involuntary manslaughter?

Answer 34

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 cause grievous bodily harm

Question 35

DPP V NEWBURY & JONES outlines a four point test for proving unlawful act for manslaughter.

Answer 35

1. The defendant must intentionally do the act
2. The act must be unlawful
3. The act must be dangerous
4. The act must cause death

Question 36

MC - A person is criminally responsible for omitting to discharge or perform a legal duty or performing an unlawful act when?

Answer 36

If in the circumstances, the omission or unlawful act is a major departure from the standard of care expected of a reasonable person to whom that legal duty applies or who performs that unlawful act

Question 37

Infanticide is the third major charge in relation to culpable homicide. Provisions for this offence are set out in S178(1) which states what?

Answer 37

(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 38

MC In a matter of infanticide who will decide on the mother’s state of mind?

Answer 38

The jury to decide on the mother’s state of mind

Question 39

Outline the duties of a parent or guardian in relation to S152(1)

Answer 39

(1) 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 legal duty-
(a) To provide that child with necessaries AND
(b) To take reasonable steps to protect that child from injury

Question 40

S168(1)(a) refers to GBH. What does this mean and give an example of such an injury>

Answer 40

GBH means harm that is really serious. Eg injury to a vital organ

Question 41

Simester and Brookbanks suggest questions should be asked in determining the point at which an act of mere preparation may become an attempt. What are the questions?

Answer 41

• Has the offender done anything more than getting himself into a position from which he could embark on an actual attempt
• Has the offender actually commenced execution; that is to say, has he taken a step in the actual offence

Question 42

Outline S18(1)(a) and (b) in relation to hearsay evidence

Answer 42

(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 maker of the statement were required to be a witness

Question 43

What does R V CLANCY state in relation to proof of age?

Answer 43

R V CLANCY: The best evidence as to the date and place of a child’s birth will normally be provided by a person attending 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 44

Define Automatism

Answer 44

Automatism can be best described as a state of total blackout, during which a person is not conscious of their actions and not in control of them

Question 45

What are the differences between sane and insane automatism?

Answer 45

• Sane automatism is the result of sleepwalking, a blow to the head or effects of drugs
• Insane automatism is the result of a mental disease

Question 46

In the past intoxication was considered to be no defence to a criminal charge and, indeed, an aggravating rather than a mitigating factor. Give 3 examples of how intoxication may be a defence to the commission of an offence?

Answer 46

• Where intoxication causes a disease of the mind so as to bring S23 CA61 (insanity) 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 intoxication causes a state of automatism (complete acquittal)

Question 47

What is the general view in NZ of entrapment?

Answer 47

In general the courts have rejected entrapment as a defence, preferring instead to rely o n the discretion of the trial judge to exclude evidence that would operate unfairly against the defendant

Question 48

How does Chambers 20th Century Dictionary define alibi?

Answer 48

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

Question 49

What does R V BLAUE state and explain the case?

Answer 49

R V BLAUE: Those who use violence must take their victims as they find them.
The victim, a Jehovah’s Witness, had been stabbed and refused a blood transfusion on religious beliefs. Was warned she would die, persisted in her refusal and died the next day

Question 50

Describe how the subjective and objective test is viewed in S48 CA61 self defence?

Answer 50

The degree of force permitted is tested initially under the following subjective criteria:

• What are the circumstances that the defendant genuinely believes exist (whether or not it is a mistaken belief)
• Do you accept that the defendant genuinely believes those facts?
• Is the force used reasonable in the circumstances believed to exist?

Question 51

What does S48, self defence, state?

Answer 51

Every one is justified in using, in the defence of himself or another, such force as is, in the circumstances as he believes them to be, it is reasonable to use

Question 52

Define S180(3) Suicide Pact

Answer 52

S180(3) 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 53

What conditions must be met before a statement from a dangerously ill person may be given in evidence?

Answer 53

A statement from a dangerously ill person can be presented as evidence to court if they are dead at the time of the hearing and reasonable assurance of the statements reliability can be shown

Question 54

What does R V FORREST AND FORREST state?

Answer 54

he best evidence possible in the circumstances is to be adduced by the prosecution in proof of the victims age

Question 55

What is the definition of insanity S23?

Answer 55

(1) Every one shall be presumed to be sane at the time of doing or committing any act until the contrary is proved
(2) 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 at 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 56

What are M’NAGHTEN’S rules

Answer 56

M’NAUGHTEN’S rules are used to establish whether or not a defendant is insane.
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 57

How des R V COTTLE define automatism?

Answer 57

R V COTTLE: Doing something without knowledge of it and without memory afterwards of having done it. A temporary eclipse of consciousness that nevertheless leaves the person as affected able to exercise bodily movements

Question 58

What case law deals with automatism brought about by voluntary intake of alcohol and drugs?

Answer 58

R V LIPMAN: 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 59

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

Answer 59

In NZ the courts are likely to steer the middle ground, allowing a defence of automatism arising out of taking alcohol or 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 60

What case law covers intoxication as a defence?

Answer 60

R V KAMIPELI: It 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

Question 61

Discuss the case law around the use of a pre-emptive strike used during the course of self defence

Answer 61

R V RANGER: If this defendant did really think that the lives of herself and her son were in peril because of the deceased, enraged after a 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 the circumstances.
The defendant stabbed and killed her de facto after they had argued and he had hit her then threatened to kill her and her son. He reached under the bed where he kept his guns at which point the defendant went to the kitchen, got knife, returned to the bedroom abd stabbed him

Question 62

Provide the guidelines in respect of consent

Answer 62

1. Every one has a right to consent to a surgical operation
2. Every one has a right to the infliction of force not involving bodily harm
3. No one has the right to consent to death or injury likely to cause death
4. No one has the right to the infliction of bodily harm in such a manner as to amount to breach of the peace, or in a private 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 63

What is a legal duty?

Answer 63

Legal duty refers to those duties imposed by statute or common law including uncodified common law duties

Question 64

List 3 circumstances in which homicide becomes culpable?

Answer 64

• Death caused by an unlawful act
• Death caused by an omission without lawful excuse to perform or observe a legal duty
• Death caused by both combined
• Death caused by threats, fear of violence or deception
• Death caused by wilfully frightening a child under 16 years or a sick person

Question 65

What are the differences between voluntary and involuntary manslaughter?

Answer 65

Voluntary manslaughter = Intention to kill or cause GBH in circumstances such as a suicide pact make it manslaughter not murder
Involuntary manslaughter = No intention to kill or cause GBH. A result of an unlawful act or gross negligence

Question 66

Outline the ingredients of S152 duty of parent or guardian to provide and protect from injury

Answer 66

(1) 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 the necessaries and
(b) To take reasonable steps to protect that child from injury

Question 67

Outline the ingredients of S154 abandoning child under 6

Answer 67

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

Question 68

What does S180(2) state about suicide pacts?

Answer 68

(2) Where 2 or more persons enter into a suicide pact, and in pursuance of it one or more of them kills himself, any survivor is guilty of being a party to a death under a suicide pact contrary to this subsection and is liable to imprisonment for a term not exceeding 5 years; but he shall not be convicted of an offence against S179 of this act

Question 69

Define S179 aiding and abetting suicide

Answer 69

Every one is liable to imprisonment for a term not exceeding 14 years who -

(a) Incites, counsels, or procures any person to commit suicide, if the person commits or attempts to commit suicide in consequence thereof or
(b) Aids or abets any person in the commission of suicide

Question 70

Discuss the criminal liability for children as set out in S21 children under 10 and S22 children between 10 and 14

Answer 70

S21(1) No person shall be convicted of an offence by reason of any act done or omitted by him when under the age of 10 years
S22(1) No person shall be convicted of an offence by reason of any act done or omitted by him when of the age of 10 but under the age of 14 years, unless he knew either that the act or omission was wrong or that it was contrary to law

Question 71

What is meant by a strict liability?

Answer 71

A strict liability means that no mens rea need be proved by the prosecution eg driving with excess breath alcohol

Question 72

What circumstances must exist to enable the accused to use a defence of compulsion?

Answer 72

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 GBH. The defendant must have genuinely believed the threats and must not be a party to any association or conspiracy involved in carrying out the threats