Part 1

Question 1

The critical factors for a charge of murder are whether the offender intended to:
(2 points)

Answer 1

• Kill the person

- Cause bodily injury that the offender knew was likely to cause death

Question 2

Define homicide

Answer 2

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

Question 3

When does a child become a human being?

Answer 3

A child becomes a human being 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 naval string is severed or not.

The killing of such child is homicide if he dies in consequence of injuries received before, during or after birth

Question 4

Define ‘unlawful act’

Answer 4

Means a breach of any act, regulation, rule or bylaw.

Question 5

Before a breach of any act, regulation or bylaw would be an unlawful act for the purposes of culpable homicide, it must be:

Answer 5

An act likely to do harm to the deceased or to some class of persons of whom he was one

Question 6

Homicide is culpable when it consists in the killing of any person by…?
(5 things)

Answer 6

• By an unlawful act
• By an omission without lawful excuse to perform or observe any legal duty
• By both combined
• By causing that person by threats or fear of violence or by any deception to do an act which causes his death
• By wilfully frightening any child under the age of 16 or a sick person

Question 7

In common law, allegations of culpable homicide have been supported where the offender has caused death by…?
(6 Things)

Answer 7

• Committing arson
• Giving a child an excessive amount of alcohol to drink
• Placing hot cinders and straw on a drunk person to frighten them
• Supplying heroine to a person who subsequently dies of an overdose
• Throwing a large piece of concrete from a motorway over bridge into the path of an oncoming car
• Conducting an illegal abortion where the mother dies

Question 8

The expression ‘legal duty’ refers to those duties imposed by statute or common law including uncodified common law duties such as…?

Answer 8

• Provide the necessities and protect from injury
• Provide necessities and protect from injury when you are a parent or guardian
• Provide necessities as an employer
• Use reasonable knowledge and skill when performing dangerous acts, such as surgery
• Take precautions when in charge of dangerous things, such as machinery
• Avoid omissions that will endanger life

Question 9

Examples of culpable homicide caused by actions prompted by threats, fear of violence or deception:
(3 things)

Answer 9

• Jumps or falls out of a window and dies because they think they are going to be assaulted
• Jumps into a river to escape an attack and drowns
• A person who has been assaulted and believes their life is in danger, jumps from a train and is killed

Question 10

Threats or fear of violence and deception.
R V TOMARS formulates the issues in the following way:
(4 things)

Answer 10

1. Was the deceased threatened by, in fear of or deceived by the defendant?
2. If they were, did such threats, fear or deception cause the deceased to do the act that caused their death?
3. Was the act a natural consequence of the actions of the defendant, in the sense that reasonable and responsible people in the defendant’s position at the time could reasonably have foreseen the circumstances?
4. Did the foreseeable actions of the victim contribute in a [significant] way to his death?

Question 11

Killing by influence on the mind.

No one is criminally responsible for the killing of another by any influence on the mind alone, except….:?

Answer 11

By wilfully frightening a child under the age of 16 years or a sick person

Question 12

Proof of death.
To establish the death, you must prove the:
(3 things)

Answer 12

• death occurred
• deceased is identified as the person who has been killed
• the killing is culpable

Death can be proved by direct and/or circumstantial evidence

Question 13

Murder defined.
Culpable homicide is murder if…?
Section 167(c)
(4 things)

Answer 13

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.

Question 14

To show the defendant’s state of mind you must establish that the defendant:
(3 things)

Answer 14

• Intended to cause the bodily injury to the deceased
• Knew the injury was likely to cause death
• was reckless as to whether death ensued or not

Question 15

R v PIRI (recklessness)

Answer 15

Recklessness involves a conscious, deliberate risk taking. The degree of risk of death foreseen by the accused must be more than negligible or remote.

The accused must recognise a ‘real or substantial risk’ that death would be caused.

Question 16

Define ‘grievious bodily injury’

Answer 16

Means harm that is very serious, such as an injury to a vital organ.

Question 17

Definition of ‘attempts’

Answer 17

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.

Question 18

What is the difference between Section 174 (Counselling or attempting to procure murder) and Section 175 (Conspiracy to murder)?
(3 things)

Answer 18

174 -

• Must be in NZ
• Murder is in fact NOT committed
• Incites or counsels/procures anyone to commit murder

175-

• In NZ or elsewhere
• Applies whether murder committed or not
• Conspires or agrees with anyone to commit murder

Question 19

Define voluntary manslaughter

Answer 19

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

Question 20

Explain the difference between voluntary and involuntary manslaughter

Answer 20

Voluntary manslaughter must include an intention to kill while involuntary covers an unlawful act or gross negligence where there is no intention to kill or cause GBH.

Question 21

Manslaughter by unlawful act - List what is required for proving an unlawful act for manslaughter.
(4 point test)

Answer 21

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 22

What must the prosecution prove for negligence in relation to manslaughter?

Answer 22

Must prove a ‘very high degree’ of negligence, or ‘gross negligence’.

Question 23

What are the two types of manslaugther?

Answer 23

• Voluntary manslaughter

- Involuntary mansluaghter

Question 24

Who decides on the mother’s state of mind in a case of infanticide?

Answer 24

In charges of infanticide, it is for the JURY to decide on the mother’s state of mind.

Question 25

Define Infanticide:

Answer 25

Where a woman causes death of any child of hers under the age of 10 years old in a manner that amounts to culpable homicide, and 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 the reason of the effect of lactation, or by reason or any disorder consequent upon child birth or lactation, to such an extent that she should not be held fully responsible, she is guilty of infanticide (not murder or manslaughter).

Question 26

Who can be charged under section 152 - Duty of parent or guardian to provide necessaries and protect from injury?

Answer 26

Everyone who is: - a parent or a person in place of a parent who has actual care or charge of the child under the age of 18 is under a legal duty.

Question 27

Duty of employer to provide necessaries is applicable to an employer who:

Answer 27

has contracted to provide necessary food, clothing or lodging for any servant or apprentice UNDER THE AGE OF 16 YEARS

Question 28

Define 'vulnerable adult':

Answer 28

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

Question 29

154 - Abandoning child under 6 Fill in the blanks... Everyone is liable to imprisonment for a term not exceeding ___ years who unlawfully abandons or exposes any child under the age of ___ years.

Answer 29

Imprisonment of 7 years | Child under the age of 6 years

Question 30

Withdrawal of life support.

Answer 30

The 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.

Question 31

Someone in pursuance of a suicide pact is guilty of what offence?

Answer 31

Everyone who in pursuance of a suicide pact kills any other person is guilty of MANSLAUGHTER and not murder.

Question 32

Define 'suicide pact'

Answer 32

A common agreement between 2 or more people having for its object the death of them all, whether or not each is to take their own life. Nothing done by a person who enters a suicide pact shall be treated as done by him in pursuance of the pact unless it is done while he has the settled intention of dying in pursuance of the pact.

Question 33

Concealing dead body of a child. | What is the punishment?

Answer 33

Everyone is liable to imprisonment for a term not exceeding 2 years

Question 34

What intent must be present for concealing dead body of a child?

Answer 34

Someone who disposes of the dead body of a child in any manner with the intent to CONCEAL THE FACT OF ITS BIRTH, whether the child died before, during or after the birth.

Question 35

Hearsay statements. For a statement to be admissible evidence under s18(1) of the EA06, the Court must be satisfied that both the content and the person who made it are reliable. You must therefore record any factors that demonstrate reliability. Circumstances to consider under s16(1) of EA06 include: (5 things)

Answer 35

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

Question 36

Define 'justified'

Answer 36

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

Question 37

Define 'protected from criminal responsibility'

Answer 37

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

Question 38

What is the general rule of children (under 14) offenders for murder related charges?

Answer 38

As a general rule, all child offenders will be referred to the care and protection co-ordinator until they reach the age of 14

Question 39

Children aged 10-13 years old who are charged with murder or manslaughter will appear in which court?

Answer 39

Charges are filed in the district court, the first appearance takes place in the youth court and then the case automatically transfers to the high court for trial and sentencing

Question 40

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

Answer 40

The district youth prosecutor

Question 41

Insanity. No person shall be convicted of an offence by reason of an act done or omitted by them when labouring under natural imbecility or disease of the mind to such an extent as to render him incapable of:... (2 things)

Answer 41

- Of understanding the NATURE AND QUALITY of the act or omission - of KNOWING that the act or omission was MORALLY WRONG, having regard to the commonly accepted standards of right and wrong

Question 42

To what standard does the defendant need to prove the defence of insanity?

Answer 42

The defendant does not have to prove the defence of insanity beyond reasonable doubt, but to the satisfaction of the Jury on the BALANCE OF PROBABILITIES. Insanity is a legal question, not a medical one.

Question 43

Who decides if a defendant is insane?

Answer 43

The decision as to an accused's insanity is always for the JURY.

Question 44

The M'Naughten's rules are frequently used to establish whether or not a defendant is insane. It is based on the ability for a person's ability to think rationally so that if a person was insane they were acting under such a defect of reason from a disease on the mind that they did not know... (2 Things)

Answer 44

- The nature and the quality of their actions | - That what they were doing was wrong (morally wrong)

Question 45

Deciding if a particular condition is a disease of the mind is decided by who?

Answer 45

Deciding if a particular condition is a disease of the mind is a QUESTION OF LAW FOR THE JUDGE

Question 46

R v CODERE Nature and quality of the act (use the example given in the case law)

Answer 46

The nature and quality of the act means the physical character of the act. (A person who is so deluded that they cut a woman's throat believing that he is cutting a loaf of bread would not know the nature and quality of his act)

Question 47

Define 'automatism'

Answer 47

Automatism can be best described ads a state of total blackout, during which a person is not conscious of their actions and not in control of them. (R V COTTLE - Doing something without knowledge of it and without memory afterwards of having done it)

Question 48

What are the two types of automatism (use examples)

Answer 48

SANE AUTOMATISM: The result of somnambulism (sleepwalking), a blow to the head or the effects of a drug INSANE AUTOMATISM: The result of a mental disease

Question 49

The general rule has been that intoxication may be a defence to the commission of an offence: (three things)

Answer 49

- where intoxication causes a disease of the mind as to bring 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

Question 50

The crown must prove the intent required. What does not have to be shown for intoxication?

Answer 50

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 51

Explain if intoxication can be used as a defence to murder charges. If so, then how?

Answer 51

Intoxication can be used as a defence in NZ to any crime that requires intent. Any offence that does not require intent is called a strict liability offence and the only way that a defendant can escape liability is to prove a total absence of fault. In cases of homicide and other crimes, evidence that a person formed an intent to commit an offence and then took drugs or alcohol as a part of the method to commit the crime (Dutch courage) will disqualify a defence of drunkenness or automatism.

Question 52

Intoxication and ignorance of law:

Answer 52

If intoxication is used to try to establish ignorance of the law, it will not establish a defence.

Question 53

Define 'ignorance of law'

Answer 53

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

Question 54

Compulsion. | Explain what is needed for immediacy and presence (using case law)

Answer 54

The threats of death or GBH must be IMMEDIATE and from a person PRESENT AT THE TIME. R V JOYCE - .... the compulsion must be made by a person who is present at the time that the offence was committed.

Question 55

Is 'entrapment' a defence?

Answer 55

In NZ the courts have rejected entrapment as a defence, instead preferring to rely on the discretion of the trial Judge to exclude evidence that would operate unfairly against the defendant. Exclusion may be considered where law enforcement agents have generated the offending.

Question 56

Explain POLICE V LAVELLE when talking about undercover officers

Answer 56

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 offend.

Question 57

Define 'alibi'

Answer 57

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

Question 58

When must a defendant give notice of an alibi?

Answer 58

The notice must be given within 10 working days after the defendant is given notice under section 20.

Question 59

What must a defendant's notice of alibi include?

Answer 59

Must include the name and address of the witness, or if not known when the notice is given, any matter known by the defendant that might be of material assistance in finding the witness.

Question 60

Procedures when alibi witnesses are interviewed. When should the OC interview an alibi witness?

Answer 60

The OC case should not interview an alibi witness unless the prosecutor requests them to do so.

Question 61

If an alibi witness interview is requested by the prosecutor, what is the procedure to follow? (3 things)

Answer 61

1 - advise defence counsel of the interview and give them a reasonable chance to be present 2 - If the defendant is not represented, endeavour to ensure that the witness is interviewed in the presence of some independent person not being a member of the police 3. Make a copy of the witness's signed statement taken at interview available to defence counsel through the prosecutor. Any information that reflects on the credibility of the witness can be withheld.

Question 62

If the defendant intends to call an expert witness during proceedings, they must disclose to the prosecutor: (3 things)

Answer 62

1 - Any brief of evidence to be given or any report provided by that witness 2 - If that brief or such report is not available, a summary of the evidence to be given and the conclusions of any report to be provided. 3 - This info must be disclosed at least 10 working days before the date of the trial, or within further time that the court may allow.