Semester One - Basics

Question 1

What is involuntary behaviour and what does it do?

Answer 1

Involuntary behaviour are circumstances in where the defendant does not have control of his/her actions.

An involuntary defence is complete rejection of responsibility and results in full acquittal if successful.

Otherwise known as Automatism

Question 2

What constitutes involuntary behaviour or automatism?

Answer 2

Involuntary behaviour is regarded as actions acted through the body without assistance from the mind, that he was unable to make decisions regarding the act. - North P

Question 3

What does Police v Banin stand for?

Answer 3

Rough framework for voluntary action

(a) appreciation of key facts
(b) capacity to reason with regard to those facts
(c) capacity to forms mens rea
(d) Some understanding of the action at hand

If that criteria is not met then the action is involuntary. Not absolute.

Question 4

What is the essential element of involuntary actions?

Answer 4

That one must have control of his actions in order for that action to be criminally liable, therefore lack of control means no liability.

Question 5

What are the three categories of involuntary action?

Answer 5

(1) Loss of physical control
(2) Impaired consciousness
(3) Impossibility of compliance

Question 6

What constitutes loss of physical control?

Answer 6

If one actions are either physically overpowered, induced by convulsion or muscle spasm, then their actions were involuntary stemming from a loss of physical control.

Question 7

What constitutes impaired consciousness?

Answer 7

Impaired consciousness is wherein one loses the deliberative ability of the mind to influence actions.

This occurs alongside unconsciousness but one need not be fully unconscious before that deliberative ability is gone.

Question 8

What constitutes impossibility of compliance?

Answer 8

Wherein circumstances that require X to be complied with, however, the individual in question does not have the means to do so. That is impossibility of compliance.

Question 9

What does Kilbride v Lake stand for?

Answer 9

Driver left his car to go shopping. WOF fell off and he was charged with not complying with regulations. However, at the time he left his car, the WOF was still there. It was ruled that it was impossible for him to comply with the regulations because he thought the WOF was there and therefore could not do anything about the fact that it wasn’t.

A case of omission as much as involuntariness.

Question 10

Define insane automatism

Answer 10

As supposed to sane automatism where the individual has lost control for the aforementioned reasons, insane automatism affects loss of control via disease of the mind.

Question 11

What is the scope of insane automatism?

Answer 11

Is its own species of law, reversed burden of proof on the defence and successful defences result in institutionalised help instead of acquittal.

Question 12

What is the doctrine of antecedent fault and how does it relate to automatism?

Answer 12

The doctrine of antecedent fault is essentially a prior fault examination. It examines the series of events leading up to the offence in question.

With regards to automatism, if it was foreseeable for the individual to engage in an illegality in his state of automatism in the events leading up to it, they are still criminally liable.

Question 13

How does the doctrine of antecedent fault relate in NZ and what defence must be raised?

Answer 13

NZ does not embrace the doctrine of antecedent fault unless in some instances of strict liability automatism and homicide.

On those occasions, the defence of due diligence must be raised and the burden of proof reversed. The defence must prove that the events leading up to the offence did not raise any particular foreseeability to that offence occurring.

Question 14

What are the facts and principles of Finau v Department of Labour

Answer 14

Individual ordered to leave country but because she was pregnant, no flight would take her. She was charged but not convicted on the basis that it was impossible for her to comply.

Question 15

What are the facts and principles of Tifaga v Department of Labour?

Answer 15

Individual was responsible for the setting up of circumstances that made it impossible for them to comply.

Temp visa holder would eventually have to leave but no money when time came, court ruled that he should have saved money to leave given it was temp.

Question 16

What is an omission?

Answer 16

An omission is a failure to act, the failure of which provides the frame for an offence to occur.

Question 17

What are the prerequisites for an omission?

Answer 17

For a crime to occur by ways of an omission, the offender must have been under a duty of care to act, a duty that was not discharged.

Failure to act provides the frame of the offence and is not the offence itself. During the period he did not act, if a crime occurs, he will be liable.

Question 18

What are the four categories of duties that can trigger an offence by ways of an omission?

Answer 18

1. Duties imposed via statute
2. Duties imposed via special relationship to the victim
3. Duties imposed on people assuming a particular responsibility
4. Duties imposed via relationship to harm

Question 19

What section of the crimes act encapsulates duties imposed via special relationship to the victim?

Answer 19

Sections 152 reflects parent-child relationships
Section 151 reflects guardian-vulnerable adult relationships

In both instances, the parent/guardian is under a duty to provide necessaries of life and to take reasonable steps to protect from injury.

Question 20

Elaborate on duties imposed via statute

Answer 20

Statutes that impose liability through omissions are often crimes that can only be committed through an omission.

Question 21

What constitutes a duty to provide necessaries of life?

Answer 21

Necessaries of life constitutes the provision of goods and services necessary to sustain life such as food, medical care, housing, etc.

Question 22

When does a duty arise under section 152 (parent- child)?

Answer 22

When

(a) parent or agent in place of parent (loco parentis)
(b) child is under 18 years of age
(c) child is listed under their care
(d) If the child is helpless (dependency)

Question 23

When does a duty arise under section 151 (guardian and vulnerable adult)?

Answer 23

When

(a) Vulnerable adult listed in their charge or care
(b) vulnerable adult unable to provide themselves with necessaries
(c) Vulnerable adult unable to withdraw themselves from their charge or care (dependency)

Question 24

What constitutes a vulnerable adult for the purposes of section 151?

Answer 24

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

Question 25

What constitutes injury for the purposes of sections 151 and 152?

Answer 25

Injury is harm from any source, the injury is not the focal point but the risk of it.

Question 26

What is the crucial element of law inherent to duties under s 151 and 152?

Answer 26

The element of dependency, in addition to listing criteria’

Question 27

What is Section 195 of the Crimes Act?

Answer 27

Section 195 concerns ill-treatment and neglect of children and vulnerable adults.

S 195 concerns omissions that are intentional and of gross neglect. Is a conduct offence

Question 28

What are the mens rea requirements of s 195?

Answer 28

(a) intentional omission

(b) risk from omission is a major departure

Question 29

Are household members limited to people who reside at the residence of the victim? And if so, what criteria triggers a duty of care?

Answer 29

Those who are in frequent contact with said household members are considered household members themselves for the purposes of this act.

They must be personally aware of the risk and the potential harm. In such cases they are required to take reasonable steps to prevent that harm.

Question 30

What Section 145?

Answer 30

Section 145 is the criminal nuisance behaviour

If anyone does any act of omission that creates a risk to the public and/or others and knows of that risk, they are liable for criminal nuisance.

The omission need not be a major departure

Question 31

What are the duties assumed in relation to certain activities

Answer 31

Section 155: Acts dangerous to life
Section 156: People in charge of dangerous things
Section 157: Duty to avoid omissions dangerous to life

Question 32

What is the source of duties imposed in relation to harm?

Answer 32

Wealth of common law duties stating that if one creates a harm, they are under a duty to take reasonable steps mitigate it.

R v Evans
R v Miller
R v Wacker

Question 33

What is causation?

Answer 33

Causation is the legal mechanism that links the accused to the victim by way of the events that took place.

Question 34

What is the non-legal indicator that there is a causal link?

Answer 34

The But For test, while not legally definitive, is used to survey the possibility that the accused may be connected to the offence.

But for the accused action, would the offence have occured?

Question 35

What are the two legal tests for causation?

Answer 35

1. Substantial and operative test

2. Reasonable foreseeability test

Question 36

What is the substantial and operative test?

Answer 36

The substantial and operative test centres on the moment of the offence and analyses whether or not the accused actions are playing a substantial and operative role.

The role need not be the primary role.

Question 37

What is the reasonable foreseeability test?

Answer 37

The reasonable foreseeability test centres around the moment the accused committed the purported action that eventually led to an offence.

From that position, you ask whether or not it was reasonably foreseeable that the accused could see the later offence occurring.

Only used for cases of death resulting from fright and self preservation

Question 38

What is a Novus Actus Interveniens?

Answer 38

An intervening event that breaks the chain of causation between the accused and the victim.

Question 39

What are the three generalisations of NAI?

Answer 39

1. The actions of a person other than the accused (including deceased) are the immediate cause of death
2. Those actions are independent of the situation created by the accused
3. The relevant person is fully informed about the situation

Question 40

How many forms of mens rea are there?

Answer 40

6

1. Intention
2. Knowledge
3. Recklessness
4. Negligence
5. Strict Liability
6. Absolute Liability

Question 41

What are the two dimensions to mens rea?

Answer 41

There is an objective and subjective standard of mens rea. In some cases, there may be a hybrid of the two.

Question 42

What is subjective mens rea?

Answer 42

Subjective mens rea is the analysis of the accused mind as it was during the time of the offence. Must be inferred to the following;

Eg. Intention, knowledge and recklessness

Question 43

What is objective mens rea?

Answer 43

Objective mens rea holds the accused to a standard of behaviour external to themselves; the reasonable person standard.

Eg. Negligence

Question 44

Define intention

Answer 44

Purposive desire to bring about something, or a knowledge that actioned result is virtually certain .

Purposive desire is want, belief and acts accordingly

Virtual certainty is meaning to bring about the result or aware that the result is a foregone conclusion

Question 45

Define Knowledge

Answer 45

To accept a proposition knowing or believing it to be correct without significant doubt.

Belief is premised upon a subjective evaluation of fact and not from assessment of the circumstances.

In other words, to know is more than to suspect but falls short of certainty.

Question 46

Define Recklessness

Answer 46

Knowledge of a risk and decision to run that risk in circumstances where it is not socially justifiable

Question 47

What is the negligence standard?

Answer 47

Negligence is an objective analysis using the reasonable person standard

Question 48

Distinction between recklessness and negligence?

Answer 48

Recklessness is an objective assessment of running a subjectively perceived risk while negligence is objectively running an objective risk

One is subjective, the other objective

Question 49

Standards of care (negligence) between civil and criminal law?

Answer 49

Civil law is held to the standard of a reasonable person while criminal law is major departure from the standard care expected of a reasonable person.

Subject to the statute in question

Question 50

In order for an NAI to occur via a third party, what two conditions must be met?

Answer 50

1. The original harm by the accused is no longer playing a substantial and operative cause on the victim
2. The intervention by a third party must be independent of the harm initially caused by the accused

Question 51

Wherein circumstances the victim brings about his/her own death, how can it still be attributable to the accused?

Answer 51

Provided that the victims action were in response to the accused wrongdoing and that it was reasonably foreseeable that they would respond in such a way, the accused is still liable.

This is the reasonable foreseeability test, reserved for cases such as fright and self-preservation.

Question 52

What is the technical process behind mens rea appliation?

Answer 52

1. Align mens rea with actus reus to set up concurrence
2. What is the criteria for the mens rea to be met
3. Is that criteria met on the facts?

Question 53

Similarities between recklessness and intention?

Answer 53

Both recklessness and intention require the accused to foresee the possibility of the act (actus reus), however, recklessness does not require motivation to bring it about.

Question 54

Distinctions between recklessness and intention?

Answer 54

Some acts can only be done intentionally, intent to be indecent not recklessly indecent.

Intent is not bound by reasonableness as the risk in recklessness is.

Some defences are intent such self-defence, one cannot recklessly act in self-defence but intend to act in self defence.

Question 55

What is concurrence?

Answer 55

Concurrence is the confluence of actus reus and mens rea to form an offence where the liability can be attributed to the accused

Question 56

Can a crime be committed if the act precedes the intent?

Answer 56

Concurrence can occur when the act precedes the intent through the continuing doctrine, realisation then continuing, or wherein the act creates a duty and omission

Question 57

What does Thabo Meli stand for with regards to concurrence

Answer 57

Wherein cases the intent precedes the act, Thebo Meli has ruled that a preconceived plan will provide the guiding intention that will enable the separated mens rea and actus reus to be viewed as one continuous act

Question 58

What does Ramsay stand for with regards to concurrence?

Answer 58

Thebo Meli is absolute with regard to intentional murder

However, lesser states of mens rea will not meet that criteria. The lesser states intentions are not strong enough to offer a guiding intention to string multiple acts as one narrative.

Question 59

How does Kumar v R modify the Thebo Meli standard with regards to concurrence in NZ?

Answer 59

Kumar abandons the requirement for the preconceived plan outlined in Thebo Meli.

A series-of-events no longer needs a preconceived plan to be viewed as one narrative, an overarching intent that can logically be extended from the separated acts is sufficient to do so.

Question 60

What does R v Mckinnon demonstrate?

Answer 60

Mckinnon demonstrates a causation approach to concurrence problems.

Use of the substantial and operative test to circumnavigate the slight differences between acts.

Question 61

What is strict liability?

Answer 61

Strict liability offences are offences in where only the actus reus has to be established and no mens rea is required.

The burden of proof is reversed and the defence must prove that the accused possessed no fault when that happened to the balance of probabilities

Question 62

What is absolute liability?

Answer 62

Absolute liability offence are offences where the actus reus alone will constitute the crime, no mens rea is required, and the accused cannot raise no fault defences.

Very rare, will be expressed by statute

Question 63

What is presumed mens rea (truly criminal offences)?

Answer 63

Presumed mens rea is mens rea classification for certain drug offences in where mens rea is not stated therefore it is presumed to be intent and knowledge.

Question 64

What is the no fault defence (absence of fault)?

Answer 64

The no fault defence (due diligence) is raised in strict liability cases in where the accused must prove they possessed no fault as they took reasonable care to avoid the fault. (Reasonable person - Negligence)

This must be proved to the balance of probabilities

Question 65

Who has the persuasive burden of proof?

Answer 65

The crown, with limited exceptions, is expected to prove the facts as they represent them to be beyond a reasonable doubt.

This is so out of respect to the presumption of innocence.

Question 66

Who has the evidentiary burden of proof?

Answer 66

Both the defence and the crown have the right to exercised the evidentiary burden. The defence may do so to cast doubt on the crowns story and the crown may do so to disprove that doubt.

Question 67

What are the standards of proof that binds the crown and defence?

Answer 67

The crown is bound to the standard of beyond reasonable doubt and the defence, when the persuasive burden is reversed, is to the standard of balance of probabilities.

Question 68

When is the burden of proof reversed to the defence?

Answer 68

In cases of insanity, statutory defences and absence of fault in relation to strict liability.