Likely Questions Flashcards
Q and A (90 cards)
1
Q
What is the penalty for attempted murder?
A
14 years imprisonment
2
Q
Define R v Tarei
A
Withdrawal of any form of life support system is not “treatment” under s166 CA 61. To withdraw life support does not cause death but removes the possibility of extending the person’s life through artificial means.
3
Q
Outline section 181 of the Crimes Act 1961
concealing a dead body of a child
A
Everyone is liable to imprisonment for a term not exceeding 2 years who disposes of the dead body of any child in any manner with intent to conceal the fact of its birth, whether the child died before, or during, or after birth.
4
Q
In which Court does a youth facing a charge of murder or manslaughter appear?
A
Young persons over 14 years of age are usually dealt with under the youth justice provisions of the CYPF Act although charges of murder and manslaughter will be heard in the High Court following the committal process in the Youth Court.
5
Q
A question of law relating to whether the condition is a disease of the Mind is answered by whom
A
The Judge
6
Q
What the accused’s state of mind I was at the time of the offence is a question decided by whom
A
The jury
7
Q
What was held in R v Kamipeli
A
It does not have to be shown that the defendant was incapable of forming the men’s rea, merely that, because of their drunken state, they did not have the proper state of mind to be guilty.
8
Q
What is the burden of proof for insanity
A
The 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.
9
Q
Section 153 of the Crimes Act 1961, what is the relevant age of the person who is employed
A
Under the age of 16 years
10
Q
Where a charge of infanticide is laid, who decides on the Mother’s State of Mind
A
The jury
11
Q
Pursuant to section 22(3)(a) of the Criminal Disclosure Act 2008, the notice under subsection (1) must include:
A
(3) without limiting subsection (1)
the noticed under subsection (1) must include the name and address of the witness or, if the name and address is not known to the defendant when the notice is given, any matter known by the defendant that might be of material assistance in finding that witness;
12
Q
Before a conviction can be obtained for manslaughter, where one of the sections referred to is section 150A(1) of the CA 61, what must the prosecution prove?
A
A very high degree of negligence or gross negligence
13
Q
Proximity is a question of law decided by whom?
A
The Judge
14
Q
Written notice of an alibi is to be given by the defendant:
A
Within 10 working days after the defendant is given notice under section 20 of the criminal Disclosure Act 2008
15
Q
Written notice of an alibi is to be given by the defendant:
A
Within 10 working days after the defendant is given notice under section 20 of the criminal Disclosure Act 2008
16
Q
Define R V Cox
A
Consent must be full, voluntary, free and informed, freely and voluntarily given by a person in a position to form a rational judgment.
17
Q
As a general guideline, most offences within the Crimes Act 1961, will require an intent (men’s rea) of some kind. Outline a defence that would therefore be generally available?
A
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.
18
Q
Provide an overview of the culpability of persons involved in suicide pacts
A
Any Survivor of a suicide pact is guilty of being a party to a death (if death of another person within the pact ensues)
19
Q
Outline section 25 of the Crimes Act 1961, ignorance of the law?
A
The fact that an offender is ignorant of the law is not an excuse for any offence committed by him.
20
Q
Define “Proximity” relating to attempts
A
Proximity is a question of the law; it is a question that is decided by the judge based on the assumption that the facts of the case are proved.
21
Q
Section 150A
A
Before a conviction can be obtained for manslaughter where one of the sections referred to in section 150A(1) the prosecution must prove a “very high degree of negligence” or “gross negligence”. The expressions “very high degree” and “gross negligence” are not defined by statute.
22
Q
Children aged 10 to 13 years of age charged with murder or manslaughter
A
10-13 year olds charged with murder or manslaughter (a category 4 offence) are usually dealt with under the youth Justice provisions of the CYPF Act. However, charges of murder and manslaughter will be heard in the High Court following the first appearance in the court in which the charging document was filed.
23
Q
Define section 162 Crimes Act 1961
A
162
death must be within a year and a day
1) no one is criminally 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 is an omission to fill a legal Duty, the period shall be reckoned inclusive of the day on which such omissions ceased.
4) where death is in part caused by an unlawful act and in part by an omission, the period shall be reckoned inclusive of the day on which the last unlawful act took place or The omission ceased, whichever happened last.
24
Q
Outline “M’Naghten’s rules”
A
The M’Naghten’s rules (or test) is frequently used to establish whether or not A 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 and quality of the actions, OR
- that what they were doing was wrong
25
List 4 statutory legal duties in respect of the Crimes Act 1961
The expression "Legal Duty" refers to those duties imposed by statute or common law including uncodified common law duties:
duties imposed by statute are mainly common law duties that have been embodied in statute. The CA 61 defines duties to :
1) provide the necessaries and protect from injury (S151)
2) provide necessaries and protect from injury to your charges when you are a parent or Guardian (S152)
3) provide necessaries as an employer (S153)
4) use reasonable knowledge and skill when performing dangerous acts, such as surgery (S155)
5) take precautions when in charge of dangerous things, such as machinery (S156)
6) avoid omissions that will endanger life (S157)
26
List the differences between counselling or attempting to procure murder s174 and conspiracy to murder s175
Counselling or attempting to procure murder requires that the offence is to be committed in New Zealand, whereas conspiracy to murder, the murder can take place in New Zealand 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.
27
Section 159(1) & 2 of the CA 61 defines when a child becomes a human being and is therefore able to be murdered under S158. Detail the provisions of section 159(1) & (2)
S159(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 it's 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 child is homicide if it dies in consequence of injuries received before, during, or after birth.
28
Define Homicide, S158 of the CA 61
Homicide is the killing of a human being by another, directly or indirectly, by any means whatsoever.
29
What was held in R v Mane
For a person to be an accessory the offence must be completed at the time of the criminal involvement.
One cannot be convicted of being an accessory after the fact of murder when the actus reas of the alleged criminal conduct was wholly completed before the offence of homicide was completed.
30
State the ingredients of infanticide (s178 of the CA 61)
Where a woman causes the death of any child of hers under the age of 10 years in a manner that amounts to culpable homicide, and where at the time of the offence the balance of her mind was disturbed, by reason of her not having fully recovered from the effect of giving birth to that or any other child, or by reason of the effect of lactation, or by reason of any disorder consequent upon childbirth or lactation, to such an extent that she should not be held fully responsible, she is guilty of infanticide, and not of murder or manslaughter, and is liable to imprisonment for a term not exceeding 3 years.
31
What does R v Myatt state about an unlawful act in respect of section 160(2)(a) of the CA 61
Before a breach of any act, regulation or bylaw would be an unlawful act under section 160 for the purposes of culpable homicide, it must be an act likely to do harm to the deceased or To some class of persons of whom he was one.
32
What was held in R V Tomars
Formulates the issues in the following way:
1. Was the deceased threatened by, in fear of or deceived by The Accused?
2. If they were, did such threats, fair or deception cause the deceased to do the act that caused their death?
3. Was the act a natural consequence of the actions of the accused, in the sense that reasonable and responsible people in the accused's position at the time could reasonably have foreseen the consequences?
4. Did these foreseeable actions of the victim contribute in a significant way to his death?
33
In general, no one is criminally responsible for the killing of another by any chance of the Mind.
What are the exceptions to this rule?
Willfully frightening a child under 16 years of age
Willfully frightening a sick person ( mentally or physically)
34
Section 163
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 or a sick person, nor the killing of another by any disorder or disease arising from such influence, except by wilfully frightening any such child as foresaid or sick person
35
What is meant by the term "justified"
| provide two examples
Some acts are justified even when they result in death.
Section 2 provides that when an act is justified the perpetrator is exempt from both criminal and Civil liability
Examples of such acts include:
- homicide committed in self-defence (s48)
- homicide committed to prevent suicide or commission of an offence which would likely cause immediate and serious injury to the person or property of any one (s41)
36
Why is attempted murder one of the most difficult offences in the Crimes Act 1961 to prove beyond Reasonable Doubt?
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.
37
What are the ingredients to accessory after the fact to murder?
Knowing any person to have been party to murder, received, Comfort, assists that person or tampers with or actively suppresses evidence against that person in order to enable him to escape after arrest or to avoid conviction.
38
Define the term "suicide pact"
| S180(3) CA 61
For the purposes of the section the term suicide pact means a common agreement between two or more persons having for it's object the death of all of them, whether or not each is to take his own life; but nothing done by a person who enters into a suicide pact shall be treated as done by him and pursuance of the pact unless it is done while he has the settled intention of dying in pursuance of the pact
39
Discuss the case Forest and Forest and outline the case law
In R v Forrest and Forrest two men were charged with having sexual intercourse with a 14-year-old girl who had run away from child welfare custody. At trial the girl produced her birth certificate and gave evidence herself that she was a person named in the certificate. The men successfully appealed their conviction on the grounds that the Crown had not adequately proved the girls age.
The best evidence possible in the circumstances should be adduced by the prosecution to prove the victims age.
40
How do New Zealand courts deal with a defence of automatism arising out of taking alcohol and / or drugs
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 content 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.
41
List the ingredients of section 48 of the Crimes Act 1961
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.
42
What was held in R v Ranger
If this accused 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 the 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 preemptive strike with a knife would be reasonable force in all the circumstances.
43
Provide 3 guidelines in respect of consent regarding assault
1. Everyone has a right to consent to 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 price by 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.
44
In relation to section 160(2)(d) of the CA 61, give two practical examples of culpable homicide which has been caused by the victims actions, prompted by threats or fear of violence
1. Jumps or falls out of a window because they think they're going to be assaulted.
2. Jumps into a river to escape and attack and drowns
3. Who has been assaulted and believes their life is in danger, jumps from a train and has killed.
45
To establish proof of death, and relation to homicide, you must prove three key elements they are?
1. Death occurred
2. Deceased is identified as the person who has been killed.
3. The Killing is culpable.
4. Death can be proved by direct and or circumstantial evidence.
46
What is the definition of the period "a year and a day" outlined in section 162(2) CA 61
The period of the 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.
47
Section 168(1)(a) of the CA 61 refers to the term "grievous bodily injury" what does this mean and give an example of such an injury
```
In subsection (1)(a) "grievous bodily injury" means harm that is very serious, such as injury to a vital organ.
For example stabbing someone in the kidney.
```
48
In the test for proximity, Simester and Brookbanks ( principles of criminal law) suggest the following questions should be asked in determining the point at which an act of mere preparation of committing a crime may become an attempt.
What are those two questions?
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 into the actual crime itself?
49
Give an example when murder might be reduced to Manslaughter even though the accused intended to kill or cause grievous bodily harm
Mitigating circumstances, such as a suicide pact, reduce what would otherwise be murder to Manslaughter, even though the accused may have intended to kill or cause grievous bodily harm.
50
What is involuntary manslaughter?
Covers those types of unlawful killing in which the death is caused by an unlawful act of gross negligence. In such cases there has been no intention to kill or to cause grievous bodily harm.
51
Define alibi
An alibi is the plea in a criminal charge of having been elsewhere at the material time: the fact of being elsewhere
52
What must the defendant include in a notice of alibi?
The name and address of the witness or, if the name and address is not known to the defendant when the notice is given, any matter known by the defendant that might be of material assistance in finding that Witness.
53
Define attempts under section 72(1) of the Crimes Act 1961
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.
54
Outline culpable homicide section 160 (1) & (2) of the CA 61
S160
(1) homicide may be either culpable or not culpable.
(2) homicide is culpable when it consists in a killing of any person:
(a) by an unlawful Act or
(b) by an omission without lawful excuse to perform or observe any legal Duty or
(c) by both combined or
(d) by causing that person by threats or fear of violence, or by deception, to do an act which causes his death or
(e) by willfully frightening a child under the age of 16 years or a sick person
55
Explain what is meant by section 160(2)(b) of the CA 61, omission to perform a legal Duty?
This covers cases where nothing is done when 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.
56
Define "wilfully frightening"
Willfully frightening is regarded as intending to frighten or at least be Reckless as to this.
57
Explain R v Horry
Death should be provable by such circumstances as render it morally certain and leave no ground for Reasonable Doubt - that's the circumstantial evidence should be so cogent and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for.
58
What was held in R v Harney
Recklessness means the conscious and deliberate taking of an unjustified risk. In New Zealand it involves proof that the consequences complained of could well happen, together with an intention to continue the course of conduct regardless of risk.
59
What are the legal duties of a parents or Guardian under section 152 of the Crimes Act 1961
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 -
(a) to provide that child with necessaries;
and
(b) to take reasonable steps to protect that child from injury.
60
What are the ingredients aisle section 154 of the Crimes Act 1961 abandoning a child under 6
Everyone is liable to imprisonment for a term not exceeding 7 years who unlawfully abandons or exposes any child under the age of 6 years.
61
Outline the culpability for children and a 10 and children 10 to 13 years.
Under 10 - 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.
10 - 13yrs - for children aged between 10 and 13 years inclusive, it must be shown that the child knew their act was wrong or contrary to law. If this knowledge cannot be shown, the child cannot be criminally liable for the offence.
62
Define insanity
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.
63
What was held in R v Cottle
| Burden of proof insanity
As to the degree of Proof, it is sufficient if the plea is established to the satisfaction of the jury on a preponderance of probability without necessarily excluding all reasonable doubt.
64
What was held in 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.
65
What is a strict liability offence
Any offence that does not require an intent is called a strict liability offence and the only way A defendant can escape liability for such an offence is to prove a total absence of fault.
For example driving with Excess breath alcohol.
66
What three points must be satisfied before a defence of compulsion can be used
A person is protected from criminal responsibility if they have been compelled to commit the offence by someone at the scene, who had threatened them that they would otherwise be killed or caused grievous bodily harm. The accused must have genuinely believed the threats and must not be a party to any association or conspiracy involved in carrying out the threats.
67
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.
68
Give two circumstances where culpable homicide Is Murder
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 the cause the person killed any bodily injury that is known to the offender to be likely to cause death, and is Reckless whether death ensues or not:
(c) if the offender means to cause death, or, being so reckless as aforesaid, means to cause such bodily injury as aforesaid to one 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 decided that his object should be effected without hurting any one.
69
Define legal Duty
The expression "Legal Duty" refers to those duties imposed by statute or common law including uncodified common law duties:
70
Outline section 163 of the Crimes Act 1961
No one is criminally responsible for the killing of another by any influence on the mind alone, except by willfully 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 child as aforesaid or a sick person.
71
What is the required State of Mind for section 167(b) of the CA 61
To show that the accused State of Mind meets the provisions of section 167(b), you must establish that the accused:
1. Intended to cause bodily injury to the deceased
2. Knew the injury was likely to cause death
3. Was Reckless as to whether death ensued or not
72
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.
73
Outline R v Blaue
Those who use violence must take their victims as they find them
74
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
- 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.
75
What was held at R v Clancy
The best evidence as to the date and place of a child's birth or normally 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
76
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.
77
What is "sane" and "insane" Automatism
Automatism may be quite different and distinct from insanity, although it may be due to a disease of the Mind. Hence it is necessary to distinguish between:
Sane Automatism - the result of somnambulism (sleepwalking), a blow to the head or effects of drugs
Insane automatism - The result of a mental disease.
78
What is the courts view of entrapment
In New Zealand the courts 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.
79
Outline the subjective and objective tests relating to section 48 of the Crimes Act 1961
Once the accused has decided that force was required ( a subjective view of the circumstances as the accused believe them), S48 then introduces a test of reasonableness which involves an objective view as to the degree and manner of the force used
80
What was held in 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 do not initiate the person's interest or willingness to so offend.
81
What is the procedure when alibi Witnesses are interviewed
The OC case should not interview an alibi Witness unless the prosecutor request them to do so. Different interview is requested, follow this procedure:
- advise the defence counsel of the proposed interview and give them a reasonable opportunity to be present
- if accused is not represented, endeavour to ensure the Witnesses interview in the presence of some independent person not being a member of the police.
- make a copy of the witness's signed statement taken at any such interview available to defence counsel through the prosecutor. Any information that reflects on the credibility of our witness can be withheld under s16(1)(o)
82
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 to be provided.
- this information must be disclosed at least 14 days before the date fixed for the defendant's hearing or trial, or within any further time that the court may allow (s23(1))
83
General rules regarding intoxication
In the past intoxication was considered to be no defence to a criminal charge and, indeed, an aggravating rather than mitigating factor. The general rule has been that intoxication may be a defence to the commission of an offence :
- where the intoxication causes a disease of the mind so as to bring s23 (insanity) of the CA 61 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)
84
Define Alibi
An alibi is the plea in a criminal charge of having been elsewhere at the material time: the fact of being elsewhere.
85
Section 178 infanticide
(1) where a woman causes the death of any child of hers under the age of 10 years in a manner that amounts to culpable homicide, and where at the time of the offence the balance of her mind was disturbed, by reason of her not having fully recovered from the effect of giving birth to that or any other child, or by reason of the effect of lactation, or by reason of any disorder consequent upon childbirth or lactation, to such an extent that she should not be held fully responsible, she is guilty of infanticide, and not of murder or manslaughter, and is liable to imprisonment for a term not exceeding 3 years.
86
A hearsay statement is admissible in any Proceeding IF:
Section 18 general and miscibility of hearsay (evidence Act 2006)
(1) a hearsay statement is invisible 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 was required as a witness
87
Voluntary manslaughter
Mitigating circumstances, such as suicide pact, reduce what would otherwise be murder to Manslaughter, even though the accused may have intended to kill or cause grievous bodily harm.
88
Degree of force under self-defence
The degree of force permitted is tested in initially under the following subjective criteria:
- what are the circumstances that the defendant genuinely believes exist
- do you accept that the defendant genuinely believe those facts?
- is the force used reasonable in the circumstances believed to exist?
89
Required state of mind for section 167(b) of the CA 61
To show the defendant State of Mind meets the provisions of section 167(b), you must establish that the defendant;
- intended to cause bodily injury to the deceased
- new the injury was likely to cause death
- was Reckless as to whether death ensued or not
90
Sections 167 and 168 define the offence of murder
167 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 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 has object should be effected without hurting anyone
168 Further definition of murder
(1) Culpable homicide is also murder in each of the following cases, whether the offender means or does not mean death to ensue, or knows or does not know that death is likely to ensue :
(a) if he means to cause grievous bodily injury for the purpose of facilitating the commission of any of the offences mentioned in subsection (2) of this section, or facilitating the flight or avoiding the detection of the offender upon the commission or attempted commission thereof, or for the purpose of resisting lawful apprehension in respect of any offence whatsoever, and death ensues from such injury.
(b) if he administers any stupefying or overpowering thing for any of the purposes aforesaid, and death ensues from the effects thereof.
(c) Happy by any means willfully stops the breath of any person for any of the purposes aforesaid, and death ensues from such stopping of breath.
