CRIM SEM 1 CASES

R v Lee

An unlawful act must be dangerous
An act is dangerous if a reasonable person can see that the act is likely to do more than trivial harm

R v Smith

British case: At the time of death the defendant actions must be a substantial and operating cause of the death even if other things play a role

For the chain of causation to be broken by a new intervening act, it must be something so overwhelming it made the original act ‘merely part of history’

R v McKinnon

NZ Case adopting Smith: defendant’s actions must be a substantial and operative cause of the death

R v Myatt

Also adopts Smith

For section 155

• ‘is or may be dangerous’ = a ‘reasonable posibility of death if care is not taken’ - serious injury is not enough

• standard of care is not raised if you have higher skills. defendant just has to meet the reasonable standard for what they hold out to be when performing the act

Millar v Ministry of Transport

Establishes strict liability offences where only actus reus needs to be proved for conviction

strict liability offences are usually regulatory or a specialised activity

Sherras v De Rutzen

To determine whether an offence is strict liability, look at the words in the statute
- look at surrounding section, purpose, mens rea keywords

Police v Starkey

To determine whether an offence is strict liability, look at whether theres any overriding judicial history

Lim Chin Aik v R

offences have a presumption of mens rea, the subject matter, context, and wording of a statute can displace this presumption.

Sweet v Parsley

offences have a presumption of mens rea, just because the provision doesn’t explicitly say so doesn’t mean its strict liability.

Waaka v Police, Alphacell ltd v Woodward

to determine whether an offence is strict liability, look at whether the offence is regulatory in nature or if its truly criminal

Fisheries Inspector v Wareham

To determine whether an offence is strict liability, look at whether there is a stigma attached to a conviction

Hobbs v Winchester Corp

To determine whether an offence is strict liability, look at whether it would be difficult to enforce without being strict liability

R v Strawbridge

To determine whether an offence is strict liability, look at the range and severity of the sentence - if its less severe, the offence is more likely to be strict liability

Civil Aviation v Mackenzie

establishes the absence of fault defence - did the defendant take reasonable steps to avoid the occurrence of the actus reus?

Tifaga v Department of Labour

defendant must take all reasonable steps to avoid offence. Not sufficient to prove that defendant wasn’t at fault in moment when offending occurred.

Buchanans Foundry v Dept of Labour

For strict liability, whether the defendant took all reasonable steps to avoid the actus reus should be judged on the basis of what was known at the relevant time

what do you need to prove to be able to use a strict liability offence as basis for homicide?

That the failure to take reasonable steps to avoid the occurrence of the actus reus was a major departure from the standard of care expected of a reasonable person in the circumstances - as per s 150A

R v Kuka

Causation test for omissions - but for the defendants omission, the deceased would or would probably not have died

accused must be personally aware of risk of abuse

R v Lucas, distilling R v Tomars

The actions of the defendant caused the victim, from fear of violence to act in the way they did

The victims actions were the kind of action that could have been reasonably foreseen by a reasonable and responsible person in the defendants shoes

The actions of the victim contributed to their own death

R v Mackie

For fright response, the victims reasonably predictable behavior will differ depending on their age

Liev v R

For fright response, the reasonable person doesn’t have to foresee or predict all the specific details of the victims response

Perry v R

For fright response, there is no requirement that the victim actions need to be proportional to the threat

Novus actus interveniens

An event so overwhelming that it breaks the chain of causation/puts what the accused did so much into the history of what happened

R v Ten Bohmer

Even when a causal link is established, the free, deliberate, and informed act of a third party will break the chain of causation

R v Young

victim and defendant got into an argument, defendant assaults victim, victim dies of heart failure. It turns out that the victim had a heart condition with means that emotional/physical exertion can cause cardiac arrest. medical evidence shows that the emotional exertion of the argument caused the arrest - court found defendant was still a substantial and operative cause of death

actions of the defendant do not have to be the main/sole cause of death, can be contributory cause so long as it is substantive and operative. - used in relation to a preexisting medical condition in the victim

Vaughn v R

victim was doing maintenance on a badly installed and designed lift, the victim pulled out a tray he was instructed not to, the lift malfunctioned causing the victims death

victim’s own negligence will not generally break the chain of causation even if it contributes - there can be multiple significant and operative causes

defendant doesn’t have to have complete or exclusive charge or control, its sufficient to have a share of control if obligation spreads amongst multiple people

R v Blaue

victim refused life saving blood transfusion on religious grounds after being stabbed by the defendant and died

victims failure to do something which prevents the defendants actions from killing them is not a break in the chain of causaiton

statutory provision for when victims refuse medical treatment

s 165: “everyone who by an act/omission causes the death of another, kills that person, although death could have been prevented by resorting to proper means

R v Kennedy (no 2)

defendant filled syringe of heroin, gave it to the victim and left the room. the victim injected the syringe, overdosed and died

manslaughter can’t be based on supply alone if a fully informed adult of sound mind freely and voluntarily self-administers the drug and dies as a result

the free, deliberate, and informed intervention of a second person intending to exploit a situation created by the first but not acting in concert breaks the chain of causation.

exceptions to kennedy

young, vulnerable person, people not fully responsible for their actions. situations involving duress, necessity, deception

R v Tema

doesn’t follow kennedy, in a drug supply case, mansalughter can be based on the defendant being a party to the victims offence of consuming a controlled drug

R v Leaitua

Defendant supplied victim with drugs to transport to NZ, victim ingested the packages of drugs to courier them across the border, the packages ruptured inside her causing her to die by overdose

affirmed kennedy no 2, supply alone, consumed freely/voluntarily by the victim cannot form basis of manslaughter because death was not caused by supply, it was caused by the victim voluntarily ingesting the drugs.

R v Pagett

the defendant uses the victim as a human shield in a shootout with the police. the defendant shoots at the police, police shoot back but hit the victim

defendant can be responsible for victim’s behaviour and/or for third party behaviour is it is a reasonable defensive response to the threat the defendant posed.

R v Cheshire

Victim dies in hospital of complications from treatment to a gunshot would caused by the defendant 2 months ago

negligent medical treatment to the victim only breaks chain of causation if it was so independant of his acts and such a strong factor that the defendants actions become insignificant

R v Kirikiri

issue is whether the defendant’s actions were a substantive and operative cause of death, notwithstanding interim medical treatment.

statute for negligent medical treatment

section 166: everyone who causes bodily injury which is dangerous to another person resulting in death kills that person even if the immediate cause of death was treatment, proper or improper applied in good faith

R v Trounson

life support is medical treatment under section 166 but nonethless, withdrawing life support doesn’t break chain of causation because withdrawal of life support does not cause death but prevents the prolongation of life by artificial means

R v Tarei

life support is not treatment under s 166 but nonethless, withdrawing life support doesn’t break chain of causation because withdrawal of life support does not cause death but prevents the prolongation of life by artificial means

R v Fleeting

defendant pushes the victim onto a busy road and the victim is almost instantly run over and killed by a car

court found that the third party running over the victim didn’t break the chain of causation because the driers actions were free or independant of the situation the defendant had set up, he could not stop the car in time on a busy road

For a third party action to be NAI and break the chain of causation

• third party action must be free deliberate and informed

• third party must knowingly intervene without being induced/constrained by a situation the defendant had created

R v Proude

whether someone has charge over a vulnerable adult depends on the fact of control, not how the control came to be - there is no need for legal relationship/care arrangements

R v Taylor, R v Instan

defendant doesn’t have to take comprehensive role in victims care, living together, the victim being isolated, and the defendant having direct day to day responsibility for the victim is enough for care and charge

R v Hamer

defendants wife consumed a large amount of methadone and collapsed but defendant didn’t get medical help immediately although he knew she had taken a dangerous dose

care and charge can rise from marriage, and the victim being isolated in their shared home

The reasonable person test in section 150A is objective, defendants personal characteristics can’t be grafted on to reasonable person. defendants methadone addiction and depression could not be applied to reasonable person

to decide whether behavior is a major departure evidence of defendant’s subjective recklessness (knowing the risks he was running by not getting medical care) can be used to decide whether his behavior was grossly negligent or a major departure

to trigger a duty (like to protect from injury) the defendant must likely at least personally know enough about the facts to suggest toa reasonable person that there was a need for action

R v Stone and Dobinson

defendants don’t need to assume a comprehensive role in care, living with the victim and making some efforts/indications to help is enough - in this case it was also relevant that the defendants invited the victim to live with them

R v Taktak

Australia - defendant hired a sx worker for a friend and had to get her from a hotel lobby, when he found her, he realised she had overdosed. he took her to a room and din’t get medical help, she died

duty of care is extended to complete strangers where the defendant has voluntarily assumed care and charge of the victim by isolating them and preventing others from helping them.

R v Rao

Australia - victims mentally unstable and overdramatic partner had been talking about killing him, her friend (the defendant) had resassured his friends that he wasn’t in danger but had turned out to be wrong.

a person who had sought to intervene to protect someone from danger does not assume a duty of care

definition of vulnerable adult

section 2 - any person unable, by reason of detention, age, sickness, mental impairment, or any other cause, to withdraw himself or herself from the care and charge of another person.

R v Khan

state of vulnerability doesn’t have to be permanent, fit adult incapacitated with recoverable injury can still be ‘vulnerable’
vulnerability can come from young age, serious physical injuries, being isolated in a foreign country, being dependent on the people living with victim.

abuse the perpetrator is directing at the defendant can be applied to the reasonable person - because it is not a personal characteristic, its part of the defendants circumstances

R v Lunt

parental duty is imposed on someone in loco parentis (someone who informally takes on the role of a parent in the absence of the actual parents like teachers, nannies, schools)
In this case, flatmates of parent who step in to take care of child.

necessaries are goods and services (food, clothing, medical treatment) necessary to sustain life

in relation to common law duty to take steps to minimise damage, common law duties survive section 9 because they are not offences so can apply in NZ

R v Q

A mum was prescribed methadone for addiction issues, she had pneumonia and was sleep deprived and had no support. She took a couple of shots of vodka and a sleeping pill. She fell asleep and accidentally smothered her baby whilst breastfeeding. 

court found she was still providing her child with necessaries because she was providing food - duty to provide necessaries is not breached by failing to provide necessaries safely

JF v Police

for duty to protect someone from injury, injury is not necessary as long as risk of injury is ‘likely’

R v Filimoehala

defendant does not need to be aware of how the injury was caused, only the medical need for it

injury standard

only actual bodily harm, doesn’t need to be from someone

R v Yogasakaran

an anaesthasist accidentally administered the wrong drug to a patient because it was in the wrong drawer

for section 155, the court found that this was not a case of necessity and expection for necessity only applies to unqualified/insufficiently qualified people who undertake medical treatment in emergencies

Auckland Area Health Board v AG

for lawful excuse to discharge of duty, there isn’t a set definition, depends on the facts. In this case, the defendant acting according to standards of good medical practice was a lawful excuse

R v Mwai

defendant was HIV positive and had unprotected sx with partners without informing them

semen infected with HIV can be a dangerous thing under the defendants control under section 156 - court found he had a duty take reasonable precaution/care to avoid danger to life which meant using condoms and telling his partners of his HIV status

R v Anderson

under section 156 a dangerous thing can include non physical things like events. In this care, a cycling event organized by the defendant

R v Dalley

under section 156, there is no requirement that the dangerous thing have a significant risk of danger, only that it ‘may endanger life’

HIV postive semen is a dangerous thing even though risk of infection was statistically low

R v Crossan

the owner of a car was sitting in a passanger seat while a young reckless, disqualified, and intoxicated driver drover

for purposes of section 156, the defendant doesn’t have to have sole, complete, or exclusive charge or control of the dangerous thing.

In this case, court found defendant had sufficient charge of the car

R v Turner

Court found the principle shareholder, managing director of a company owning a factory, and the general manager of the factory had charge and control of a fish packing house within a factor.

for section 156, defendant can have just a share of charge or control of a dangerous thing

english common law duty

a person has a duty to take reasonable steps to avoid a danger they have created

R v Miller

defendant fell asleep on a mattress with a lit cigarette in hand, the cigarette caught fire on the mattress and when the defendant realised he didn’t do anything

once the defendant has become aware of the danger they created, they have a duty to counteract that danger.

R v Wacker

a lorry driver transporting 60 illegal immigrants hidden in the truck closed the air vent so peoples voices couldn’t be hear. 58 people died of oxygen deprivation

defendant voluntarily assumed duty of care when he closed the air vents because he knew at that point only his actions could realistically stop the victims from dying

R v Evans

when a person has created/contributed to creating a situation which they know/reasonably should know was become life threatning, they normally have a duty to take reasonable steps to save the life - Actions do not have to play a significant causal role.

R v Gedson

a reasonable person is placed in the shoes of the defendant, what is reasonable must be judged in light of all circumstances the defendant is facing

R v Fenton

major departure must be proven from the acts/omissions which caused the death because it is the major departure which caused the death