General knowledge

Question 1

What is Homicide?

Answer 1

Homicide is the killing of one human being by another, directly or indirectly, by any means whatsoever. Before it becomes a criminal charge, it must be proved that the killing was blameworthy or culpable.

Question 2

Critical factors to consider for a charge of murder are:

Answer 2

If the offender intended to:
- Kill the person, or
- Cause bodily injury that the offender knew was likely to cause death

(were their actions intentional or deliberate)

(if neither of these can be proven, the most likely charge is manslaughter)

Question 3

What is manslaughter?

Answer 3

You can charge an offender with manslaughter in any case where a person has been killed in a manner that does not amount to murder. As the burden of proof regarding intent rests with the prosecution, a jury may return a verdict of manslaughter if it feels intent or any other elements of murder has not been proved. Survivor of a suicide pact is liable to be charged with manslaughter only.

Question 4

Homicide must be culpable to be an offence however:

Answer 4

• Manslaughter; an organisation can be convicted as a party to the offence s66(1)
• Murder, an organisation cannot be convicted as either a principle offender or party to the offence. This is because the offence carries a mandatory life sentence.

Question 5

Culpable homicide s160(1) & 2 CA

Answer 5

1) Homicide may be either culpable or not
2a) by an unlawful act; or
b) by an omission without lawful excuse to perform or observe any legal duty; or b
c) by both combined; or
d) by causing that person by threats or fear of violence, or by deception, to do an act which cause his death

Question 6

Voluntary manslaughter

Answer 6

Mitigating circumstances, such as suicide pact, reduce what would otherwise be murder to manslaughter, even though the defendant may have intended to kill or cause GBH.

Question 7

Involuntary manslaughter

Answer 7

Unlawful killing in which death is caused by an unlawful act or gross negligence. No intention to kill or cause GBH.

Manslaughter includes culpable homicide that;
- does not come within s167 and s168
- comes under s167 or s168 but is reduced to manslaughter because the killing was part of a suicide pact as defined in s180(3) of CA.

Question 8

Killing in a sudden fight

Answer 8

• self defence or the requisit mens rea for a murder charge

Crucial to consider these to decide in which way killing should be viewed:
- self defence s48- verdict is acquittal
- the fact there was a fight negates that the defendant had the required mens rea to
Bring a charge of murder within s167 the proper verdict is manslaughter

Question 9

S160(2) manslaughter by unlawful act

Answer 9

4 point test for proving unlawful act for manslaughter-
- Intentionally do an act
- the act must be unlawful
- act must be dangerous
- act must cause death

Question 10

Manslaughter by negligence

Answer 10

• eg in charge of train, ships, machinery, vehicles, mines or weapons, or while administering medical or surgical treatment

Question 11

Wilfully frightening

Answer 11

is regarded as “intending to frighten” or at least be reckless to this

Question 12

“A year and a day” s162 CA

Answer 12

death must be within a year and a day
1) no one is responsible for the killing of another unless the death takes place within a year and a day after the cause of death
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
3) where the cause of death was an omission to fulfil the legal duty, the period shall be reckoned inclusive of the day on which such omission ceased
4) where death is in part caused by an unlawful act an in part by an omission, the period shall be reckoned inclusive of the day the last unlawful act took place or the omission ceased whichever happened last

Question 13

s163 CA

Answer 13

No one is criminally responsible fort he killing of another by an influence on the mind alone, except by wilfully frightening a child under the age of 16yrs or a sick person, nor the killing of another by any disorder or disease arising from such influence, except wilfully frightening any such child as aforesaid or sick person.

Question 15

A question of law relating to whether the condition is a disease of the mind is answered by-

Answer 15

Judge

Question 16

What the accused state of mind was at the time of the offence is question decided by:

Answer 16

Jury

Question 17

Burden of proof for insanity:

Answer 17

Accused is not required to prove the defence of insanity beyond reasonable doubt, but to the satisfaction of the jury on the balance of probabilities

Question 18

R V Cottle

Answer 18

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 19

MNaghtens rules

Answer 19

Frequently used to establish whether or not defendant is insane. It is based on 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 the mind that they did not know:

• the nature and quality of their actions: or
• that what they were doing was wrong

Question 20

In general no one is criminally responsible for the killing of another by any influence of the mind. Except:

Answer 20

• wilfully frightening a child under 16yrs of age
• wilfully frightening a sick person (mentally or physically)

Question 21

What 3 points must be satisfied before a defence of compulsion can be used:

Answer 21

• they have been compelled to commit the offence by someone at the scene who had threatened them that they would otherwise be killed or cause GBH
• the defendant must have generally believed the threats and must not be a part to any association or conspiracy in carrying out the threats
• the threats of death GBH must be immediate and from a person present at the time

Question 22

What is meant by justified:

Answer 22

Some acts are justified even when they result in death. S2 provides when an act is justified the perpetrator is exempt from both criminal and civil liability. Eg
- homicide committed in self defence s48
- homicide committed to prevent suicide of commission of an offence which would likely cause immediate and serious injury to the person or property of anyone

Question 23

Entrapment:

Answer 23

When and agent of enforcement body deliberately causes a person to commit and offence so that person can be prosecuted. Nz courts have rejected entrapment as a defence, preferring to instead rely on the discretion of the trial judge to exclude evidence that would operate unfairly against the accused.

Question 24

S48 self defence or defence of another

Answer 24

Everyone is liable 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 25

S48 self defence or defence of another subjective and objective test

Answer 25

Sub- accused deciding that the use of force was required in the circumstances as they were known to them Ob- was the force reasonable as to the degree and manner it was used in the circumstances

Question 26

Degree of force self defence- degree of force permitted is tested initially under following criteria: the

Answer 26

- what are the circumstances that the defendant genuinely belive exists - did the defendant genuinely believe those facts - is the force used reasonable in the circumstances as they existed

Question 27

Automatism

Answer 27

A state of total blackout, during which a person is not conscious of their actions and not in control of them Sane- sleepwalking, a blow to the head of the effect of drugs Insane- the result of metal disease

Question 28

Nz courts dealing with a defence of automatism arising out of alcohol and drugs

Answer 28

Steer a middle course, allowing a defence of automatism arising out of taking alcohol or drugs ti offences of basic intent only. They are likely to disallow the defence where the state of mind is obviously self induced, the person blameworthy and the consequences could have been expected

Question 29

R V Lipman

Answer 29

Where automatism is brought about by a voluntary intake of alcohol or drugs, the court may be reluctant to that the actions were involuntary or that the offender lacked intention

Question 30

Intoxication

Answer 30

Most offences under CA requires a general intent (mens rea) merely that because of their drunkness state they did not have the proper state of mind to be guilty- The defence of intoxication will be available to the defence to establish that the defendant did not have the required intent to carry out the offence

Question 31

General rules regarding intoxication

Answer 31

In the past it has been no defence to a criminal charge and indeed an aggravating rather then mitigating factor. Intoxication may be a defence to the commission of an offence - where intoxication causes a disease off the mind so as to bring s23 of the CA (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 the intoxication causes a state of automatism (complete ecquital)

Question 32

Alibi

Answer 32

Written notice of alibi is to be given by the defendant within 10 working days after the defendant is given notice under s20 of the criminal disclosure act 2008. Notice of alibi pursuant to s22(3)(a) of criminal disclosure act 2008, notice under sub section (1) Must include name and address of the witness or if the name and address is not known to the defendant when the notice id given any matter by the defendant that might be material assistance in finding that witness

Question 33

Alibi definition

Answer 33

Is the plea in a criminal charge of having been elsewhere at the material time “the fact of being elsewhere”

Question 34

S25 of CA61 - ignorance of law

Answer 34

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

Question 35

Procedure when alibi witness interviewed;

Answer 35

OC should not interview unless the prosecutor requests them to do so; - advise defence counsel of proposed interview and give them a reasonable opportunity to be present - if the accused is not represented, endeavour to ensure witness is interviewed in the presence of some independent person not being a member of the police - make a copy of a witness signed statement taken at any such interview available to defence and prosecutions - any information that reflects on the credibility of the alibi witness can be withheld under s16(1)(o)

Question 36

If defendant calls expert witness during proceedings what must they disclose to prosecutions?

Answer 36

- any brief of evidence to be given or any report provided by that witness or - if these are not available a summary of evidence to be given and the conclusions of any report provided, -this info 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

Question 37

Legal duties of a parent/guardian s152 of CA

Answer 37

A) to provide that child with necessaries and B) to take reasonable steps to protect that child from injury

Question 38

Define legal duty/

Answer 38

Refers to those duties imposed by statue or common law including uncodified law duties

Question 39

s154 abandoning a child under 6yrs

Answer 39

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

Question 41

culpability for children under 10 and children 10-13yrs

Answer 41

Under 10- a child ages 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- it must be shown that the child knew their act was wrong or contrary to the law. If this knowledge cannot be shown the child cannot be criminally liable for the offence

Question 42

s181CA concealing a dead body of a child)

Answer 42

Everyone is liable for a imprisonment for a term not exceeding 2 years who - disposes of the dead body of any child in any matter - with intent to conceal the fact of its birth, whether the child died before or during or after birth

Question 43

S159(1) & (2) defines when Child becomes a human being therefore able to be murdered under s158

Answer 43

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 a child is homicide if it dies in consequence of injuries received before or during or after birth

Question 44

Provide the guidelines in respect of consent regarding assault-

Answer 44

- everyone has the right to consent to surgical operation - everyone has the right to consent to the infliction of force not involving bodily harm - None has the right to consent to their death or injury likely to cause death -

Question 45

A hearsay statement is admissible in any proceedings if-

Answer 45

A) the circumstances relating to the statement provide reasonable assurances 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 unde expense or delay would be caused if the maker of the statement were required to be a witness