CRIM: Elements of offences

What elements do you need for a criminal offence

AR, MR, Contemporaneity

what solution to a gap between AR and MR exist

Continuing act (Fagan) and created the danger (Miller)

what must exist to be liable for an omission

Identified Legal duty, not merely a moral one

Does Miller reasoning apply in NZ given s 9

yes, Lunt holds that common law duties survive

what is a status offence

Liability for being found in a situation, no act or omission required

main critique of Larsonneur

involuntary presence and impossibility of complience

Kilbride causation principle

No liability without some other course of action being open, an intervening cause breaks the causal nexus

what are the 3 main forms of MR

Intention, Knowledge, Recklessness

three ways MR can arise

Expressed, implied or presumed

e.g of implied (threatens, requires a intent to influence the V mind) , presumed (when the offence is serious; Millar)

Three step MR method

Identify form, state its requirements, and then apply to facts

Is motive part of intention

No (wentworth; Police v K)

what is direct intention

Aim or purpose, acting to bring about the result

what is oblique intention

A result foreseen as a virtually certain consequence of D intended conduct

Nedrick/Woolin cf Piri (NZ) - murder

Woolin affirmed Virtual certainity was required to infer intention, these english oblique intent cases have limited use in NZ as s 167(b) and (d) / statute covers that ground as show in Piri and Taylor.

where does VC still matter in NZ

Intention only offences: assault (wentworth)

How was motive excluded in Police v K (regarding the dad breaching parenting order thingy)

A deliberate act or omission, with knowledge that it would breach the order, no motive is required

what counts as knowledge in NZ

Belief (no substantial doubt - Crooks), and Wilful Blindness (deliberately abstaining from an obvious means of confirmation because D knows what the answer will be.

constructive knowledge is generally not enough - test is subjective

Wilful blindness vs recklesness

Wilful blindness requires a higher awareness and desire to stay ignorant, recklessness requires only running a seen risk

NZ definition of recklessness

(Harney) : Foresight of consequences that could well happen, together with an intention to continue regardless

Did the D consciously appreciate the risk and decide to run it anyway

what are the two limbs of recklessness described in (cameron)

(a) a subjective real possibility (“could well happen”) - below VC

(b) objectively unreasonable to run the risk - weigh the social utility with the risk taking (no social utility is automatically unreasonable)

what are the objections to caldwell (obj recklessness)

Punishes a absence of mine, and collapses recklessness into negligence

Caldwell overuled in England in R v G (case about the boys that started a fire), In NZ obj recklessness might only apply where statute clearly mandates it (Tipple)

when might a D not consciously appreciate a risk

when they are undertaking a impulsive action, may not fully think it through (Heihei), man was angry acted impulsivley - court found he did not appreciate the risk

D sees a risk and tries to minimise it what happens in terms of recklessness

Not reckless if D genuinely beleived the risk was eliminated (hay), credibility decides this (standing in oil himself, other factors may aid this)

Which form of MR does Cameron read into offence silent on MR

Recklessness, not knowledge

Problem Q engine

1. Identify the offence and section

2. Classify the AR (act?, omission? , State of affairs…)

3. Voluntary/causation - Kilbride

4. Classify the MR (expressed?implied? - which form?)

5. State the test for that MR form and cite leading case

6. Apply it to the facts through inference

7. Conclude and argue alternative

8. Contemporaneity - dont forget

Leading cases on MR forms

1. Intention - Wentworth ( intention covers both direct and oblique intention, provided they are foreseen with sufficient certainty (VC). - Note for murder situations follow piri (limitation of VC). - Wentworth + Police v k say motive is not part of intention

2. Knowledge - Crooks - knowledge includes belief, wilful blindness means we can infer actual belief

3. Recklessness - Harney - note tipple discusses the objective question (degree and nature of risk weighed against its social utility) - Cameron sets out the authoritative two limb recklessness test, and use when offence silent on MR