HOMICIDE & DEFENCES

Question 1

What are the critical factors to consider for a charge of murder?

Answer 1

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

If neither, then the charge is Manslaughter

Question 2

What are examples of Manslaughter?

Answer 2

Failing to perform a legal duty (getting an ill or injured person medical treatment)

Acting unlawfully but didn’t foresee the possibility of death (driving intoxicated or incapable and killing someone)

Question 3

What is blameworthy?

Answer 3

Responsible of wrongdoing and deserving of blame

Question 4

What is culpable?

Answer 4

Deserving blame or at fault

Homicide must be culpable to be an offence

Question 5

How do you ascertain whether a murder offence has been committed?

Answer 5

A person dies, and
- Their death was caused by another human being, and
- The actions of the other person was culpable, and
- The outcome of their actions were intentional and deliberate

An organisation can be convicted as a party to manslaughter, but cannot be convicted as a principal offender or party to a murder offence, because it is not possible for an organisation to serve the mandatory life sentence

Question 6

How do you ascertain whether a manslaughter offence has been committed?

Answer 6

A person dies, and
Their death was caused by another human being, and
The actions of the other person was culpable, BUT
The outcome of their actions were NOT intentional and deliberate

An organisation can be convicted as a party to a Manslaughter offence s66(1) CA 1961

Question 7

Murray Wright Ltd

Answer 7

Killing must be done by a human being. An organisation(Hospital or food company) cannot be convicted as a principal offender

Question 8

What is the critical distinction between murder and manslaughter?

Answer 8

Whether the offender intended to kill the deceased or to harm them in a way they knew might result in death

Question 9

Define Homicide

Answer 9

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

Question 10

Killing of a Child s159

Answer 10

A child becomes a human being when it has completely proceeded in a living state from the body of its mother (breathing or not, independent circulation or not, naval string severed or not)

Killing is homicide if the child dies as consequences of injuries received before/ during/ after birth

Question 11

What is culpable homicide s160?

Answer 11

Means the killing is blameworthy. It includes murder, manslaughter or infanticide

Question 12

Ingredients of culpable homicide s160

Answer 12

(1) May be culpable or not. If not then not an offence

(2) Culpable homicide consists of killing a person by:
- (a) By an unlawful act, or
- (b) By an omission without lawful excuse to not perform or observe legal duty, or
- (c) By both of above, or
- (d) By causing that person by threats, fear, violence, deception, to do an act which causes death, or
- (e) By wilfully frightening a child under 16 or a sick person

(3) Except as provided in s178, culpable homicide is either murder or manslaughter

Question 13

Define Unlawful Act s160(2)(a)

Answer 13

A breach of any act, regulation, rule, or bylaw

Question 14

R v Myatt

Answer 14

Before it is an unlawful act, it must be an act likely to do harm to the deceased or to some class of persons of whom he was one

Question 15

What is an example of unlawful act that would not constitute as culpable homicide?

Answer 15

Breach of an electoral role as it is not an act likely to do harm to the deceased

Question 16

R v Lee

Answer 16

The act must be objectively dangerous

Question 17

What is s150A?

Answer 17

Any case where the unlawful act requires proof of negligence, or is a strict or absolute liability offence

Question 18

What are examples of culpable homicide?

Answer 18

When the offender has caused death by:
- committing arson
- giving excessive amount of alcohol to a child to drink
- placing hot cinders and straw on a drunk person
- supplying heroin to a person and they overdose
- throwing concrete from an overpass onto a moving car below
- conducting illegal abortion and the mother dies

Question 19

Killing of person by omission to perform legal duty s160(2)(b)

Answer 19

Duties imposed by statute or common law

Death would not have occurred if and when it did had the defendant performed the duty in question. It must be a substantial and operative cause of death

Question 20

What are examples of duties imposed by statute or common law?

Answer 20

Provide necessaries and protect
- from injury (s151)
- as a parent or guardian (s152)
- as an employer (s153)

Use reasonable knowledge and skill when performing dangerous acts such as surgery (s155)

Take precautions when in charge of dangerous things such as machinery (s156)

Avoid omissions that will endanger life (s157)

Question 21

Killing of person by unlawful acts and omission of duty s160(2)(c)

Answer 21

Sometimes both are applicable to the same act. For example - Driving recklessly that you kill a pedestrian is unlawful, and an omission of duty to take precautions when you are in charge of a dangerous thing (car)

Question 22

Killing of person by threats, fear of violence and deception s160(2)(d)

Answer 22

A person is guilty of culpable murder if they caused the victim to do an act, out of threats, fear of violence or deception, that resulted in their death

Must be well-founded, no need to show deceased’s action was the only means of escape

Question 23

R v Tomars

Answer 23

1. Was the deceased threatened by, in fear of, or deceived by the defendant?
2. If so, did the threats, fear or deception cause the deceased to do an act that resulted in their death?
3. Was the act a natural consequence of the actions of the defendant, in which a reasonable person could have foreseen the outcome?
4. Did the foreseeable actions of the deceased contribute in a significant way to their death?

Question 24

What was identified in R v Corbett in relation to threats, fear of violence and deception?

Answer 24

“the victim’s conduct must be such that it could be reasonable foreseen, is proportionate to the threat, or is within the ambit of reasonableness. Although the victim might do the wrong thing or act unwisely, it is sufficient if the reaction is in the foreseeable range”

Question 25

Examples of culpable homicide caused by actions prompted by threats, fear of violence or deception

Answer 25

• Jumps from window and dies because they think they’re going to be assaulted
• jumps into river to escape attack and drowns
• is assaulted and life is endanger, jumps from a train and is killed

Question 26

Frightening a child or sick person s160(2)(e) What does Simester and Brookbanks suggest?

Answer 26

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

The defendant must be aware of a real risk that the victim is under 16 or sick

Question 27

In relation to frightening a child or sick person, does it need to be a result of a fear of violence?

Answer 27

No, but may be caused by any act that frightens the child or sick person, so long as it is done wilfully

Question 28

s163 Killing by Influence of the Mind

Answer 28

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 29

What is an example of ‘Killing by Influence on the Mind’ s163?

Answer 29

A man took tests at a hospital for an ongoing stomach complaint. “For a joke”, a hospital employee sent him a letter saying he had terminal, inoperable cancer. If the man had, as a consequence, committed suicide, the sender of the letter could be charged

Question 30

Can someone consent to being killed (s63)?

Answer 30

No one has the right to consent to being killed

Question 31

What is the legal view of consent to death?

Answer 31

The law does not recognise the right of a person to consent to their being killed. As a consequence, their consent does not affect the criminal responsibility of anyone else involved in the killing

Question 32

How do you prove death?

Answer 32

You must prove by direct and/ or circumstantial evidence that:
- Death occurred
- Deceased is identified as the person who has been killed
- The killing is culpable

Question 33

What can you be charged with if someone gets killed in a lawful game or contest (eg boxing, wrestling, football, hockey)?

Answer 33

Normally you would not be charged with the killing of another player if they died from injuries you caused. The death of a participant from injuries is normally treated as a non-culpable homicide.

However, if a contestant causes the death of another by an act that is likely to cause serious injury, they will be guilty of manslaughter

Question 34

Is a body required to prove the death of a person?

Answer 34

No, a body is not required to prove death of a person has occurred

Question 35

R v Horry

Answer 35

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

Question 36

Examples of non-culpable homicide

Answer 36

The perpetrator is exempt from both criminal and civil liability. Justified acts that result in death are:
- s48 Self defence
- s41 To prevent suicide or the commission of an offence likely to cause immediate and serious injury to the person or property of anyone

Question 37

If someone is assaulted and they go on life-support, what happens to the offender?

Answer 37

A defendant will not be relieved of responsibility merely because a life support system is withdrawn in good faith

Question 38

Murder defined (s167)

Answer 38

The offender means to:
- Cause the death of the person killed
- Cause any bodily injury that is known to the offender to likely cause death, and is reckless whether death ensures or not
- Cause death or bodily injury to a person, or is reckless to that, but mistakenly kills another person by accident or mistake, though he does not mean to hurt the person killed
- Do an act that he knows will likely cause death, and thereby kills any person, though he may not have desired to hurt anyone

Question 39

Murder further defined (s168)

Answer 39

The offender means or does not mean death to ensue, or knows or does not know that death is likely to ensure:
- Cause GBH in the purpose of facilitating the commission of any offence, or the flight, or avoiding the detection of the offender upon the commission or attempt, or resisting arrest and death ensues from injury
- Administers an stupefying or overpowering thing and death ensues from the effects
- Wilfully stops the breathing of any person and death ensues

Question 40

Define intent

Answer 40

Doing a deliberate act to get a specific result

Deliberate: More than involuntary or accidental
Specific result: Aim, object, purpose

Question 41

How do you prove intent for murder?

Answer 41

The defendant:
- Intended to cause death, or
- Knew that death was likely to ensue, or
- Was reckless that death would ensue

The Jury decides whether the defendant had such knowledge at the time by drawing inferences from all the circumstances, and from what the offender said and did at the time

If intent is not present the offence is manslaughter, unless it falls within the provisions of infanticide (s178)

Question 42

What is recklessness?

Answer 42

Consciously and deliberately taking an unjustified risk

Subjective test: The defendant was aware of the risk and decided to run that risk anyway

Objective test: It was unreasonable for him to do so

Question 43

R v Cameron

Answer 43

Recklessness is established if:
(a) The defendant recognised that there was a real possibility that:
- his or her actions would bring about a proscribed result, and/ or
- that the proscribed circumstances existed, and

(b) having regard to that risk those actions were unreasonable

Question 44

R v Tipple (Recklessness)

Answer 44

The court suggested as a general rule “recklessness” is to be given the subjective meaning.

The concept is subjective in that it requires that the offender know of, or have a conscious appreciation of the relevant risk, and it may be said that it requires “a deliberate decision to run the risk”

Question 45

R v Piri (Recklessness)

Answer 45

Involves 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 and substantial risk” that death would be caused

Question 46

What do you need to establish to show the defendants state of mind (intent) in Killing in Pursuit of an Unlawful Object s167(d)?

Answer 46

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

Example: Death caused by blowing up a prison wall to liberate prisoners

Question 47

R v Desmond - Killing in Pursuit of an Unlawful Object s167(d)

Answer 47

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

The Jury must decide whether the defendant knew that their actions at the time were likely to cause death

Question 48

What must the Court consider in Killing in Pursuit of an Unlawful Object s167(d)?

Answer 48

Whether the defendant knew the acts were likely to cause death, and
Whether the defendant’s original intent (eg Indecent assault) amounted to an unlawful object

Question 49

Define Parties to Offences (s66)
Murder committed in the execution of a common purpose

Answer 49

2 or more person form a common intention to prosecute any unlawful purpose, and
- to assist each other therein,
- each of them is a party to every offence committed by anyone 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 50

When committing a crime with another person and the other person kills someone, to be held responsible for it, what are the requirements (Joint responsibility)?

Answer 50

You do not need to prove that the secondary party knew that death was a probable consequence of their unlawful activity, just that the secondary party knew it was probable the principal might do an act that would, if death resulted, bring their conduct within the terms of s168

Question 51

What is the punishment for murder (s172)?

Answer 51

(1) Everyone who commits murder is liable to imprisonment for life
(2) Subsection (1) is subject to s102 of the Sentencing Act 2002

Question 52

s102 Presumption in favour of life imprisonment for murder

Answer 52

(1) An offender who is convicted of murder must be sentenced to imprisonment for life unless, given the circumstances of the offence and the offender, a sentence of imprisonment for life would be manifestly (obviously) unjust

(2) If the court does not impose a sentence of imprisonment for life of an offender convicted of murder, it must give written reasons for not doing so

Question 53

Attempting to commit an offence s72(1)

Answer 53

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

An intention to commit the offence will be sufficient

Question 54

R v Murphy (Attempt)

Answer 54

When proving an attempt to commit an offence it must be shown that the accused intention was to commit the substantive offence. For example, in a case of attempted murder an intention to kill must be proved by the Crown

Therefore, this requirement on the Crown means that attempted murder is one of the most difficult offences in the Crimes Act to prove beyond reasonable doubt

Question 55

Define Sufficiently Proximate

Answer 55

To prove an attempt the defendant must have done or omitted to do some act(s) that is/are close to the full offence. The defendant must have started to commit the full offence and have done beyond the phase of mere preparation. This is the “all but” rule

Question 56

R v Harpur (Attempt)

Answer 56

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 considered in its entirety. Considering how much remains to be done, is always relevant, though not determinative

Question 57

What is the test for proximity?

Answer 57

Has the offender got himself into a position from which he could embark on an actual attempt, or has he taken a step in the actual offence?

If “yes” then there has been an attempt as a matter of law

If not, then the conduct is classed as preparation and is not an offence

Question 58

Who decides if the defendant is sufficiently proximate to the full offence?

Answer 58

The Judge because it is a question of law

Question 59

What is the punishment of Attempted Murder?

Answer 59

14 years

Question 60

What are the ingredients for Counselling or Attempting to Procure Murder s174?

Answer 60

Imprisonment not exceeding 10 years who:
- incites
- counsels, or
- attempts
to procure any person to murder any other person in New Zealand, when that murder is not in fact committed

Question 61

When does s174 ‘Counselling or Attempting to Procure Murder’ apply?

Answer 61

When murder is not in fact committed. If the person incited or counselled commits murder, the parties’ provisions of s66(1)(d) will apply to the inciter or counsellor

Where murder is attempted but not in fact committed, an inciter, counsellor or procurer will be liable as a party under s66(1)(d) to an attempt to murder under s173

Question 62

What are the ingredients to Conspiracy to Murder s175?

Answer 62

Imprisonment not exceeding 10 years who
- conspires or
- agrees
with any person to murder any other person, whether the murder is to take place in New Zealand or elsewhere

s175 applies regardless of whether murder is committed or not

Question 63

R v Mane (Accessory after the fact s176)

Answer 63

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 64

What do Associated Murder charges include?

Answer 64

• Attempt to Murder
• Counseling or attempting to procure Murder
• Conspiring to Murder
• Accessory after the fact to Murder

Question 65

What are the two types of Manslaughter?

Answer 65

Voluntary Manslaughter (Intended to kill or cause GBH)
Involuntary Manslaughter (Caused by criminal negligence. No intention to kill or cause GBH)

If homicide arose out of self-defence, the defendant should be acquitted. If it arose out of a suicide pact the charge should be Manslaughter

Question 66

If you make a suicide pact with someone, what would the charge be if you don’t get to kill yourself but the other person does?

Answer 66

Voluntary Manslaughter

Question 67

What does Involuntary Manslaughter cover?

Answer 67

Types of unlawful killing in which the death is caused by an unlawful act or gross negligence.

There has been no intention to kill or cause grievous bodily harm

Question 68

What are some instances where a Manslaughter charge might arise?

Answer 68

• Killing in a sudden fight
• By Unlawful Act
• By Negligence

Question 69

What is the 4 point test for proving an unlawful act for Manslaughter (Newbury and Jones)?

Answer 69

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

Question 70

In Manslaughter by Negligence what do you need to consider?

Answer 70

In many instances the defendant will have been engaged in a dangerous act or in charge of a dangerous thing. You need to follow the standards set out in s155 and s156 to establish what, if any, negligence there has been

Question 71

What are some examples of where Manslaughter by Negligence may arise?

Answer 71

Negligence while in charge of or using trains, factory machinery, mines, motor vehicles, ships, weapons, or while administering medical or surgical treatment

Question 72

What are 3 scenario examples of Manslaughter?

Answer 72

1. Using a dangerous thing riskily or negligently with the consent of the person who died (They agreed to sit on the bonnet while you drove the car)
2. Someone dies in a game or lawful contest and the defendants actions were likely to cause serious injury
3. Contributory negligence, being negligent with someone else and they die

Question 73

What is the ‘Major Departure’ test 150A(2)?

Answer 73

A person is criminally responsible if they fail to perform a legal duty or does an unlawful act, which is a major departure of care expected of a reasonable person, whom that legal duty applies. It is a very high degree of negligence or gross negligence

Question 74

What type of test is it when determining whether a defendant was negligent and whether the negligence was a major departure?

Answer 74

The Objective test.

All the circumstances of the case must be considered and a defendants state of mind may be relevant to whether there was gross negligence. This may be readily found if the defendant knowingly ran a risk or was indifferent to an obvious risk of death

Question 75

What is the Punishment for Manslaughter s177?

Answer 75

Everyone who commits Manslaughter is liable to imprisonment for life

However a Judge, taking all matters into consideration, may impose any penalty from a fine to life imprisonment depending on the circumstances

Question 76

If an offender intends to kill A but inadvertently strikes the fatal blow to B, is the offender still guilty of Murder?

Answer 76

Yes, s167(c) states that if the offender means to cause the death of one person and by mistake or accident kills another, even though he didn’t not mean to hurt the other person, it is still murder

Question 77

When considering what charge to press in a case where someone has been killed in a sudden fight, what issues do you need to consider?

Answer 77

Where there was:
- Self defence
- The requisite Mens Rea for a Murder/ Manslaughter charge

Question 78

What is Infanticide s178?

Answer 78

Where a woman causes 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 childbirth or lactation, to the extent that she should not be held fully responsible,

She is guilty of infanticide, and not of murder or manslaughter

3 years imprisonment

Question 79

In cases of infanticide, what must you establish?

Answer 79

The killing of a child must be in a manner that would amount to culpable homicide. You must also prove the mother’s mind was disturbed as a consequence (includes the period of lactation) of the birth of that child or another child

Question 80

In charges of Infanticide, who decides about the mother’s state of mind?

Answer 80

The Jury

Question 81

If a woman is charged with manslaughter or murder in regards to her baby, what happens if the jury believe the mother’s state of mind was due to the effects of childbirth?

Answer 81

The jury is required to return a special verdict of acquittal on account of insanity caused by childbirth

Question 82

Duty to provide the necessaries and protect from injury s151

Answer 82

Everyone who has actual care or charge of a person who is a vulnerable adult and who is unable to provide himself or herself with necessaries is under a legal duty
- to provide that person with necessaries, and
- to take reasonable steps to protect that person from injury

Question 83

Duty of parent or guardian to provide necessaries and protect from injury s152

Answer 83

Everyone who is a parent, or is a person in place of a parent, who has actual care or charge of a child under the age of 18 years is under a legal duty
- to provide that child with necessaries, and
- to take reasonable steps to protect that child from injury

Question 84

Duty of employers to provide necessaries s153

Answer 84

Everyone who as employer has contracted to provide necessary food, clothing, or lodging for any servant or apprentice under the age of 16 is under legal duty to provide the same, and is criminally responsible for omitting without lawful excuse to perform such duty if the death of that servant or apprentice is caused, or if his life is endangered or his health permanently injured

Question 85

Define vulnerable adult

Answer 85

A person unable, by reason of detention, age, sickness, mental impairment, or any other cause, to withdraw himself or herself from the care or charge of another person

Vulnerability may be short-lived or temporary

Question 86

What are necessaries of life?

Answer 86

Encompasses commodities and services necessary to sustain life, such as food, clothing, housing, warmth and medical care

Question 87

What does a duty to protect from injury mean?

Answer 87

To take reasonable steps to protect a vulnerable adult or child from injury, not only bodily harm caused by other people, but also harm arising from human activities and non-human sources

Question 88

Abandoning Child under 6 (s154)

Answer 88

Liable to imprisonment not exceeding 7 years who unlawfully abandons or exposes any child under the age of 6 years old

Question 89

Duty of persons doing dangerous acts s155

Answer 89

Undertakes (except in case of necessity) to administer surgical, medical treatment or, to do any other lawful act which may be dangerous to life
- Is under a legal duty to use reasonable knowledge, skill, and care in doing any such act, and is criminally responsible for the consequences of omitting without lawful excuse to discharge that duty

Question 90

Duty of persons in charge of dangerous things s156

Answer 90

Everyone who has in his charge or under his control anything whatever, whether animate or inanimate, or who erects, makes, operates, maintains anything, which in the absence of precaution or care, may endanger human life
- Is under a legal duty to take reasonable precautions against and to use reasonable care to avoid such danger, and is criminally responsible for the consequences of omitting without lawful excuse to discharge that duty

Question 91

What is anything whatever?

Answer 91

It includes such things as motor vehicles, trains, animals, ships, weapons, machinery, explosives

Question 92

Duty to avoid omissions dangerous to life s157

Answer 92

Everyone who undertakes to do any act the omission to do which is or may be dangerous to life is under a legal duty to do that act, and is criminally responsible for the consequences of omitting without lawful excuse to discharge that duty

Question 93

What does s163 ‘Encouraging Death’ mean?

Answer 93

Killing someone by influencing their mind. This means that if someone was driven into an extreme anxiety state by work or domestic pressures, but had no previous mental or physical ailment, and committed suicide, the person causing the anxiety would not be culpable for the death

Question 94

Acceleration of death s164

Answer 94

Everyone who by any 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 labouring under some disorder or disease arising from some other cause

Question 95

Causing death that might have been prevented s165

Answer 95

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

Question 96

R v Blaue (Preventable death)

Answer 96

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

• Liability depends on the mens rea, not on the victim’s subsequent actions

Question 97

Causing injury the treatment of which causes death s166

Answer 97

Everyone who causes to another person any bodily injury, in itself of a dangerous nature, from which death results, kills that person, although the immediate cause of death be treatment, proper or improper, applied in good faith

Question 98

What happens if life support is withdrawn on someone that is there as a result of the defendants actions (R v Tarei)?

Answer 98

The withdrawal of any form of life support system is not ‘treatment’. To withdrawal life support does not cause death but removes the possibility of extending the person’s life through artificial means

Question 99

What are the 2 rules that apply in the test to see if an injury was a substantial cause of the death?

Answer 99

• Death resulting from any normal treatment employed to deal with a felonious injury may be regarded as caused by the injury
• In other circumstances, it is a question of fact to establish a causal connection between the death and the felonious injury

Question 100

If an injured person is treated for an injury and dies because of the treatment, when would the defendant get off being charged with murder?

Answer 100

When there is an intervening act that breaks the chain of causation (Novus acus Interviens)

When the treatment given and it was ‘not normal’. For example, giving someone drugs they were allergic to

Question 101

When someone is injured and then dies after receiving treatment, what is the position of New Zealand law in relation to the person who inflicted the injuries?

Answer 101

The injury must remain a substantial cause of the death which grew from the subsequent effects and risks

Question 102

What are some examples of where someone dying after medical treatment did not effect the defendants criminal responsibility?

Answer 102

• A person wounded in a duel and died as a result of the surgical operation. The person who inflicted the wound was guilty of murder
• The person has been severely kicked by the defendant. A surgeon gave her some brandy to restore her, but it went into her lungs causing her death. The court held that this did not affect the defendant’s criminal responsibility
• It was necessary to operate on a person as a result of an assault. The person died under the administration of anesthetic. It was held that this did not affect the defendant’s criminal responsibility

Question 103

Aiding and abetting suicide s179

Answer 103

Not exceeding 14 years
- Incites, counsels, or procures any person to commit suicide, if that person commits or attempts to commit suicide in consequence thereof, or
- Aids or abets any person in the commission of suicide

Question 104

In what circumstance would someone be charged with manslaughter when carrying out a suicide pact?

Answer 104

s180(1) - Person A and person B enter a suicide pact, person A shoots person B before shooting themselves, but person A lives

Person A would be guilty of manslaughter, not murder

Question 105

In what circumstances would someone be liable for party to a death in a suicide pact?

Answer 105

s180(2) - When both are responsible for the actions but only one of them dies.

Person A and person B both self administer a high dosage of morphine and Person A dies as a result of their own actions, but person B survives the overdose.

Person B would be guilty of being a party to a death under a suicide pact and is liable to imprisonment for a term not exceeding 5 years. Person B cannot be convicted of an offence under s179 (Aiding and Abetting)

Question 106

What state does the body need to be in when concealing a childs body?

Answer 106

A child of comparatively recent birth and must be dead when disposed of

• If the child is alive when disposed of, and then dies, it may be murder or manslaughter or in the case of the mother, infanticide

Question 107

When concealing a body of a child what must the intent be?

Answer 107

Concealing the fact of birth even if the birth was known to some people but not others. Thus it will be enough that the intent was to conceal the birth from a particular individual

Question 108

When is a hearsay statement admissible (s18 EA)?

Answer 108

When 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 or delay would be caused if the maker of the statement were required to be a witness

Question 109

What is reasonable assurance in relation to a hearsay statement?

Answer 109

The Court must be satisfied that both the content and the person who made it, are reliable.

Circumstances to consider include:
- The nature of the statement
- The contents of the statement
- The circumstances relating to the making of the statement
- Circumstances relating to the veracity of the person making the statement
- Circumstances relating to the accuracy of the observation of the person

Question 110

Define the word justified

Answer 110

In relation to any person, “justified” means that the person is not guilty of an offence and is not liable civilly

In certain circumstances people who appear to have committed an offence are not able to be held civilly or criminally liable. In these cases a person may offer justification or excuse for their defence

Question 111

Define “protected from criminal liability

Answer 111

“Protected from criminal responsibility” means the person is not guilty of an
offence but civil liability may still arise.

Question 112

What is section 21 CA 1961

Answer 112

Children under 10
- 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.

Question 113

What is section 22 CA 1961

Answer 113

Children between 10 and 14
- 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 114

Attainment of a particular age

Answer 114

For all the purposes of the law of New Zealand the time at which a person attains a particular age expressed in years shall be the commencement of the relevant anniversary of the date of his birth

Question 115

What is an ‘absolute defence’

Answer 115

A child aged under 10 years has an absolute defence to any charge brought against them. Nevertheless, even though the child cannot be convicted, you still have to establish whether or not they are guilty.

Question 116

As well as mens rea and actus reus, what do you need to prove when children between 10 and 13 commit a crime?

Answer 116

That the child knew the act was wrong or was contrary to law, the onus is on prosecutions to prove this

If this knowledge cannot be shown the child cannot be criminally liable for the offence

Question 117

R v Forrest and Forrest (Proof of Age)

Answer 117

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

Question 118

What was held in R v Clancy? (Proof of Age)

Answer 118

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

Question 119

What was held in R v Rapira in relation to the child knowing the act was wrong?

Answer 119

The Court discussed that the child must know that their act was wrong but need not understand that it was seriously wrong

For example: Robbing a house but not establishing that the child knew it was unlawful or wrong to rob the house

Question 120

What is the general rule about child offenders?

Answer 120

All child offenders will be referred to the Care and Protection Co-ordinator until they reach the age of 14 years.

Question 121

If a child between 10-13 years is charged with murder or manslaughter what happens in the court process?

Answer 121

They are usually dealt with under the
youth justice provisions of the Oranga Tamariki Act 1989.
- Charges are filed in the District Court, the first appearance takes place before the Youth Court and the case then automatically transfers to the High Court for trial and sentencing.

The same is for young person over 14 years of age

Question 122

At what age can a child be sentenced to imprisonment and for what category of offence?

Answer 122

• 10-13 can be sentenced to imprisonment for murder and manslaughter (Cat 4)
• 14-16 Imprisonment for murder, manslaughter, cat 4 and cat 3 with max penalty of life or at least 14 years.
• Some 12 and 13 year olds can be prosecuted for certain serious offences if they have history of serious stuff and the offence is punishable by 10-14 years imprisonment

Question 123

Legal definition of insanity

Answer 123

Every one shall be presumed to be sane at the time of doing or omitting 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 as to render him incapable

(a) Of understanding the nature and quality of the act or omission; or

(b) Of knowing that the act or omission was morally wrong, having regard to the commonly accepted standards of right and wrong

(3) Insanity before or after the time when he did or omitted the act, and insane delusions, though only partial, may be evidence that the offender was, at the time when he did or omitted the act, in such a condition of mind as to render him irresponsible for the
act or omission.

Question 124

What was held in R v Green in relation to insanity

Answer 124

The Court in held that insanity is a matter for the defence to raise and the prosecution is prohibited from adducing evidence of insanity even if the accused has sought acquittal because of some state of mind not amounting to insanity

Question 125

What is an option when someone is pleading insanity?

Answer 125

The defendant become a restricted patient if they are a risk to the community

Question 126

If the defendant doesn’t put up an insanity defense can the judge bring it up to the jury as an issue?

Answer 126

Yes but only in exceptional circumstances

Question 127

When a judge decides to make an order that the defendant is to be treated under the mental health act or under the intellectual disability act what must they be satisfied of?

Answer 127

That the offender’s mental impairment requires the compulsory treatment or compulsory care of the offender either in the offender’s interest, or for reasons of public safety

Question 128

If there is strong evidence pointing to the defendants insanity but defence have not used insanity as a defence, what must the Judge do?

Answer 128

The judge must direct the jury’s attention to the defence of insanity as set out in s23 of the Crimes Act 1961.

The judge must do this even if the defence has not put forward the issue of insanity.

In such a situation the judge, in summing up before the jury deliberates its verdict, must notify the jury that if it decides to acquit the defendant it must be specific as to whether this is on the grounds of the defendant’s innocence or their insanity

Question 129

R v Cottle - Burden of Proof

Answer 129

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

Question 130

To what standard must defence prove the defence of insanity?

Answer 130

On the Balance of Probabilities

Question 131

What kind of offence can you put in a plea of insanity for

Answer 131

Any offence punishable by imprisonment

Question 132

R v Clark (insanity)

Answer 132

The decision as to an accused’s insanity is always for the jury and a verdict
inconsistent with medical evidence is not necessarily unreasonable. But where unchallenged medical evidence is supported by the surrounding facts a jury’s verdict must be founded on that evidence which in this case shows that the accused did not and had been unable to know that his act was morally wrong

Question 133

What are M’Naghtens Rules?

Answer 133

It is based on the person’s ability to think rationally, so that if a person is insane they were acting under
- such a defect of reason from a disease of the mind that they did not know
- the nature and quality of their actions, or
- that what they were doing was wrong

Question 134

What is a disease of the mind?

Answer 134

“a term which defies precise definition and which can comprehend mental derangement in the widest sense”

Question 135

What was the disease of the mind in R v Warren?

Answer 135

He believed he was in a time capsule, not in a car driving at speed

The Court in this matter found that a manic episode of bipolar affective
disorder with psychotic features was a disease of the mind for the purposes of s23(2)

Question 136

In relation to disease of the mind, what does it focus on?

Answer 136

A condition may be a disease of the mind whether or not there is any damage to the brain or other physical organ, the law being concerned with the “mind” — the mental faculties of reason, memory, and understanding; and the disorder may be permanent or temporary, of short or long duration,
curable or incurable

Question 137

What does disease of the mind exclude?

Answer 137

A temporary mental disorder caused
by some factor external to the defendant, such as a blow on the head, the absorption of drugs, alcohol, or an anaesthetic, or hypnotism

Question 138

Who determines if something falls within the meaning of disease of the mind?

Answer 138

A judge because it is a question of law. Medical experts are permitted to say whether they regard a disorder as a disease of the mind but the decision is ultimately up to the judge

Question 139

R v Codere (nature and quality of the act)

Answer 139

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.

Question 140

Part of the test of insanity is that the defendant knew what they were doing was wrong, what is the test that establishes that?

Answer 140

The test is that the defendant knew that their acts were morally wrong – they do not need to know that they were legally wrong. If someone cannot
understand that their act is morally wrong, then they lack rational
understanding

Question 141

If someone is unfit to stand trial or acquitted on insanity what may happen to the defendant?

Answer 141

They may be detained as a special patient or special care recipient

Question 142

Who does the Judge consult with when deciding to detain, release or apply alternative orders to a defendant?

Answer 142

The court must decide whether to detain, release or apply alternative orders to the person. In reaching its decision, the court must consider all the circumstances, and may hear further medical evidence concerning whether release or alternative measures are safe in the public interest

Question 143

R v Cottle (Automatism)

Answer 143

Doing something without knowledge of it and without memory afterwards of
having done it - a temporary eclipse of consciousness that nevertheless leaves
the person so affected able to exercise bodily movements

Question 144

What are the two types of Automatism

Answer 144

Action without conscious volition (both sane and insane)

An act which is done by the muscles without any control by the mind

Sane: the result of sleepwalking, a blow to the head or the effects of drugs

Insane Automatism: the result of mental illness

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

Question 145

What did the Court find in R v Bratty

Answer 145

An act which is done by the muscles without any control by the mind;
the Court found this to be such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing, such as an act done whilst suffering from concussion or whilst sleepwalking

Question 146

Is there culpability with automatism?

Answer 146

Actions performed in a state of automatism are involuntary and the common law rule is that there is no criminal liability for such conduct

Question 147

What medical conditions can cause automatism?

Answer 147

Sleep walking, concussion ,a brain tumour, epilepsy, arteriosclerosis
(which can cause temporary unconsciousness by interfering with the supply of blood to the brain)

Question 148

Can automatism be caused by a voluntary intake of alcohol or drugs?

Answer 148

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 149

If a successful plea of automatism is entered what does that mean

Answer 149

If there is no question of disease of the mind, a successful plea of automatism negates intent as well as responsibility for the actus reus, and the result is an unqualified acquittal. If the defendant produces sufficient evidence that intent was lacking because they were acting in an autonomous state, then they must be acquitted as the Crown will have failed to prove the existence of the mental element in the offence

Question 150

When can self induced intoxication lead to a defence of autonatism?

Answer 150

If the evidence is sufficiently strong to support the defence

Question 151

What is an example of a strict liability offence?

Answer 151

Drink Driving - no mens rea need to be proved by the prosecution

Question 152

What are three examples of when intoxication can be a defence?

Answer 152

Where the intoxication causes a disease of the mind so as to bring s23
(Insanity) of the Crimes Act 1961 into effect

If intent is required as an essential element of the offence and the
drunkenness is such that the defence can plead a lack of intent to commit
the offence

Where the intoxication causes a state of automatism (complete acquittal).

Question 153

What does defence need to prove for intoxication to succeed as a defence?

Answer 153

All you need to establish is reasonable doubt about the defendant’s required state of mind at the time of the offence

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 154

How do you escape liability for a strict liability offence?

Answer 154

Prove total absence of fault

Question 155

When will a defence of intoxication not fly for any offence?

Answer 155

In cases of homicide and other crimes, evidence that a person formed an
intent to commit a crime and then took drink or drugs as part of the method
of committing the crime (gaining Dutch courage) will disqualify a defence
of drunkenness or automatism

Question 156

When can intoxication be used as a defence?

Answer 156

For any crime that requires intent

Question 157

What is ignorance of law?

Answer 157

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

Question 158

Can a child claim ignorance of law?

Answer 158

Where a child does not know their act was contrary to law, they will not be
liable for any offence (s22 Crimes Act 1961)

Question 159

What is the likely result of a trial where the defendant is found to have been in a state of automatism from
intoxication?

Answer 159

Complete acquittal

Question 160

Compulsion s24

Answer 160

Subject to the provisions of this section, a person who commits an offence under compulsion by threats of immediate death or grievous bodily harm from a person who is present when the offence is committed is protected from criminal responsibility if he believes that the threats will be carried out and if he is not a party
to any association or conspiracy whereby he is subject to compulsion

Question 161

When will the person be protected from criminal responsibility if they have acted on compulsion or duress?

Answer 161

If they have been compelled to commit the offence by someone at the scene who had threatened them that they would otherwise be killed or caused grievous bodily harm

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

Question 162

In relation to threats of death or GBH (Compulsion), what are the two requirements?

Answer 162

The threats of death or grievous bodily harm must be immediate and from someone present at the time

Question 163

What is the exception to the rule that the threats must be made by someone who is present?

Answer 163

Different standards may suffice where women and children act under threats

In R v Hudson two girls committed perjury to avoid threats of injury, the compulsion defence was permitted in the circumstances, as the police could not guarantee the girls’ continuous protection

Question 164

R v Joyce (presence)

Answer 164

The Court of Appeal decided that the compulsion must be made by a person who is present when the offence is committed

Question 165

When can a defence of a ‘mistake’ be used?

Answer 165

If the elements of an offence include a requirement of intention, knowledge,
or subjective recklessness, a person can be acquitted if there was no such
state of mind at the time of the actus reus even though that mistake of fact
may not have been based on “reasonable grounds”

A defence of mistake is in effect a denial of intent 

Question 166

What is entrapment?

Answer 166

Entrapment occurs when an agent of an enforcement body deliberately causes a person to commit an offence, so that person can be prosecuted. It is
not a substantive defence in the sense of providing a ground upon which the
defendant is entitled to an acquittal. Of itself, entrapment does not necessarily give rise to an abuse of process

Question 167

In matters of entrapment what must the court consider?

Answer 167

They will assess the fairness

“In assessing fairness, the court will examine the reason the defendant was
targeted, and the way in which the agent was involved in the initiation of the offending activity”

Question 168

What are two different types of perceived entrapment?

Answer 168

Circumstances where officers have provided an opportunity to those
“predisposed” to commit certain offences AND

Situations where officers have
initiated, encouraged, or stimulated offences “by a person who would
otherwise have been a non-offender in a general sense”, and who was not “in
any event ready and available to commit the offence

Question 169

Whats an example of Police ‘over stepping the line’ in entrapment matters?

Answer 169

R v Teki- In this case the undercover officer developed an intense personal relationship with a woman who was growing cannabis. This woman would have done anything the undercover officer asked her to do. She was charged with supplying cannabis but Justice McGechan excluded the evidence on the grounds that the evidence against the defendant was unfairly obtained due to the close personal relationship

Question 170

What is the leading precedent for entrapment in New Zealand?

Answer 170

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

Question 171

Section 48 CA 1961

Answer 171

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

Question 172

What type of test is the initial need to use force in self defence

Answer 172

A Subjective test

Question 173

What subjective criteria is degree of force initially tested on?

Answer 173

• 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 174

What is the section 48 test?

Answer 174

Reasonableness, this involves an objective view as to the degree and manner of force used

Question 175

Define alibi

Answer 175

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

An alibi requires evidence of both time and place

Question 176

If a defendant require to call an alibi witness what must they do first?

Answer 176

The defendant must provide the prosecutor with the particulars of any alibi witness they intend to use in
court.

Written notice of an alibi is to be given by the defendant within 10 working days after the defendant is given notice under s20

Question 177

What is section 20 Criminal Disclosure Act (alibi)

Answer 177

S20 requires the Court or Registrar to give the defendant written notice of the requirements of section 22 and 23

• if the defendant pleads not guilty, or
• if the defendant is a child or young person, when they make their first
  appearance in the Youth Court

Question 178

What should the O/C do once provided information on the intended alibi of the defendant?

Answer 178

Ensure a prosecution report (QHA) and an active charges report are prepared on the witness

Make enquiries to rebut the evidence

Question 179

As the O/C should you interview the alibi witness?

Answer 179

The O/C case should not interview an alibi witness unless the prosecutor
requests them to do so

Question 180

What is the procedure if you do interview an alibi witness?

Answer 180

1. Advise the defence counsel of the proposed interview and give them a reasonable opportunity to be present
2. If the defendant is not represented, endeavour to ensure the witness is interviewed in the presence of some independent person not being a member of the Police
3. Make a copy of a witness’s signed statement taken at any such interview available to defence counsel through the prosecutor. Any information that reflects on the credibility of the alibi witness can be withheld under s16(1)(o)

Question 181

If defence intend to call an expert witness what are they required to tell the prosecutor?

Answer 181

Any brief of evidence to be given or any report provided by that witness,
or

If that brief or any such report is not available, a summary of the evidence to be given and the conclusions of any report to be provided

This information must be disclosed at least 10 working days before the date fixed for the defendants trial, or within any further time that the court may allow s23(1)

Question 182

What is consent?

Answer 182

‘Consent’ is a person’s conscious and voluntary agreement to something
desired or proposed by another

R v Cox - Consent must be “full, voluntary, free and informed … freely and voluntarily given by a person in a position to form a rational judgment”

R v Cook found that to be effective, consent must be “real, genuine or true consent, and may be conveyed by words or conduct or both”

Question 183

What is an example where consent is excluded as a defence?

Answer 183

A number of sections in the Crimes Act 1961 – in particular, those relating
to indecency – specifically exclude consent as a defence

Question 184

What are the five guidelines to consent?

Answer 184

1. Everyone has a right to consent to a surgical operation
2. Everyone has a right to consent to the infliction of force not involving
   bodily harm
3. No one has a right to consent to their death or injury likely to cause
   death
4. No one has a right to consent to bodily harm in such a manner as to
   amount to a breach of the peace, or in a prize fight or other exhibition calculated to collect together disorderly persons
5. It is uncertain to what extent any person has a right to consent to their being put in danger of death or bodily harm by the act of another

Question 185

Entrapment is not seen as a defence in NZ, what will the judge decide on instead?

Answer 185

Fairness or unfairness of evidence

Question 186

What in effect is a defence of mistake?

Answer 186

A defence of mistake is in effect a denial of intent

Question 187

How does the defence of entrapment apply in NZ and outline at least one case to support your answer

Answer 187

With the defence of entrapment in New Zealand, the courts rely on judicial discretion to exclude unfairly obtained evidence

Police v Lavalle (1979) provides police good guidance on how the courts apply judicial discretion in the context of “entrapment”. In that case, the Court of Appeal held that the undercover officers were merely providing L the opportunity to recruit (and live off the earnings) of women involved in prostitution, an activity the evidence
showed he was already willing to engage in.

Question 188

What is the test of self defence?

Answer 188

Subjective

Question 189

Who decide whether there is evidence of self defence?

Answer 189

The Judge

Question 190

What people are considered unable to give their consent?

Answer 190

People are considered to be unable to give their consent if they are:
− a child
− unable to rationally understand the implications of their defence
− subject to force, threats of force or fraud

Question 191

What actions do not allow for a defence of consent?

Answer 191

You cannot use the defence of consent in cases involving:
− aiding suicide
− criminal actions
− injury likely to cause death
− bodily harm likely to cause a breach of the peace
− indecency offences
− the placing of someone in a situation where they are at risk of death or bodily harm

Question 192

What is the position of the courts in NZ around a defence of autonatism caused by self induced intoxication?

Answer 192

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 193

Regarding proof of age, what is the prosecution required to produce?

Answer 193

The prosecution is required to produce evidence of age, for example a birth certificate, and provide evidence that identifies the defendant and the person named in the certificate.

The relevant age is that of the child at the time they committed the offence, not their age when they appear in court

Question 194

From whom should you seek advice in relation to questioning of children and young persons?

Answer 194

Your district youth prosecutor. To ensure compliance with the CYPF Act particularly in relation to questioning children and young persons

Question 195

What does protected from criminal responsibility mean?

Answer 195

Protected from criminal responsibility means not guilty of an offence but civil liability may still arise

Question 196

What is compulsion?

Answer 196

Compulsion is the act of compelling a person to do something against their will

Compulsion or duress is a defence when a person acts solely as a result of threats

The threats must operate on the persons mind at the time of the offence and he or she must genuinely believe him

Question 197

In relation to compulsion what does immediate mean?

Answer 197

It means at the scene from a person present at the time

The threat must be immediate from a person present at the offence