Short answers Flashcards
Define homicide (S158) CA61
- Homicide is the killing of a human being by another, directly or indirectly, by any means whatsoever.
- It must be culpable to be an offence.
- MURRAY WRIGHT LTD “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.”
What is an unlawful act?
- Means a breach of any Act, regulation, rule, or bylaw.
- R V MYATT
R V MYATT – Unlawful act in respect of S160(2)(a)
(Before a breach of any act, regulation or by law 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 whom he was one.
Define attempts S72(1) CA61
- 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
Outline culpable homicide S160 (1) & (2)
- Homicide maybe either culpable or not culpable
- Homicide is culpable when it consists in the killing of any person:
- By an unlawful act OR
- By an omission without lawful excuse to perform or observe any legal duty OR
- By both combined OR
- By causing that person by threats of fear or violence, or by deception to do an act which causes his death OR
- By wilfully frightening a child under the age of 16 years or a sick person
Explain S160(2)(b) – omission to perform a legal duty
This covers cases where nothing is done where 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”.
R V HORRY
Death should be provable by such circumstances as render it morally certain and leaves no ground for reasonable doubt, that the circumstantial evidence should be so cogent and compelling, as to convince a jury that upon no rational, other than murder can the fact be accounted for.
R V HARNEY
Recklessness involves the conscious and deliberate taking of an unjustified risk. In NZ in involves proof
that the consequences complained of could well happen, together with an intention to continue the
course of conduct regardless of the risk
Define voluntary manslaughter.
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 GBH.
What is involuntary manslaughter?
- Involuntary manslaughter covers the types of unlawful killings 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 GBH
Difference between voluntary and involuntary manslaughter?
- Voluntary manslaughter can include cases where there is an intention to kill or to cause GBH on the part of the defendant. This can include culpable homicide that comes within S167 or 168, but is
reduced to manslaughter due to a suicide pact under S180 (3). - Involuntary manslaughter includes cases where there is no intention to kill or cause GBH but death is caused by an unlawful act or gross negligence. This includes culpable homicide that does not come
within S167 or 168.
S152 - Duty of a parent or guardian
- Everyone who is a parent or person in place of a parent, who has actual care or charge of a child under the age 18 is under a legal duty to:
- Provide that child with the necessities and
- Take reasonable steps to protect that child from injury
S154 – Abandoning a child under 6
- Everyone is liable to imprisonment not exceeding 7 years
- Unlawfully
- Abandons or exposes
- Any child under age of 6
Outline the culpability for children under 10 and children 10 – 13:
- Under 10:
- A child under 10 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 – 13:
- For children 10 – 13 inclusive, it must be shown that the child knew that their act was wrong or contrary to the law. This is in addition to the mens rea and actus reus requirements.
- If this knowledge cannot be shown, the child cannot be held criminally liable for the offence.
Define insanity by completing the sentence: (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 as to render him incapable:
- Of understanding the nature and quality of the act or omission OR
- Of knowing that the act or omission was morally wrong, having regard to the commonly
accepted standards of right and wrong
The M’Naghten rules are frequently used to establish whether or not the 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 any quality of their actions OR
- That what they were doing was wrong
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 disease of the mind. Hence it is necessary to distinguish the difference between:
- Sane automatism – the result of somnambulism (sleep walking), a blow to the head or effects of drugs
- Insane automatism – the result of a mental disease
How NZ courts deal with a defence of automatism arising out of taking alcohol and/or drugs.
- There is no need to work out which offence has a specific, as against a basic, intent as the English cases require. New Zealand has adopted the principle that self-induced intoxication can lead to a defence of automatism, if the evidence is sufficiently strong to support the defence.
- 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.
General rules regarding intoxication defence.
Intoxication may be a defence:
- Where intoxication causes the disease of the mind so as to bring S23 CA61 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)
R V COTTLE states: (Automatism)
Doing something without knowledge of it and without memory afterwards of having don’t it – a temporary eclipse of consciousness that nevertheless leaves the person so affected able to exercise bodily movements
R V COTTLE (Burden of Proof – insanity)
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.
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.
What is a strict liability offence?
- Strict liability offence means that no mens rea need to be proved by the prosecution
- E.g. EBA the defence must establish a defence to the balance of probabilities and the only way a
defendant can escape liability for such an offence is to prove a total absence of fault
What three points must by satisfied before a defence of compulsion can be used
- The defendant was confronted by an immediate threat of death/GBH by a person present at the time AND
- The defendant must have genuinely believed the threats AND
- The defendant must not be party to any association or conspiracy involved in carrying out the threats
Compulsion – Defendant B claims compulsion as a lookout for an agg rob/murder, is this a valid defence?
- No, as threats of immediate death of GBH are not made by a person who is ‘present’. i.e lookout is not compelled as is away being ‘lookout’.
- R V JOYCE “The Court of Appeal decided that the compulsion must be made by a person who is present when the offence is committed.”
Degree of force permitted for self-defence under what subjective criteria?
- What are the circumstances that the defendant genuinely believes exist? (whether or not mistaken)
- Do you accept that the defendant genuinely believes those facts?
- Is the force used reasonable in the circumstances believed to exist?
Circumstances where culpable homicide have been supported in criminal law:
- Committing arson
- Giving a child excessive amount of alcohol to drink
- Placing hot cinders and straw on a drunk person to frighten them
- Supplying heroin to the deceased
- Throwing concrete from a motorway bridge into an approaching car
- Conducting an illegal abortion
Define alibi S22 EA06:
An alibi is the plea in a criminal charge of having been elsewhere at the material time; the fact of being elsewhere.
- Notice of alibi: This must be given within 10 working days after the defendant is given notice under S20 and must include the name and address of the witness or, if not known to the defendant when the notice is given and matter known by the defendant that might be of material assistance in finding that witness.
What is the procedure when an alibi witness is interviewed?
The OC case should not interview an alibi witness an unless the prosecutor requests them to do so, and if so:
- Advise 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 who is not Police
o Make a copy of a witness signed statement taken at any such interview available to defence counsel through prosecutor. Any info that reflects on the credibility of the alibi witness can
be held 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 are to be provided
- This info must be disclosed at least 14 DAYS BEFORE the date fixed for the Defendant’s hearing or trial, or within an further time that the court may allow under S23(1).
When does a child become a human under S159(1) & 159(2) and therefore able to be murdered under S158?
S159(1):
- A child becomes a human bring with the meaning of this act when it has completely
proceeded in a living state from the body of tis mother, whether it has breathed or not,
whether it has an independent circulation or not, and whether the navel string is severed or not.
- S159(2):
- The killing of such a child is homicide, if it dies in consequence of injuries received before, during, or after birth.
To establish proof of death in relation to homicide you must prove three key elements.
- 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
Definition of ‘year and a day’ outlined in S162(2)
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.
S168 (1)(a) refers to GBH. What does it mean and given an example:
GBH means harm that is very serious. (DPP V SMITH relates) E.g An injury to a vital organ.
Test for proximity: Simester and Brookbanks
- 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.
R V MANE: (AATF – Murder)
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.
Ingredients for infanticide S178 – 3 years max imp:
- Where a woman causes the death of any child of hers under 10 yo 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
- The effect of lactation OR
- Any disorder consequent upon childbirth or lactation
- To such an extent that she could not be held fully responsible
- She is guilty of infanticide and not murder or manslaughter
R V BLAUE (Preventable death)
- Those who use violence must take their victim’s as they find them
- E.g stabbing person who dies after refusing blood transfusion is still responsible for the death, despite
the victim refusing the blood transfusion.
Hearsay statement is admissible in any proceeding if:
The circumstances relating to the statement provide reasonable assurance that the statement is reliable and either:
- The maker of the statement is unavailable as a witness OR
- The judge considers that undue expense and delay would be caused if the maker of the statement were required to be a witness.
Meaning of ‘justified’ in section 2
- In relation to any person means not guilty of an offence and is not liable civilly
- E.g Homicide committed in self-defence (S48) OR
- 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 or anyone (S41)
R V CLANCY states: (Date of birth)
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.
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.
Courts view of defence of entrapment:
NZ court 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.
R V LAVELLE – NZ rejecting defence of entrapment
“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.
Ingredients of S48 CA61:
Everyone is justified in using, in the defence of himself or another, such for as, in the circumstances as he believes them to be, it is reasonable to use
Subjective and objective test relating to S48
Once the accused has decided that the use of force was required (a subjective view of the circumstances as the accused believed them) S48 then introduces a test of reasonableness which involves an objective view as to the degree and manner of the force used.
Legal duty:
The expression legal duty refers to those duties imposed by statute or common law, including uncodified common law duties
List 4 legal duties in respect of CA61:
- Provide the necessities of life and protect from injury (151)
- Provide necessities and protect from injury to your charges when you are a parent or guardian (152)
- Provide necessities as an employer (153)
- Use reasonable knowledge and skill when performing dangerous acts, such as surgery (155)
- Take precautions when in charge of dangerous things, such as machinery (156)
- Avoid omissions that will endanger life (157)
R V TOMARS – Threats, fear of violence and deception:
Formulates the issues in the following way
- Was the deceased threatened by, in fear of, or deceived by the accused?
- If they were, did such threats, fear or deception cause the deceased to do the act that caused their death?
- Was the act a natural consequence of the actions of the defendant, in the sense that
reasonable and responsible people in the defendant’s position at the time could reasonably have foreseen the consequences?
- Did these foreseeable actions of the victim contribute in a [significant] way to his death?
In relation to S160(2)(d), give two practical examples of culpable homicide, which has been caused by the victim’s actions, prompted by threats of 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
- While being assaulted and believing their life is in danger, jumps from a train and dies
S163 Killing by influence of the mind:
- No one is criminally liable for the killing of another by any influence on the mind alone, except by wilfully frightening a child under the age of 16 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
Required state of mind for S167(b)
S167 – 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 anyone
Why is attempted murder one of the most difficult offences to prove?
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”.
Difference between counselling or attempting to procure murder (S174) and conspiracy to murder (S175)?
- Counselling or attempt to procure murder requires that the offence is to be committed in NZ, whereas with conspiracy, the murder can take place in NZ 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.
Ingredients to AATF to murder (S176):
- Knowing any person to have been party to murder
- Receives, comforts or assists that person OR
- Tampers with or actively suppresses any evidence against that person in order to help him escape after arrest OR
- To avoid arrest or conviction
Ingredients of infanticide:
- Where a woman cause the death of any child of hers under the age of 10 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 child birth of lactation, to such an extent that she should not be held fully responsible
- She is guilty of infanticide and not murder or manslaughter and is liable to a term of imprisonment not exceeding 3 years.
Suicide pact S180(2) ingredients:
**In relation to a suicide pact, if both enter into a suicide pact and commit the act on themselves, the surviving party is liable to be party to death under a suicide pact; NOT manslaughter.
- 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 section 179 of this Act.
Suicide pact S180(3) ingredients:
- A common agreement between two 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 by treated as done by him in pursuance of the pact unless it is done while he has settled intention of dying pursuance of the pact.
Culpability of parties involved in a suicide pact:
- If a person enters a suicide pact and has no intention of killing himself e.g euthanasia; aiding/abetting suicide (S179) – 14 years
- Any person who enters suicide pact with another person and performs act that kills other party and survives 1X attempt – manslaughter (S180(1)) – 14 years imprisonment; NOT MURDER, even if intent
is to kill other party. - If parties enter suicide pact and administer/perform act to kill themselves, then the surviving party is liable to party to death under suicide pact (S180(2)) – 5 years
Discuss Forrest & Forrest and outline the case law:
- Two men charged with having sexual intercourse with a 14 year old who had run away from Child welfare custody. At the trial the girl produced her birth certificate and gave evidence that she as 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 - R V FORREST & FORREST “the best evidence possible in the circumstances should be adduced by the prosecution in proof of the victim’s age”
Pre-emptive strike – R V RANGER
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 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.
Identify 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.
Can an organisation be convicted of murder or manslaughter?
- No because the killing must be done by a human being, an organisation cannot be convicted as the principal offender.
- Moreover, although an organisation can be convicted as a party to manslaughter, with murder an organisation cannot be convicted as either the principal offender or a party to the offence, because it
is not possible for an organisation to serve the offence’s mandatory life sentence.
R V PIRI – Recklessness
“Recklessness [here] involves a conscious, deliberate risk taking. The degree of risk of death foreseen by the accused under either s167(b) or (d) must be more than negligible or remote. The accused must
recognise a “real or substantial risk” that death would be caused.
R V DESMOND – Killing in pursuit of an unlawful object
“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 death”
Admissibility of hearsay statements S18(1) EA06:
- (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.
Killing in a sudden fight; what must you consider?
- Whether there was self-defence
- Whether there was the requisite mens rea for the murder charge
- If the homicide can be justified as having arisen out of self-defence (s48) the proper verdict is an acquittal.
- If the fact there was a fight negates that the defendant had the required mens rea to bring a charge of murder within section 167, the proper verdict is manslaughter.
The Defendant’s culpability when a person dies following the withdrawal from life support?
When a person deliberately injures another person and the person dies as a result of treatment of those injuries, the person who inflicted the initial injuries is responsible for the person’s death. The degree of liability relies on the element of mens rea.
- When treatment is sought for an injury and the injured person dies, the person who caused the original injury is liable for the death, even if the person died as a result of improper treatment, so long
as the treatment was done in good faith. - Liability for medical practitioners must be considered.
- In R v TAREI “The withdrawal of any form of life support system is not “treatment” under s166 CA61. To withdraw life support does not cause death but removes the possibility of extending the person’s life through artificial means.
S181 CA61 ingredients
- Everyone
- Disposes of a dead body of any child
- In any manner with intent to conceal the fact of its birth
- Whether the child died before, during after birth
Concealing dead body of a child (S181). Girl gives birth to child who dies shortly after. She hides the dead baby so nobody knows she was pregnant. What is her liability?
- Liable to concealing dead body of a child (S181) – 2 years
- Must prove:
– Baby was dead before concealing
– Intent to concealing the fact of birth. Even if only to conceal from certain people (f others
already know) - If child alive when disposed of, mother maybe liable to manslaughter/murder/infanticide
What can you do with a child under 10 who has committed a serious sexual offence?
Refer to OT as unable to convict person who committed crime under 10.
R V CODERE states? – physical character of the act
The nature and quality of the act means the physical character of the act. The phrase does not involve any consideration of the accused’s moral perception nor his knowledge of the moral quality of the
act. Thus a person who is so deluded that he cuts a woman’s throat believing that he is cutting a loaf of bread would not know the nature and quality of his act.
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
