Law 201A (Criminal) Mid Year Test
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107 Terms
What are the 3 types of homicide offenses
1. Murder (presumption of life imprisonment) (primary form of homicide)
2. Manslaughter (max of life imprisonment) (primary form of homicide)
3. Infanticide (max 3 years imprisonment)
Give more background info on murder sentencing
Most serious crime on statute books
Still a life sentence if you get released as you are put on parole after prison (because still being tracked and all that after that)
Presumption can be overturned but only in a very narrow set of facts (where it’s manifestly unjust)
Courts have interpreted this very restrictively
Commonly used when
Mercy killings
Hastening the process of death for someone who is terminally ill and really struggling
End of life act changing things -> fewer situations
Killing partners who have been abusive (where the jury have decided that manslaughter sand self-defense do not apply and murder is appropriate)
Another case: South African doctor Lauren Dickinson with mental health concerns and killed her three young children. Sentenced to 18 years rather than live (life would be unduly severe)
Give more background info on manslaughter sentencing
Often way under life
Can even sometimes be really "nice" e.g. home detention
E.g. woman who killed abuser given home detention so she could care for young teenage son whose dad (not the abuser) had died before
Background info on infanticide
Typically receive non-custodial sentences
Very specific situations
Recently given birth or breast feeding and gets mental issues and kills one of their children under 10
A partial defense
Can always raise it if facts allow
What are the steps of looking at homicide cases
Step 1: Whether there has been a homicide? s158 Crimes act
Step 2: Whether it is a culpable homicide? s160 Crimes act
Step 3: continue under the appropriate type of culpable homicide → set out in s160
Step 4 (if required): see if the requirements (MR) for murder (s167 + s168 crimes act) are met + see if infanticide applies
What is the process for culpable homicide by an unlawful act (s160(2)(a))?
Step 1: Whether the defendant has committed the actus reus and the mens rea of an offence?
Step 2: Is the unlawful act a full mens rea offence or a strict liability offence?
Step 3: if it is a strict liability offernce then Was the unlawful act a major departure from the standard of care expected of a reasonable person? (s 150A(2))
Step 4: Whether the unlawful act was dangerous? R v Lee - Whether the unlawful act was likely to do more than trivial harm to the deceased?
Step 5: Whether the unlawful act caused the deceased’s death? Legal Causation Test: Substantial and Operative Cause Test (Smith (Eng), Myatt, McKinnon)
What is the process for culpable homicide by an omission (s160(2)(b))?
Step 1: Whether the defendant had a legal duty to act? (S 151 - s 157, common law)
Step 2: Whether the defendant has breached the legal duty? (s 150A) Was it a major departure from the standard expected of a reasonable person undertaking the relevant activity, being in control of the relevant thing or assuming the relevant type of caregiving relationship? (R v Myatt)
Step 3: Legal Causation Test: Kuka Test “But for the defendant’s omission the deceased would not have died or would probably not have died”
What is the process for culpable homicide by a fright response (s160(2)(d))?
R v Tomars elements - distilled in R v Lucas into 3 elements
Step 1: Whether the actions of the defendant caused the deceased, from fear of violence, to act in the way they did?
Step 2: Whether the actions of the deceased were the kind of actions that could be reasonably foreseen by a reasonable and responsible person in the shoes of the defendant?
Step 3: Whether the deceased’s actions caused their own death - that is, did their own action contribute in a not insignificant way to their own death?
What is a homicide if it is not a murder
Section 171 “Except as provided in section 178 of this Act, culpable homicide not amounting to murder is manslaughter.”
What are murder and manslaughter
The two types of culpable homicide →. Section 160(3) “Except as provided in section 178 of this Act, culpable homicide is either murder or manslaughter.”
What are the different types of murder?
SECTION 167: INTENTIONAL OR RECKLESS MURDER + FELONY–MURDER: S 168(1)
Explain intentional murder
The accused “means to cause death”
Covers situations where death is the accused’s purpose or desire. (direct intention)
Some argue that means to cause death only applies to this and if they wanted to apply to both it would say intention to cause death
But this may not be the case
Includes situations where the accused has knowledge that death is a virtual certainty. (oblique intention)
Explain reckless murder
RECKLESS MURDER
Subsection (b)
means to cause bodily injury (bodily injury can even include tattoos and ear piercings)
That the offender knows is likely to cause death
Subsection (d)
for any unlawful object does an act
that he knows to be likely to cause death
Recklessness is a subjective state of mind so have to infer whether they personally were aware or not of the risk
R V PIRI [1987] 1 NZLR 66 (CA)
the amount of risk needed is that death is likely (such as well could happen)
Explain the relationship between the two types of reckless murder (S 167(B) AND (D))
Subsection (b)
means to cause bodily injury
that the offender knows is likely to cause death
Recklessness is in terms of the bodily injury but as long as they knew that death may occur then does not matter how it came about exactly (e.g. beating up and gagging someone and they die but you did not foresee exactly how it happened as long as they were reckless)
R v Pira (1991) 7 CRNZ 650 (HC)
Subsection (d)
has an unlawful object
does an act in pursuit of the unlawful object (person dies because of that act)
knows the act is likely to cause death
R v Cho HC Auckland, 19 Sept 2008
most influential case is SHADROCK V R [2011] NZCA 388
the death happens during the defendant is perusing a crime
Explain the doctrine of transferred malice
The doctrine transfers the mens rea:
Narayan v Police [2010]NZAR 36
Defendant went to hit partner who was carrying a child and being hit meant that the mother dropped the child so the child got hurt
The doctrine transfers the mens rea the accused actually possesses. It does not transform it:
Chandler v Police [2010] NZAR 25
Defendant wanted to hit another guy (common assault, intentionally applying force to the person of another)
The intended victims gf got in the way and ended up getting hit (no issue in using the doctrine of transferred malice to say that this was common assault - transferring intention)
But they tried to prosecute him for a much more serious offence (male assaults female - one of the elements is that you need to know that you are hitting a woman so what they said was that you can transfer the mens rea but not transform it (make it a more serious offence))
included in s167 (c)
Malice (mens rea) is transferred to the person who you accidentally killed (but does not change the mens rea)
Explain FELONY–MURDER: S 168(1)
3 legal requirements and 2 have alternative requirements (either or)
FIRST REQUIREMENT (has 3 alternatives)
The accused must cause gbh with the intention of causing gbh; or
Gbh is very serious harm -> a question of fact for the jury
The accused must intentionally administer a stupefying or overpowering thing; or
Can include mdma or extecy -> can be anything that makes them not in their right mind (so uncontious or woozy)
The accused must by any means wilfully stop someone’s breath.
Wilfully = intentionally
SECOND REQUIREMENT
Death must be caused by the act in question (gbh; stupefying thing or the stopping of the breath)
THIRD REQUIREMENT (has alternatives)
The accused must act for one of the following purposes:
resisting lawful apprehension in relation to any offence whatsoever
Includes minor offences (does not need to be mentioned in s 168(2))
Facilitating the commission of any of the offences mentioned in s 168(2) or the escape afterwards or avoidance of detection of the offender upon the commission or attempted commission of one of these offences
What is included in s168(2)
The most serious offenses are listed (these include the aggravated versions of the offenses)
Explain infanticide
S 178(1) - technically a third type of culpable homicide but acts basically as a defense likely to have a custodial sentence
This covers: Post-partum depression and psychosis (psychosis is more serious - likely to be said to be non culpable because of insanity -> not infanticide)
But has also applied to people who have not presented evidence of psychiatric issues
Covers chidren who are not the womans natural children
E.g. covers foster kids
Explain section 63
No one has a right to consent to the infliction of death upon himself; and, if any person is killed, the fact that he gave any such consent shall not affect the criminal responsibility of any person who is a party to the killing.
Intention or recklessness of death applies (Includes intention to inflict actual bodily harm and is reckless and causes death)
Give general information on causation
Causation is an objective question of fact (not based on what the defendant knew or anything) that should be left to the jury
You cause someone’s death by accelerating their death because everyone is already in the process of moving towards death at greater or lesser speeds (S 164)
The causal liability of a third party (or the causal responsibility of the victim) says little about the causal liability of the accused.
The accused can commit a number of acts and omissions that each independently contribute to the acceleration of death and satisfy the tests for causation. See R v Kuka. Cf R v Paenga (No 4)
What are the two types of causation
Factual causation and legal causation
Explain factual causation
Some don't pull it out as a starting point but can be good to make sure you don't leave it out
‘But for’ the accused’s actions the consequence would not have occurred
If would have happened anyways then was not factual causation (R v Hawkins)
Explain the doctrine of Novus actus interveniens
has there been a new intervening act that has broken the chain of causation?
Act of god/nature
Act of the victim
Act of a 3rd party
What cases say that the doctrine of novus actus applies when the other person’s actions come after the defendant’s actions and when the defendant’s actions have stopped being operative/are “spent”
Turton + Vaughan v R
What cases say that even when a causal link is established between the defendant’s actions and the death, the “free, deliberate and informed” act of a third party will usually be an intervening act
R v Ten Bohmer + R v Leaitua
What does R v Young explain
Pre-existing medical condition in the victim (whether or not it is a novus actus)
The accused had an argument with the victim and assaulted him.
The victim collapsed and died of heart failure.
The victim had severe heart disease – any emotional or physical excitement could have caused a cardiac arrest.
Did the accused cause the death of the victim?
The accused can still be the substantial and operative cause because the health condition does not take away from this
What does Vaughan v R establish
Contributory negligence by the victim to the accident or injury causing death (impact on novus actus)
It could not be said that the victim’s conduct was an overwhelming cause of the accident or that the company’s conduct was trivial or insignificant in how matters played out.
Company installed and designed a lift but it was done badly so was breaking
Put a tray under lift to stop it breaking Victim came to fix it, pulled away the tray and died from injuries caused by it
Was not told about the tray and why it was there
Courts said that the company was still the substantial and operative cause of death
What impact does a victim’s decision not to get medical treatment have on causation
Is not a novus actus
R v Blaue [1975] 1 WLR 1411 at 1415
Woman stabbed by the accused and refused to have the blood transfusion she was told to have as she was a Jehovah's witness and she was killed
Courts said that the accused has the substantive and operative cause
“It has long been the policy of the law that those who use violence on other people must take their victims as they find them. This … means the whole man, not just the physical man. It does not lie in the mouth of the assailant to say that his victim’s religious beliefs which inhibited her from accepting certain kinds of treatment were unreasonable. The question for decision is what caused her death. The answer is the stab wound. The fact that the accused refused to stop this end coming about did not break the causal connection between the act and death.”
Section 165
“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.”
i.e. wont blame victim for not taking medical treatment -> won't take away blame from accused
What idea does R v Kennedy (No 2) introduce
Victim’s decision to use a dangerous substance supplied by the accused is a novus actus
Accused prepared a syringe of heroin and handed it to the victim who injected himself
Accused left the room
Victim died of an overdose
Did the accused cause the victim’s death?
They said that A conviction for unlawful act manslaughter could not be based on supply alone…
Informed adults of sound mind are treated in law as autonomous beings able to make their own decisions about how they act:
“The free deliberate and informed intervention of a second person, who intends to exploit the situation created by the first, but is not acting in concert with him, is normally held to relieve the first actor of criminal responsibility.”
What are the Exceptions to the general rule in Kennedy (No 2)
Exceptions to the general rule potentially arise in the case of:
young or vulnerable people or people who are not fully responsible for their actions; or
situations involving duress, necessity, deception or mistake
To be distinguished on the facts: cases where the defendant directly injects the victim with the controlled drug
What is the conflict of authority in the high court surrounding drugs and novus actus
R v Tema HC Wellington, 5 May 2010 vs R v Leaitua [2013] NZHC 702
In Tema the high court said that they were not prepared to rule that supplying drugs could never cause the defendant’s death
Leaitua on the other hand followed the position taken in Kennedy (No 2)
"the supply of a controlled drug, consumed freely and voluntarily by the victim, cannot form the basis of an unlawful act manslaughter conviction in New Zealand, unless one of the exceptions identified by the House of Lords in Kennedy applies, Which it does not in this case."
Explain the effect medically negligent treatment has on causation
Medically negligent treatment will never break the chain of causation (neither will turning off life support)
This has been codified
Section 166
“Everyone who causes to another person any bodily injury, in itself of a dangerous nature, from which death results, kills that persons, although the immediate cause of death be treatment, proper or improper, applied in good faith.”
When the defendant starts a chain of causation just because there might have been some treatment (whether good or bad) done in good faith this will not break the chain of causation
Defendant would still be held liable
R v Kirikiri [1982] 2 NZLR 648
an e.g. of this
What does R v Cheshire [1991] 3 All ER 670 show
Shows just how much the courts won't say that medical treatment broke the chain of causation
“the accused’s acts did not need to be the sole or even the main cause of death, it being sufficient that his acts contributed significantly to that result, and that even though negligence in the treatment of the victim was the immediate cause of his death, they should not regard it as excluding the responsibility of the accused unless the negligent treatment was so independent of his acts and in itself so potent in causing death that they regarded the contribution made by his acts as insignificant.”
Cheshire shoots the victim in the leg, victim develops complications and needs medical intervention to open up the wind pipe - 2 months later when the leg is pretty much healed he dies from complications from the wind pipe intervention
Courts said that not just background -> cheshire was still culpable and the chain of causation was not done
Significant causation -> did not need to be the the main cause of death
Medical treatment would need to be very separate from the original act in order for that to be the problem
What is the high court’s stance on turning off life support: is it “treatment” under s 166?
disagreement
R v Trounson [1991] 3 NZLR 690: Life support is medical treatment
R v Tarei HC Tauranga, 5 August 2005: Life support is not medical treatment: ‘“treatment implies something done to enhance the prospects of a recovery.”
How do you find out if there has been a homicide?
s158 Crimes Act 1961 → One human being has directly or indirectly caused the death of another human being
Is the victim a human being?
Is the accused a human being?
Has the accused caused the victim's death? (note: although this is part of the definition of homicide, causation is best dealt with when determining whether it is a “culpable homicide” – ie at the next stage of inquiry!!!!)
Has death occurred within a year and a day (only for cases prior to 12 March 2019)? - (Section 162(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)
What happens if there is no homicide?
If there is no homicide s 160(4) requires the person to be acquitted
Can companies commit homicide
Murray Wright Ltd [1970] NZLR 476
This says that companies cannot commit homicide
Confusing though because in theory (and in practice) a company can still kill
Unclear whether they can be liable as secondary parties that help the principal accused -> complex area of law (party liability)
When does someone start being a human being?
s 159: “(1) 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.”
Section 159(2)
"The killing of such a child is homicide if it dies in consequence of injuries received before, during, or after birth.”
For unborn children:
182 KILLING UNBORN CHILD
183 ABORTION PROCURED BY PERSON OTHER THAN HEALTH PRACTITIONER
When does someone stop being a Human Being?
Have to turn to common law as there is no definition in statute
AUCKLAND AREA HEALTH BOARD V AG [1993] 1 NZLR 235
Thomas J: “In some circumstances notwithstanding that this person will continue to display the outward manifestations of “life,” that is, a heartbeat and breathing, he or she is not being kept alive in any acceptable sense. The comment has been made that in such a case the ventilator is ‘merely ventilating a corpse.’”
Courts started shifting the definition of death and relied on the Harvard brain death committee report -> irreversible end to function of all of brain (including the brain stem)
may change as Tomas J said in obiter in AUCKLAND AREA HEALTH BOARD V AG that although he was deciding the case on the basis that the patient was not legally dead and therefore he needed to look at whether the doctors had a duty to continue life support: “I do so in the conviction that Mr L deserves the description of ‘living dead’ as much as if he were brain stem dead.”
Is homicide by an unlawful act limited to crimes?
“a breach of any Act, regulation, rule or bylaw”
Not confined to a crime (Fencing of Swimming Pools Act 1987, R v Turton HC Hamilton, T45/89, 31 October 1989; Rotorua District Council Law Waters Control Bylaw 1979 and Collision Regulations, R v Myatt [1991] 1 NZLR 674)
For objective tests can personal characteristics of the accused apply?
NO THEY CANNOT
Subjective attributes of the accused (intoxication, mental impairment) are disregarded.
The reasonable person is located in the particular circumstances.
Don’t add on personal characteristics
Although age is sometimes added on
R V HAMER [2005] 2 NZLR 81 (CA)
Test is objective: Educational, experiential and habitual factors personal to the accused cannot be taken into account
There may be an exception for characteristics that made the defendant incapable of appreciating the nature and quality or the consequences of his acts or omissions
Courts decision reserved on the application of the test in “unusual cases of disability”
eg where the defendant blind or wheelchair bound
Although when it comes to using a wheelchair or smth this can be said to be part of the particular circumstances
How is dangerousness (in the R v Lee test) assessed?
Dangerousness is an objective test, has to be assessed; “within the framework of the circumstances as they appeared to the defendant at the time. So here the reasonable person must be placed in the shoes of the accused facing the situation as it then appeared to the accused.” R v Gedson HC Rotorua T51-94, 4 December 1997 (the helicopter blades case)
Knowledge is confined to facts – the reasonable person will not necessarily draw the same opinions from the facts as the accused
Explain R v Smith
Accused got into fight with another soldier and so stabbed the other one with the bayonet
Man being brought to the medical part of the camp was dropped twice and later doctors gave wrong treatment because did not realize that his lung had been punctured so the man died
Defendant arguing that if the other things happened the death would not have happened so he was not the cause
Courts said
“if at the time of death the original wound was still an operating cause and a substantial cause, then the death can properly be said to be the result of the wound, albeit that some other cause of death is also operating. Only if it can be said that the original wounding is merely the setting in which another cause operates can it be said that the death does not result from the wound. Putting it another way, only if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that the death does not flow from the wound.”
Need to look at the time of the prohibited consequence- was it still a substantial and operative cause at that time? Has smth else happened that makes the act just part of the setting?
Court said that in this case it was still an operative and substantial cause of the death
Test adopted in NZ:
R v McKinnon [1980] 2 NZLR 31 (CA) and affirmed in R v Myatt [1991] 1 NZLR 674 (CA)
Explain R v Hawkins
GODDARD J
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What is the definition for a vulenrable adult
DEFINED IN S 2 of the crimes act
Means 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.
An exclusive definition
What does the case R V KHAN [2009] 1 CR APP R 28, 370 establish
State of vulnerability does not need to be longstanding or permanent
E.g. can be temporary like when a person is injured and recovering
English case
Victim was a 19 year old foreign national who was subjected to serious violence by her husband
she was in England because of an arranged marriage
She did not speak English and had no friends
Virtually never left the house
Vulnerable because of serious physical injuries (became a vulnerable adult on the facts once she had been assaulted by her husband and incurred serious physical injuries)
The court did not rule out qualification on the basis of being young, isolated in a foreign country, without language skills and dependent on the family she was living with
When has a person assumed the care or charge of a vulnerable adult?
Not defined in the Crimes Act but it is clear from case law that the charge is equated with control
R V PROUDE HC AUCKLAND, 25 NOVEMBER 2009
“’Charge’ is a broad concept. It depends on the fact of control not how that fact came to be. It can be relevant that it arises by contract or by law, and that the one said to be in charge is in receipt of the social welfare benefit of the helpless person, but these are not essential.”
How to tell if someone has “ASSUMED THE ACTUAL CARE OR CHARGE” of a vulenrable adult
This means you are looking at the practical realities, does not need to be a formal legal relationship
The significant factors to see if someone has assumed the actual care or charge of a vulnerable adult have been found though case law
Significant factors:
Has the defendant contributed to the victim’s vulnerability?
Have they taken actions that indicate that they are assuming responsibility for the victim?
Is the victim isolated from other potential sources of help?
Cucial when it comes to strangers - that the defendant is responsible for isolating the victim from help (Taktak)
Ashworth argues that the concept of seclusion provides the most convincing rationale for triggering a duty in cases where the defendant is said to have voluntarily assumed care of a vulnerable adult (at least in cases where you've got a serious change like manslaughter)
LIVING TOGETHER IN AN ONGOING RELATIONSHIP (R v Instan [1893] 1 QB 450, R v Stone and Dobinson [1977] 1 QB 354, R v Taylor [2017] NZCA 574, R v Hamer)
In the older case law the duty is usually found:
In relation to a blood relative
Where you are living together in an ongoing relationship
Where you have done something to assume responsibility
What principle does Taktak (1988) 14 NSWLR 226 establish?
(australian case)
Extended duty to a vulnerable adult to one off encounters with total strangers
Defendant had sourced some s workers for a party for someone else and then was called from the party and asked to pick up one of the women, he got to the hotel lobby and saw her lying there semi-conscious, in clear trouble so he took her back to his friends house and put a blanket at his friend's house
He said that he had overdosed plenty of times and he thought she had just taken a little too much
She then died
Voluntarily assumed the care of the victim
She was helpless and he secluded her so that others could not help her
So he had an obligation to provide her with care
What does R v Rao [1999] ACTSC 132 (aus) say?
Victim’s partner talks about killing him - friend reassures his friends she won't (a good samaritan who takes steps to care for a person who they don't normally have care or charge for should not be held liable for stopping that care or charge solely for the fact that they have been a good samaritan HOWEVER if you as a good samaritan secluded them then you have taken actual care or charge) → Adds on to Taktak by saying that you don't seclude someone purely by reassuring others isn't assuming charge - seclusion is necessary!!)
Does the legal duty set out in s 152 apply to people in loco parentis?
R v Lunt [2004] 1 NZLR 498 |
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Explain s 155 undertaking acts that are dangerous to life
Except in case of necessity (R v Yogasakaran [1990] 1 NZLR 399)
So can raise the defense of necessity (emergency circumstances e.g. normal surgery vs surgery on a person whose leg is trapped in a collapsing building)
R v Yogasakaran antithesis rushed to draw to stabilize the patient, went to right draw but wrong drug had been put into wrong draw, he had not checked packet before administering it -> charged with manslaughter and tried to argue necessity but the courts said that this was not a necessity circumstance (saying that necessity covers people who don't have the skill giving the situation unlike doctors)
If:
you undertake to administer surgical or medical treatment; or
you do any other lawful act which may be dangerous to life (R v Myatt [1991] 1 NZLR 674)
According to Myatt it has to have a reasonable possibility of death if the care is not executed (serious harm not enough)
Then you’re under a legal duty to have and to use reasonable knowledge, skill and care when doing that act
And you’ll be criminally responsible if you fail without lawful excuse to discharge the duty (so long as you meet the other requirements for an offence)
Another defence -> can raise the defense of lawful excuse (however we don't really know what this means at this point and it has been said that it is a case by case basis atm -> if doing what any other good person in that position would do then that would be a lawful excuse)
What does R v Anderson establish?
Several things trigger a duty under section 156 including things that are dangerous in themselves and things that are dangerous when operated in a certain way -> R v anderson (doesn't even need to be a physical thing e.g. bicycle event, part of the course had cars on it but competitors had not been told -> the event organizing was thing under charge the could endanger life)
How dangerous does the dangerous thing under s156 have to be?
Same as with 155 the thing under your control has to be reasonable possibility of danger to life (not just possibly harmful)
How does HIV relate to s156?
If HIV is present in seamen, that may endanger life, and it triggers a duty under 156 even if the risk from unprotected intercourse is statistically low, but if there is a negligible risk (using a condom) that would be a low risk of life or using reasonable care
R V MWAI [1995] 3 NZLR 149
Convicted of criminal nuisance in respect to the partners he did not infect and convicted of GBH to his partners that he did infect
Accused was HIV positive
Dangerous thing = seminal fluid infected with HIV virus
Went about having unprotected sex and did not his partners about HIV
Held to owe a duty to take reasonable care of his seminal fluid
Failure to disclose to his sexual partners his HIV status or wear a condom was breach of duty
See Filitonga v R [2017] NZCA 492
One of the issues that arises today is that you might be taking medication meaning that your viral load is so low that you no longer reasonably endanger life (medical advancements from r v Mwai)
Will be a factual question for the jury
What did the case R V VANNER HC NEW PLYMOUTH, 21 FEBRUARY 2006 establish
You can say that despite things being dangerous they are not a major departure as they are normal practices in those communities
V (dad) charged with manslaughter on the basis of s 156 omission
V and daughter on quad bike (daughter on back) he was on a call about concrete and was not paying attention, daughter decided to "help" him by driving the quad and it rolled on her
4 year old daughter drove his quad bike and lost control and was crushed
Found not guilty
Prosecution brought in a whole lot of evidence around the idea that kids should not be on quads but defense did a good job and brought in the whole farming community to say that it was a fact of life that kids were on quads on farms
Do you need to be the sole person in charge or control of the dangerous thing in order to have a legal duty under s 156?
NO
R V CROSSAN HC INVERCARGILL, 28 AUGUST 1998
Defendant must have the dangerous thing in his charge or control but courts held that not necessary to have the sole charge or control of the dangerous thing
Involved a car where the owner of the car was sitting in the passenger's seat while a young, reckless, disqualified and intoxicated driver drove his car, he knew and allowed for the driver to do that
Do not have to have exclusive control of the dangerous thing
R v Turner [1995] 13 CRNZ 142
Fish packing house in a factory
Held to be in the charge of the principal shareholder and the manufacturing director of the company that owned the factory as well as the general manager of the company
Each had a share of control or charge (each had a different duty of care depending on their role)
Explain s157 (undertaking to do something that prevents danger to life)
Not used that much
Like the duties under 155 and 156 there has to be a reasonable possibility that the failure to satisfy an undertaking to act will endanger someone
Defense of lawful excuse is available
Covers situations where you have said you will do smth and you don't do it
E.g. someone employed to manage a machine to bring miners up to surface of earth and they leave it in charge of a useless person.
What is the third category of legal duties? (common law)
A DUTY BASED ON A PARTICULAR RELATIONSHIP WITH THE HARM
English cases that suggest that a person is under a duty to take reasonable steps to avoid or minimize danger they have created once they become aware of what they have done)
R v Miller [1983] 2 AC 161
Earliest case, homeless man squatting in a non occupied house, fell asleep with cigarette in hand and set matrass on fire, woke up saw what happened and then went to another room and didn’t put it out
Q was whether he was guilty for causing damage to property via fire? And it was found that yes he could be on the basis that he had an obligations to take measures that lie within ones power to counteract the impacts of a danger they created
was it just in this situation?
R v Evans [2009] EWCA Crim 650
Duty extended (most recent version)
Woman w/ younger sister who has a heroin addiction
Sister got out of rehab, decided to use and Gemma Evans gave the heroin to her sister and took the amount that would have been ok before she lot tolerance
She oded
Instead of getting her care Evans and her mother put her in the recovery position and checked on her, when they woke in the morning she was dead
Having a sisterly relationship is not enough; Rule is that "when a person has created or contributed to the creation of a state of affairs which he knows or ought reasonably to know has become life threatening, a consequent duty on him to act by taking reasonable steps to save the other's life will normally arise." -> extension from Miller and Wacker because not as simple (not completely causing the situation, only a part role (supplying)) + allows for an objective standard of knowledge (ought to have known))
In NZ probs would have used section 151 once you realized she was vulnerable
R v Wacker [2003] 4 All ER 295
Tragic decision where 60 illegal immigrants died while being smuggled across the border (air vents were closed by the man driving so no one could hear them) and when he opened the van 58 of the 60 had died
When he shut the vents he assumed a duty of care towards the passengers -> became aware that no one else's actions could stop this happening
What is interesting that this hasn't been used in NZ but the case of Lunt raises the possibility that duties can arise at common law
Explain R v Laufau HC Auckland, 2 October 2000
Relates to s 151 legal duty → failed to obtain medical treatment
Very religious parents of a teenager who had a tumor on his leg and he was told that needed to go to the doctor
He had a fear that they were going to amputate his leg and so he really didn't want to go to the doctor and his parents didn’t force him to do medical treatment
Parents were charged
Very controversial because he was an older child who had expressed clear views and the treatment wasn't necessarily guaranteed to have a good outcome
What does R v Moorhead HC Auckland, 13 June 2002 establish?
Removing your child from medical care is an omission of a legal duty
Explain the legal duty of taking reasonable steps to protect from injury
Since Lunt was decided sections 151 and 152 were reformed and there is now a specific duty to “take reasonable steps” to protect “from injury”.
Don't have to prove that injury actually occurred so long as the risk of injury is likely (it about running an unacceptable risk) -> hard to answer because peoples views of risks are different
“injury “ includes potential harm from any source
JF v Police
Involved a woman who had a baby and she had gone over to a friend's place for the night and the women put their babies to bed and then her friend's partner who was a scary gang affiliated guy came into the house raging and screaming, and she was terrified and left the house in a panic and didn't put the baby in the car seat and she got disorientated and crashed into a sign
The police charged her under section 145 despite child being unharmed
No injury necessary, so long as risk of injury is “likely”
Explain what a major departure is
The duty, once triggered, is a standard of negligence. The defendant’s behavior is measured against what would be expected of a reasonable person undertaking the relevant activity, being in control of the relevant thing or assuming the relevant type of caregiving relationship
R V MYATT [1991] 1 NZLR 674 -> what is the standard (aka who is the “reasonable person”) |
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The hypothetical reasonable person must be placed in the defendant’s circumstances (the defendant’s knowledge but not opinion of their circumstances is relevant).
R v Gedson HC Rotorua, 4 December 1997, at 10 (refitting blades on a helicopter -> if you can prove that he thought that they were the standard blades then you have to think about what a reasonable person fitting those standard ballades would think but not same if he knows they are not standard but thinks they are just as good (reasonable person may not agree)
R V FENTON [2003] 3 NZLR 439 |
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R v Q |
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R V HAMER Leading CA decision in NZ |
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R V KHAN [2009] 1 CR APP R 28 370, AT 381
Question here is about the mother and sisters of the abusive husband take reasonable steps to protect her from injury
What the court is saying that if one of these women was also subject to violence then it would be a reasonable person subject to that violence
What are the two types of negligence?
2 types of negligence
Civil negligence - negligence that is sufficient for tort law, just any type of human carelessness
Criminal negligence - more than civil negligence, a mistake so terrible that you should be convicted of it
Generally in the common law criminal negligence is required -> almost needs to be a wicked mistake
Explain criminal nuisance
Under 145, a lesser offence than manslaughter, max penalty is only one year
Doing an omission that risks harm to someone
Three cases of failure to provide safe sleeping conditions that resulted in this type of charge, in some of these cases possibly convicted of criminal nuisance rather than manslaughter because prosecution was unable to prove the causal link between sharing a bed with a child and the child's death because that needs to be proven
S145 (three requirements)
Commit an unlawful act or omission
Duty and a breach with major departure
Know that the act or omission creates a risk
Know the risk is to life, safety or health (of the public or an individual)
Breach may not need to be a “major departure” R v Vanner
It is possible (but we don’t really know yet) that the breach of your duty under s145 does not have to be a major departure
Said in obiter so that is why we don't know if that is actually the legal position
THE REASON WHY THE COURT THOUGHT THAT (ALL ABOUT STATUTORY INTERPRETATION)
What is needed for criminal liability when it comes to omissions
Omissions need to form part of the actus resus for a crime
For criminal liability it is not enough to prove an omission (just proving that there was a duty and that duty was breached this is not enough for criminal liability as a general rule) . The omission must also form part of the actus reus for a crime in which all of the other actus reus and mens rea elements have also been met on the facts.
Must be a duty
Must be a breach of the duty
That breach must form part of the actus reus for a crime
All of the other elements of the crime must be satisfied
Exceptions…
There are some crimes that both create a duty to act and a crime in one
What does that END OF LIFE CHOICE ACT 2019 allow in terms of euthanasia?
Came into effect in November 2021
Permanent resident or citizen
18 or older
Suffers from a terminal illness that is likely to end their life within 6 months
Is in an advanced state of irreversible decline in physical capacity
Experiences unbearable suffering that cannot be relieved in a manner that they consider tolerable
Is competent to make an informed decision
What is the law on doctors turning off life support (omissions)
AIREDALE NHS TRUST V BLAND [1993] AC 789 |
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AUCKLAND AREA HEALTH BOARD V AG |
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Do homicides by causing the victim to do an act which causes his death have the substantiual and operative cause test for causation?
The “substantial and operative cause test” is limited to actions by the victim that would have been reasonably foreseeable to someone in the defendant’s shoes doing what they did to the victim
Explain R v Tomars [1978] 2 NZLR 505
There was a car which had a bunch of gang guys in it and they were chasing guys on motorcycles, two of the bikes got away but one did not, to evade them he turned off all his lights but was hit by another car, immediate cause was by another car but does Tomars who was driving the car had responsibility for it
Four tests (CA asked themselves four questions):
Was the victim in fear of violence from the accused when he did what he did?
Did such fear cause him to attempt to cross the road in the circumstances and manner in which he made the attempt?
If so, was the attempt to cross the road a natural consequence of the actions of the accused. That is, was it the kind of action that could reasonably have been foreseen by reasonable and responsible persons in the accused’s shoes?
PINK IS THE VERY VERY IMPORTANT BIT!!!!!!
If so, did the act of the victim in attempting to cross the road cause his death?
Court of appeal in Tomars:
Was clear that the restriction of causation to what could have reasonably have been forseen as a consequence of the accused's conduct added a gloss on the need for the prosecution to prove simple causation. In other words, it is necessary for the prosecution first to satisfy the significant and operative cause test. The idea is to avoid the accused being held liable for unpredictable over-reactions to their behaviour.
Explain R v Lucas [2015] NZHC 2155, [34]
A VERY KEY CASE!!!!
Distilled the questions in Tomars, requiring that:
the actions of the defendant caused the deceased, from fear of violence, to act in the way he did;
that it was the kind of action that could reasonably have been foreseen by reasonable and responsible persons in the shoes of the defendant; and
that the act (the victim's act) contributed in a not insignificant way to his death.
These three qs are easy to apply to fact patterns
Does the victim of manslaughter via fright response have to act reasonably?
We do not require the victim to act reasonably in these situations.
The question is NOT whether the victim’s response was a reasonable response to the accused’s behavior BUT whether the victim’s response was reasonably foreseeably by a reasonable person in the shoes of the accused.
E.g. not an issue of if the jumped out of a moving car rather than waiting for it to stop -> it is about whether or not the reasonable person would have FORESEEN what the victim did
There is no requirement that the victim’s actions be proportional to the threat they are under: Perry v R [2018] NZCA 595.
In this case a victim was being terrorised by a bunch of men and jumped into cold shallow water to get away and he died of hypothermia -> not about what the victim did, just about whether that was a reasonably forseeable response
How much does the reasonable person have to predict in fright response situations?
The reasonable person does not have to predict or foresee all the specific details of the victim’s response: Liev v R [2019] NZCA 242.
Liev case involved a defendant binding and gagging a person and putting her into a boot of a car and she managed to get out
Her response did not need to be proportionable but had to be reasonably foreseeable but the detail (e.g. when she would get out of the car) does not need to be foreseeable)
Is the victim’s age relevant for fright responses?
What is reasonably predictable behaviour by the victim will differ depending on the age of the victim. R v Mackie [1973] 57 Cr App R 453
Toddler was scared of the person looking after them and to escape fell down stairs -> courts said that the reasonable foreseeability depends on the age of the person (e.g. 3 vs 40 would change a reasonable response)
Is the defendant’s age relevant for fright responses?
What is predictable to a reasonable person in the accused’s position is an objective question of fact. Does the standard differ according to the accused’s age? No. R v Majoram [2000] Crim LR 372
This case makes it clear that it is AN OBJECTIVE TEST
We don't add a whole lot of characteristics to the reasonable person!
That is the defendant's characteristics
Explain manslaughter by WILFULLY FRIGHTENING A CHILD OR A SICK PERSON (160(2)(E))
Cant be liable for the death of someone for influencing their mind - unless it comes under this
Talking about stress reactions or illnesses
No cases have been prosecuted under this
What is the general rule about the concurrence of Actus Reus and Mens Rea?
The Rule: The actus reus and mens rea must occur at the same point in time before criminal liability can be attributed to the accused.
Otherwise cannot give moral fault to the offence
But there are a number of exceptions and qualifications…..
Explain what happens with the actus reus and mens rea when the act proceeds the intent. How do we solve the concurrence issue?
You first do the actus reus by mistake and then, when you realise what you have done, you form the mental element:
Doctrines created to work around this
The continuing act doctrine: Fagan v MPC [1969] 1 QB 439, [1968] 3 All ER 442
Does not work in a bunch of cases but works in this specific set of facts
Accused accidentally drives on poleman's foot and then when found out did not move away
Charged with assaulting a police officer
Concurrence issue
Because was an accident at first
When made contact with the policeman it was just an accident so no mens rea -> doctrine of continuing act doctrine helped to get though this
Continuing to make contact with policeman with intention
So once started knowing what was doing but did not stop
Omissions theory: Did you have a duty to act that coincided with the mens rea? R v Miller [1983] 2 AC 161
Fell asleep with cigarette in hand making matrass on fire, then woke up and moved to a different room
Omissions theory was used rather than the contributing act doctrine
Had to do smth to respond to harm created once become aware of it
What happens when the intent precedes the act? How do we solve the concurrence issue?
The defendant forms the mens rea first but when they commit the actus reus they no longer have the mens rea (acting under a mistaken view of the facts - often they believe that they have already achieved their intent):
The complex single transaction: Thabo Meli v R (Privy Council) [1954] 1 WLR 228
Most famous of a serious of cases
Four men took the victim into rural area with plan to beat him to death
Beat the guy to death and then to cover it pushed him off the cliff he died at the bottom from exposure
Causation theory: R v McKinnon (NZ) [1980] 2 NZLR 31
Thabo Meli: Possible readings
If you have a pre-conceived plan then you need only have mens rea at one particular link in the execution of the plan.
There was only one transaction. Insufficient time had elapsed between the actions of hitting the victim and pushing him off the cliff for the two actions to be treated as having been done on separate occasions.
This was the approach in R v Church [1966] 1 QB 59 (no preconceived plan).
Church had no preconceived plan -> though had killed girl by beating her to death for mocking him for not pleasing her sexually - then put her in water to remove her and she drowned
Does Thabo Meli apply in cases of reckless murder?
Ramsay (NZ) [1967] NZLR 1005
Thabo Meli applies in cases of intentional murder where “it is impossible to divide up a course of conduct into separate acts.”
It does not apply to reckless murder. Recklessness is a weaker state of mind. An intention can be so obvious that it is possible to say that every action on a particular occasion was “directed by that intention.” It is not possible to say that about a reckless state of mind. (Note R v Kumar said this was obiter dicta).
Explain Kumar v R (NZ) [2016] NZCA 329; [2016] NZSC 147
The victim; Mr Prasad
Most recent case in nz
Kumar: Pathologist
Accused in case assaulted Mr Prasad and may have thought that he was death at this point but he was actually alive when he was set alight and his death was caused by thermal injuries.
Convicted of intentional murder and then appealed
Crown could not rule out that he was unconscious at this point because of a prior assault and that the defendants may have reasonably believed that he was dead.
Could have been a classic Thabo Meli case
The defendants: Kumar and Permal
Had to consider if Ramsey was still good law in NZ
Kumar (CA upheld by SC): Don’t need a preconceived plan
“Thabo Meli’s authority is beyond question: parties cannot avoid criminal liability simply because they
believe mistakenly that they have achieved their objective by one act but in fact achieve it by a later and different act if both acts can be treated as logically successive or connected within the one continuous course of conduct attributable to or motivated by the same murderous intent. Depending upon the circumstances, the two acts are treated as one irrespective of ostensible temporal or physical separation.”
SC rejects notion that needed a preconceived plan for Thabo Meli
See above for exactly what was said
Kumar: Question is whether there is “one continuous transaction”
“an appreciable time difference between the two acts did not absolve either participant from criminal liability, especially where the second act was designed to conceal the commission of the first. The issue is not determined by counting the number of minutes separating the two acts. Nor is it determined by counting the physical distance between what is said to be the place where the unlawful act was committed and the place of death. The issue, we repeat, is determined by an inquiry into whether the two material acts were sufficiently related to form part of the one continuous transaction such that both can be treated as motivated by the same murderous state of mind.”
CA also said that Thabo Meli applies when you have acts happening throughout a period of time (one continuous transaction) they can all apply to one mens rea
Unsettled -> application of Thabo Meli to recklessness was said in obiter
Explain sustained attacks and the impact this has on the concurrance of actus reus and mens rea
No separation of acts
R v Kengike HC Rotorua, 30 April 2007, [17]:
Woman died as a result of a sustained attack from her ex partner
He below was said:
The authorities.. make untenable a submission that the Crown should isolate out some particular act from an ‘indivisible series of acts’, such as a sustained or ongoing assault. The focus must be on whether the relevant mens rea was present when the ‘series of acts’ (here an assault) was being carried out.”
What does R v McKinnon (NZ) [1980] 2 NZLR 31 tell us?
Causation theory:
Substantial and operative cause -> original causes are still substantial and operative so still impacting the person and eventually causes the death (e.g. throw off cliff, cant walk away die)
R v McKinnon (NZ) [1980] 2 NZLR 31
Struck the deceased on the head with a fence paling (knocking him unconscious) and dragged him to a telephone booth to rob him.
Victim died by drowning in his own blood – blood nose caused by a minor injury to his nose while being dragged over to the telephone booth rather than being hit over the head.
Arguably did not have the mens rea at the time of the minor injury
Did have the mens rea when hit him with the fence paling
Blow with the fence paling still a “substantial and operative cause of death”. Died from a blood nose because he was unconscious from the blow to the head.
This got around the limitations of Thabo meli
What are the types of mens rea?
Intention (judged subjectively)
For the most serious offences
Knowledge (judged subjectively)
Knowing a particular circumstance to be true
Recklessness (judged subjectively)
Conscious taking of a risk
Negligence (objective)
Falling short of the standard of a reasonable person
What is subjective mens rea?
Subjective – need to prove that the accused actually had a certain state of mind. Does not matter what most other people would have thought or known had they been in the defendant’s circumstances – the issue is whether the accused actually had that state of mind. Eg, intention, knowledge, recklessness
Does not matter if other people had this, only about the mind of the defendant and whether they had the intention, knowledge or recklesness
Criminal law is often about serious offences -> most serious offences have mens rea with one of the subjective states of mind because harder to figure out so prosecution has to look at what they did and said so jury can judge if they had the state of mind needed
What is objective mens rea?
Objective – The defendant is held to a standard external to themselves. The accused is judged by the state of mind that someone else (for example, the hypothetical reasonable person) would have had. Eg, negligence
What are essential questions to ask when looking at mens rea?
What mens rea standard is required for each element of the actus reus?
Are additional mens rea standards specified?
Did the defendant act with the mens rea required?
If the mens rea standard is subjective, what facts give us insight into the defendant’s state of mind at the time they committed the actus reus?
How to we infer a subjective state of mind?
In most instances there is no direct evidence of the defendant’s state of mind and mens rea must be inferred from what the defendant did or said in the context.
….
Have to prove what is happening in the persons mind, very hard to do unless they confess to the crime
Have to infer from what is said
Explain intention (MR)
Intention: Definition -> MOTIVE DOES NOT MATTER JUST NEEDS TO BE THE INTENTION TO DO THE THING
2 types, direct and oblique/indirect
Purpose, desire to bring something about, whether or not success is thought to be likely (direct intention)
Most ordinary and direct form
Whether they wanted that actus reus to happen -> does not matter if the person thought they would be successful or not
Knowledge that a result is virtually certain, even if it is not the accused’s purpose or desire to bring it about (oblique intention)
Not about risk or recklessness
Is about the fact that the actus reus will almost certainly result (know that it will) even if not intention -> stretches out the intention a little further (is not knowledge or reckesness is INTENTION)
E.g. setting a house on fire and a person gets killed
Maybe did not intent to kill the person but the actus reus was almost certainly going to result
Intention is for the highest level offences
NZ authority: R v Wentworth [1993] 2 NZLR 450, per Fisher J
Explain R v Wentworth [1993] 2 NZLR 450, per Fisher J
“In a legal context “intention” is normally taken to embrace both ultimate (desired) consequences and incidental (undesired but foreseen) consequences so long as the latter are foreseen with sufficient certainty when the course of action is deliberately embarked upon. “Direct intention” may be used to refer to the former and “oblique intention” to the latter. There is room for argument as to the degree of certainty with which the accused must predict the incidental consequence (.. “virtual” or “moral” certainty is sufficient; query anything less) but in principle both types of intention qualify. Contract killers usually want money, not the death of their victims per se. Receipt of money is the ultimate, desired, consequence. Death of the victim is the incidental, perhaps regretted consequence.”
Practice for Mens rea: s200 Poisoning with intent
“…with intent to cause grievous bodily harm to any one, administers to or causes to be taken by any person any poison or other noxious substance.”
A father sets out rat poison under the house. His child eats it and dies.
Is mens rea satisfied for s 200?
Pink is the mens rea
No, there was intention to kill the rats not the child
What do you have to ask when looking at oblique intention?
Whether the consequence was a virtual certainty (objective)
Whether the consequence was foreseen by accused as a virtual certainty (subjective) – this is what is required as intention is assessed subjectively
Explain knowledge (MR)
Accepting, assuming or having no serious doubt.
Belief could equate to knowing; but mere suspicion is not enough.
Suspecting = not enough! (R v Crooks)
BELIEF CAN = knowing
ACCEPTING = knowing
Knowledge often arrises when it comes down to circumstances
E.g. knowing if reciving stolen goods (did you know that the goods were stolen?)
Explain willful blindness when it comes to the mens rea of knowledge
Suspecting something is the case but not wanting to know and so deliberately refraining from checking. Being purposefully ignorant about something.
In some cases this has to be looked at -> is this enough to show knowledge or is it just suspicion???
May be evidence from which one could infer, depending on the facts, actual knowledge.
R v Crooks [1981] 2 NZLR 53
Soles v R [2015] NZCA 32
Explain forgotten knowledge when it comes to the mens rea of knowledge
MARTIN V POLICE (1987) 3 CRNZ 373
“Criminality or want thereof is not to be determined by the lottery of the timing of apprehension, and in terms of whether memory is oscillating between conscious recall and unconscious mental storage. The nature of the type of case and of the defence of absence of knowledge requires a more specific evaluation of the nature of the defendant’s absence of recollection. In order for the defence to succeed there must be a total absence of memory.”
(Note NZ case: Police v Rowles [1974] 2 NZLR 756 and Eng decision: R v Martindale [1986] 1 WLR 1042)
Question = completely extinguished or just not at the forefront of the mind?
In NZ we allow for this
If completely forget knowing it
Then can sometimes be said that you did not know
E.g. in possession cases of drugs
Cases like Martin say that this is very rare
Explain recklessness (MR)
RECKLESSNESS: DEFINITION
SUBJECTIVE -> Knowledge of a risk and the decision to run that risk
The risk is not socially justifiable
Conscious taking of an unjustified/unreasonable risk
Only the risk is looked at in an objective way (unjustified/unreasonable) but is subjective for actual recklessness because needs to be known by the person
CAMERON V R [2017] NZSC 89
Recklessness is established if:
(a) The defendant recognised that there was a real possibility that:
(i) his or her actions would bring about the proscribed result; and/or
(ii) that the proscribed circumstances existed; and
(b) having regard to that risk those actions were unreasonable.
What is the impact of intoxication on the mens rea of an offence?
Intoxication is not a formal defence
Intoxication is a subjectively altered state of mind which is just one of a number of factors to be considered in deciding whether the accused actually performed the actus reus whilst possessing the mens rea for a particular crime or were able to meet the particular standards of a relevant defence.
THE REASONABLE PERSON IS ALWAYS SOBER AND SO INTOXICATION IS ALWAYS IRRELEVANT -> SO NEVER APPLIES TO OBJECTIVE TESTS
R v Kamipeli [1975] 2 NZLR 610
“Drunkenness is not a defence of itself. Its true relevance by way of defence, so it seems to us, is that when a jury is deciding whether an accused has the intention or recklessness required by the charge, they must regard all the evidence, including evidence as to the accused’s drunken state, drawing such inferences from the evidence as appears proper in the circumstances. It is the fact of intent rather than the capacity for intent which must be the subject matter of the inquiry.”
Not asking about the drunkenness getting in the way of being able to have the mens rea
About whether they had it even without the drunkenness
Sheehan (1975) (Eng.) (cited with approval in Kamipeli):
“A drunken intent is still an intent”
Drunken mens rea is still a mens rea
“the mere fact that the defendant’s mind was affected by drink so that he acted in a way in which he would not have done had he been sober does not assist him at all, provided that the necessary intention was there. A drunken intent is nevertheless an intent. Secondly, and subject to this, a jury should merely be instructed to have regard to all the evidence, including that relating to drink, to draw such inferences as they think proper from the evidence, and on that basis to ask themselves whether they feel sure at the material time the defendant had the requisite intent.”
Disproving mens rea
The mere fact that a person does not remember doing something does not mean that they did not intend their behaviour at the time (alcoholic blackout – short term memory loss)
Intoxication is only relevant to subjective states of mind (e.g. intention, recklessness, knowledge)
Intoxication is NOT relevant to objective states of mind - the reasonable person is always sober (i.e. it is not relevant to objective mens rea states)
Relevant to the subjective component of the defences (but not the objective part of the defence)
Self-defence
Compulsion
Insanity
Explain mens rea and involuntary intoxication
R v Kingston [1994] QB 81 (CA); [1995] 2 AC 355 (HL) (Eng)
Situation where defendant was arguing that it was not his fault that he got intoxicated (drink was spiked)
They look at in spite the intoxication would the mens rea exist
Caveat: Cameron v R [2021] NZCA 80
In obiter, the Court of Appeal pointed out that the courts have not “squarely confronted the policy question whether self-induced intoxication is a permissible defence to crimes of basic intent.”
In other words, the New Zealand Court of Appeal has reserved for itself, the right to hear argument on whether, after all this time, it could still determine that the English approach in Director of Public Prosecutions v Majewski is the correct approach to apply in New Zealand.
Saying that it may be that the harsher English approach should be taken
Only obiter though
Explain sentencing and voluntary intoxication
Is not relevant to penalty: section 9(3) of the Sentencing Act 2002
“despite subsection (2)(e), the court must not take into account by way of mitigation the fact that the offender was, at the time of committing the offence, affected by the voluntary consumption or use of alcohol or any drug or other substance (other than a drug or substance for bona fide medical purposes).”
A harsh approach
What are the classifications of offenses (MR)?
Millar v MOT [1986] 1 NZLR 660 sets out three offence classifications:
1. Mens rea offences
2. Strict liability offences
3. Absolute liability offences
Truly criminal offences:
Require mens rea
Strict liability offences:
Prosecution must prove actus reus but need not prove mens rea in relation to one or more elements of actus reus. Defendant may prove defence of absence of fault. i.e. – not negligent; Civil Aviation Department v MacKenzie [1983] NZLR 78 (defendant flying low over country side and fin got caught in electric wires and did not notice and flew -> people were put in danger because of this )
Strict liability is a creation by the courts in a sense
Courts in mackenzie relied on Canadian approaches
England does not have strict liability
Absolute liability offences:
Offence complete on proof of actus reus. No requirement to prove mens rea and the accused cannot claim the defence of absence of fault.
IS THERE A FOURTH CATEGORY? – PRESUMED MENS REA
Cameron v R [2017] NZSC 89
Obiter where they were wondering if there is a fourth category (this would only apply to designer drug offences)
The Supreme Court resurrected a fourth category (presumed mens rea) – at least for certain drug offences.
If no evidence pointing to a lack of mens rea then mens rea is presumed
If there is evidence suggesting a lack of mens rea then the prosecution must prove the relevant mens rea beyond reasonable doubt (in this case: intention or recklessness)