Law 201 Test

What is the first step you must take when establishing a homicide, and what section is this in?

s158 - whether one human being has directly or indirectly caused the death of another human being

What are the three grounds for a culpable homicide under s160?

s160(2)(a) culpable homicide by an unlawful act, s160(2)(b) culpable homicide by omission, s160(2)(d) culpable homicide due to fright response

What are the three questions we must ask when establishing whether there has been an unlawful act homicide?

Whether the defendant has committed an unlawful act under s(2) (assess the AR and MR of the unlawful act, or analyse if it is strict liability), whether the act was objectively dangerous and whether the unlawful act caused the deceased’s death

What is the case that sets out the test for whether the unlawful act was objectively dangerous? What is the test?

R v Lee - Whether a reasonable person would recognise the unlawful act was likely to do more than trivial harm to someone - modified the test first set out in R v Fleeting

What is the legal causation test and what cases does it come from?

Substantial and Operative Cause Test - Smith (UK), Myatt, McKinnon

What are the three questions we must ask when establishing whether there has been a culpable homicide by omission?

Whether the defendant had a legal duty to act, whether the defendant has breached the legal duty, and whether the omission caused the death of the deceased.

What is the standard to which the defendant must have breached a duty to be liable under a culpable homicide?

s150A - must be a major departure

What is the test for whether the omission caused the death of the deceased? What case does this come from?

R v Kuka: “But for the defendant’s omission the deceased would not have died or would probably not have died.”

What are the three quesitons we must ask when establishing a culpable homicide by fright response?

Whether the actions of the defendant caused the deceased, from fear of violence, to act in the way they did; whether the actions of the deceased were the kind of action that could reasonably be foreseen by a reasonable and responsible person in the shoes of the defendant; whether the deceased’s actions caused their own death - did their own actions contribute in a not insignificant way to their own death?

For a strict liability offence to be the basis of an unlawful act homicide, what breach of that offence is required?

Was the failure to take reasonable steps to avoid the occurrence of the AR a major departure (gross negligence)?

What cases identified the three elements we use to determien a culpable homicide by fright response?

R v Tomars, distilled by R v Lucas

When does the duty for s152 arise?

The accused is a parent or person in place of a parent, the child is under the age of 18 years and the child is in his/her actual care or charge

Does s152 apply to those in “loco parentis”? What case says this?

R v Lunt was inclined to think that the common law duty to protect extended to someone in loco parentis but did not express a concluded view

What needs to be established for a duty under s151 to apply?

A person must have actual care or charge of an adult, that adult must be unable to provide themselves with necessaries and that adult must be unable to withdraw themselves from the care or charge of another person.

What is the common law duty that can be the basis for an omissions manslaughter? What cases established it?

Miller, Evans, Wacker: Duty to take reasonable steps to minimise a danger that the accused has created, once they have become aware of what they are done. R v Lunt established that common law duties are preserved by s20(1).

What does R v Proude stand for?

s151 - charge is control, can arise by contract or law but can also arise in other ways, must look at practical realities

What does JF v Police stand for?

s152 - duty to protect from injury - there is no need for the injury to actually occur so long as the risk of injury is likely

What does the case R v Myatt stand for?

s155 - duty to use reasonable knowledge, skill and care in doing an act dangerous to life - the activity has to be one where there is a reasonable risk of death (in cases where this isn’t applying to medical treatment), not enough for there to be a risk of injury/remote possibility of death - ALSO if you are undertaking a proffessional task you are obliged to meet the ordinary standards of the profession - if you have more expertise you are not held to a higher standard

What does R v Crossan stand for?

s156 - duty in charge of a dangerous thing - the person does not have to have exclusive control of the dangerous thing

What does R v Hamer stand for?

Wife took a dangerous dose of the husband’s methadone, he was held to have the “charge” of a vulnerable adult, by failing to summon medical care he had failed to provide her with the necessaries. His depression/addiction were not applied to the reasonable person = personal characteristics are not grafted onto the reasonable person. There may be an exception for characteristics that made the defendant incapable of appreciating the nature/consequences of their acts/omissions.

What does R v Gedson stand for?

The defendant’s knowledge, not opinion, is relevant + dangerousness must be assessed by “the reasonnable person must be placed in the shoes of the accused facing the situation as it then appeared to the accused”

What does R v Khan stand for?

If the defendant is a victim of ongoing violence/abuse then the reasonable person should also be in those circumstances as what is to be expected of them is different.

What sections does s150A apply to?

The duties in ss151-157 and any unlawful act referred to in s160 where the unlawful act requires negligence/is a strict or absolute liability offence

What does Taktak (Australian) stand for?

A man voluntarily assumed the care of the victim - she was helpless and he secluded her so that others couldn’t help him - voluntary assumption of aid and isolation meant that he had a duty toprovide medical assistance or prevent her death - if he had just seen her but not isolated her he wouldn’t have this duty

What does R v Rao (Australian) stand for?

Court rejected idea that a person who sought to intervene in order to protect a person in danger had necessarily established a duty of care - duty isn’t just because victim is helpless, they have to be isolated and others must be prevented from helping

What happened in R v Q?

The mother accidentally smothered her baby when she fell asleep breastfeeding - had history of alcohol and drug addiction as well as starting pnuemonia - only the alcohol and sleeping pill she took were considered the major departure as they were the only things that were her fault

What does R v Mwai stand for?

Duty in charge of a dangerous thing has an expansive meaning - in this case it included HIV positive seminal fluid

What happened in R v Hawkins?

Driver had a seizure whilst driving and caused the death of someone else, but also had an invalid license - tried to charge her for unlawful act manslaughter bc of license but it had nothing to do with the crash

What is the standard set out in Smith for a second cause of death to remove the first cause from relevancy?

“Only if the second cause is so overwhelming as to make the original wound merely part of the history can it be that the death does nto flow from the wound.”

What does R v Young stand for?

The accused had an argument with the victim and assaulted him, the victim had a severe heart disease the accused didn’t know about which the assault trigged. Judge found that the accused was still the substantial and operative cause even though he didn’t know about the heart condition.

What does Vaughan v R stand for?

A deceased’s own negligence will not generally break the chain of causation even if they are an additional cause of death - unless the defendant’s is already “spent”

What does R v Blaue stand for?

A victim’s decision not to get medical treatment for the defendant’s actions does not break the chain of causation - codified in s165

What does R v Kennedy (No 2) stand for?

A conviction for unlawful manslaughter could not be based on supply alone - “The free, deliberate and informed intervention of a second person […] is normally held to relive the first actor of criminal responsibility.”

What are the exceptions to the rule in Kennedy (No 2)?

Young/vulnerable people/people who are not fully responsible for their actions, situations involving duress/necessity/deception/mistake, and cases where the defendant directly injects the victim with controlled drugs

What does R v Leaitua stand for?

Disagreed w Tema (earlier NZ case) and followed Kennedy (No 2) - supply alone without more is not inherently dangerous, cause of death was not the unlawful supply of cocaine but the woman’s voluntary ingesting of it

What does R v Pagett stand for?

Fright response - the defendant can be responsible for the victim’s behaviour and/or third party behaviour if it is a reasonable defensive response to the threat they pose

What does Liev v R stand for?

The reasonable person does not have to predict or foresee the specific details of the victim’s response

What does Perry v R stand for?

Fright response - there is no requirement that the victim’s actions be proportionate to the threat they are under

What does R v Mackie stand for?

Fright response - what is reasonably predictable behaviour by the victim will differ depending on the age of the victim

What does R v Majoram stand for?

The standard of what is predictable to the reasonable person in the accused’s position is an objective standard of fact and doesn’t differ according to their age.

What does R v Cheshire stand for?

Medically negligent treatment as a result of the accused’s actions do not excuse the accused actions 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 acts as insignificant”

In NZ is turning off life support culpable homicide or is it exempt by way of being medical treatment?

Conflict - R v Trouson says it is medical treatment, R v Tarei says life support isn’t medical treatment - Airedale NHS Trust v Blans says that doctors duty is to act in their patients best interests and this may be to turn off life support

When is wilful blindness enough to fulfill the mens rea of knowledge and not just suspicion? What is the case for this?

When the failure to enquire is so deliberate in the circumstances that one can infer that the defendant really knew the situation. R v Crooks

When do we allow for knowledge to be forgotten? What is the case for this?

When it is “completely extinguished from their mind “ - Police v Rowles

What is the difference between recklessness and negligence?

Subjective conscious taking of an unjustified risk vs running a risk that would have been obvious to a reasonable person in those circumstances

What types of murder does the doctrine of transferred malice apply to?

Intentional murder or reckless murder (b) - bodily injury

In NZ how do we treat intoxicaiton?

No difference between voluntary and involuntary intoxication, question of whether despite the intoxication the person still had the mens rea. The “reasonable person” is always sober

What does R v Wentworth stand for?

Defines direct and oblique intention: desired consequences vs undesired but foreseen circumstances -

What does Cameron v R stand for?

Recklessness is a sufficient but minimum degree of fault where statute doesn’t otherwise specify the mesn rea

What is the test for recklessness established in Cameron v R?

The defendant recognised that: his/her actions would bring about the proscribed result; and/or that the proscribed circumstances existed; and having regard to that risk those actions were unreasonable.

What does Chandler v Police stand for?

Doctrine of transferred malice - the doctrine transfers the mens rea the accused actually possess. It does not transform it

What does R v Kamipeli stand for?

Intoxication - “It is the fact of intent rather than the capacity for intent which must be the subject matter of the inquiry”

What does Sheehan stand for?

“A drunken intent is nevertheless an intent.”

What defence is open for strict liability offences? What does this involve?

Defence of absence of fault - that the defendant has taken all reasonable steps to avoid an offence (not sufficient that they were not at fault in the moment when the offending occurred)

What does Sherras v De Rutzen stand for?

A strict liability offence can be determined by the words of the actual statute creating the offence

What do Lim Chin Aik v R and Sweet v Parsely?

Strict liability offences - mens rea is the default position unless it is clearly outweighted by other factors

What do Waaka v Police and Alphacell Ltd v Woodward stand for?

Strict liability offences - when deciding whether the presumption of mens rea is overridden a key question is is the offence truly criminal or is it a public welfare/regulatory tupe of offence

What does R v Strawbridge stand for?

Strict liability offences - the presumption of mens rea can be overriden when looking at what type of penalty is imposed

When will something be an absolute liability offence? What case says this?

Only when there are express words or it is a necessary implication

What does Millar v MOT stand for?

Sets out the three offence classifications

What does Police v Starkey stand for?

Strict liability, defence of absence of fault - the defendant is not obliged to demonstrate that they were entirely without fault, simply tht their decisions were reasonable in the circumstances that were known to them at the time

What does Tifaga v Department of Labour stand for?

Strict liability, defence of absence of fault - the defendant must take allr easonable steps to avoid an offence

What does Civil Aviation Department v MacKenzie stand for?

Strict liability offences - the burden of establishing absence of fault rests on the defendant to the balance of probabilities - and is an objective test as to what the reasonable man would have done

What does Buchanans Foundry v Dept. of Labour stand for?

Strict liability - the defence of absence of fault is not to be judged with the benefit of hindsight but on the basis of what was known at the relevant time

What does Murray Wright Ltd stand for?

Companies cannot commit murder or manslaughter (but it remains unclear whether companies can be secondary parties to a principal who carries out murder)

What does R v Piri stand for?

Reckless murder (b) - the recklessness must be established in the bodily injury that they intended - you don’t have to foresee the exact form of death just the risk of death + “likely” requires foresight of a real/substantial risk of death “such as could well happen”

What does a stupefying thing in s168 felony murder include?

Anything that makes someone not in their right mind - can include substances like MDMA and doesn’t have to mean unconsciousness

What does Fagan v MPC stand for?

Continuing act doctrine - man who reversed onto the police officer’s foot - when he first reversed onto the foot it was an accident - but this was a continuing act of assault so if at any point he formed the mens rea then the offence is complete

What does Thabo Meli stand for?

Complex single transaction - intended to kill someone via assault but he actually died when they threw him off the cliff after - they were still found to have mens rea for murder as this was only one transaction, the assault and the throwing him off the cliff shouldn’t be treated as two separate actions

What does Kumar v R stand for?

Distinguished Thabo Meli, saying that there doesn’t need to be a preconceived plan for events to be a single complex transaction, if both acts can be treated as logically successive/connected within one continuous course of conduct then it is a single transaction - also said Thabo Meli applies to recklessness

What does R v Kengike stand for?

Sustained attacks - in cases where there is no evidence for suggesting that during this episode of violence the state of mind has varied, it is superficialy to separate out the actions to determine concurrence

What does R v McKinnon stand for?

Concurrence via causation - struck the deceased on the head and he died by drowning in his own blood - the blow was still a substantial and operative cause of death because it is why he drowned - therefore him having the mens rea for the initial blow was enough even though his death was caused by something else

What does Auckland Area Health Board v AG stand for?

Potentially redefining when someone is dead - usually it means brainstem death but here the victim’s brain was totally disconnected from his body - considered them as much a “living dead” as someone with brainstem death

What does R v Fenton stand for?

A driver was driving without a license and not wearing a seatbelt - gross negligence but that did not actually cause death - the major departure itself has to cause death, not an amalgamation of omissions which are a major departure but do not cause death

What does Shadrock v R stand for?

Reckless murder (d) unlawful act - the fatal act can occur after the elements of the offence are complete if the offence has not actually conncluded - e.g. in this case the defendant hit the victim with a car after robbing her but it was held to still be part of the unlawful act as she was pursuing him directly after the theft occured