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ACTUS REUS AND MENS REA Woolmington v DPP: The crown must prove the AR and MR elements BRD. VOLUNTARY CONDUCT PRINCIPLE There is a fundamental requirement of voluntary conduct (Kilbride v Lake) Loss of physical control (R v Wickliffe (1986) NZCA: Court not bound to view moment in complete isolate, m...

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ACTUS REUS AND MENS REA Woolmington v DPP: The crown must prove the AR and MR elements BRD.

VOLUNTARY CONDUCT PRINCIPLE There is a fundamental requirement of voluntary conduct (Kilbride v Lake) Loss of physical control – (R v Wickliffe (1986) NZCA: Court not bound to view moment in complete isolate, may regard immediately preceding conduct as part of act causing death. Involuntarily pulled trigger, but may still be liable). Can be defence: Impossibility of compliance, automatism and insanity.

CAUSATION  

‘But for’ test – R v Kuka Test = substantial and operative (R v Smith)

NOVUS ACTUS (A) MUST NOT BE REASONABLE FORSEEABLE (OBJECTIVELY)  

Incoming tide reasonably foreseeable/predictable (R v Hallet) Getting hit by car on Queen Street after being pushed reasonably foreseeable (R v Fleeting). (B) PERSON? MUST BE FREE, DELIBERATE AND INFORMED (R V PAGETT)

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Actions of an innocent agent not a novus actus (R v Michael (1840) (C) ACTIONS OF VICTIM

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R v Tomars (1978) NZCA: D liable if victim’s response (putting self in harms way by driving into traffic) was reasonably foreseeable by someone in the accused’s position. You must take your victim as you find them. Jehoah’s witness failing to take blood transfusion not a novus actus (R v Balue) (D) MEDICAL TREATMENT

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Turning off life support through competent medical treatment would not break causal chain (R v Trounson and section 166) Even if victim dies due to complication, normal and proper treatement done in good faith does not change the cause (Kirikiri NZ, affirming R v Chesire in section 166)

TYPES OF MENS REA INTENTION   

Intent can be inferred from the circumstances (R v Noel) Can be oblique sense of intention – foreseeing event as virtually certain (R v Woolin (1998) HL – threw child against wall). Requires high degree of probability. Conditional intention is still intention (Wicks v Police).

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KNOWLEDGE 

Either positive and correct belief, or willful blindness (suspecting something and deliberately failing to check because you don’t want to confirm). R v Crooks.

RECKLESSNESS R v Cunningham: D is subjectively aware of a substantial and unjustifiable risk and consciously disregarded it. Needs subjective foresight to be guilty.

NEGLIGENCE Objective: ought to have known and not run the risk.

CONCURRENCE WHEN AR PRECEDES THE MR Fagan v Commissioner of Metropolitan Police: Established continuing act doctrine = AR continuous until MR is developed. WHEN MR PRECEDES AR Complex Single Transaction. The entire event can be viewed as single transaction, that earlier developed MR applies to (Thabo Meli v R). But this is limited to when there is preconceived plan to kill (R v Ramsay) Causation Theory: If an injury was substantial and operative, the MR to kill (recklessness) extended to the eventual death (R v MicKinnon)

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DUTIES 150A(2): Only criminally responsible if the omission “is a major departure from the standard of care expected of a reasonable person to whom that legal duty applies.” s 151 = vulnerable adults & 152 = parent or guardian Those who have actual care or charge of vulnerable adult or child under 18 have duty to: (a) provide necessaries (b) take reasonable steps to prevent person/child from injury s 153 = duty of employers s 155 = administer of dangerous surgical or medical treatment legal duty to have and to use reasonable knowledge, skill, and care in doing any such act. s 195: Anyone who is - in actual care or charge of victim - or a staff member of a hospital, institution or resides where the victim lives. ... and intentionally engages in conduct or omits to perform legal duty that is likely to cause harm to the victim (vulnerable adult or child) and is a major departure from the standard of care expected of a reasonable person is liable for up to 10 years. s 195A: Anyone who is: - a member of the same house hold - a staff member at hospital, institution, or residence where the victim resides. AND has frequent contact with the child or vulnerable adult AND knows the victim is at risk of death, GBH, or sexual assult from an unlawful act or omission from a third fail and fails to take reasonable steps to protect the victim from risk is liable for up to 10 years.  

A legal duty arises where one has voluntarily assumed care of a stranger and so excluded them so that others are prevented from rendering help. (R v Taktak) Duty to take measures within one’s power to counteract a danger you has created (R v Miller (1983) HL)

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HOMICIDE (1) HAS A HOMICIDE OCCURRED? s 158 Homicide “The killing of a human being by another, directly or indirectly, by any means whatsoever”

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Human Being s 159(1): A child is a human “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 navel string is severed or not.” s 159(2): It is homicide if “it dies in consequences of injuries received before, during or after birth.” s 182 killing unborn children (Not liable if means employed in good faith to save mother) & s 183 Procuring abortion by any means. Defendant must be human being: Murray Wright Ltd (1970) NZCA: Held a corporation cannot be principle to homicide.

(2) WAS THE HOMICIDE CULPABLE? s 160(2) Culpable Homicide Homicide is culpable when it consists in the killing of any other person (a) by an unlawful act; (b) by an omission without lawful excuse to perform or observe any legal duty; (c) by both combined; or (d) by causing that person by threats or fear of violence, or by deception, to do an act which causes his death – (e) by willfully frightening a child under the age of 16 years or a sick person. No Culpable homicide = No offence (160(4))

S160(2)(A) - UNLAWFUL ACT 

Section 2: unlawful act “means a breach of any Act, regulation, rule, or bylaw.” (A) UNLAWFUL ACT MENS REA MUST BE SATISFIED (R V LAMB)

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R v Powell (2002) NZCA: Held the major departure standard applied equally to unlawful act involving negligence. (B) DEATH MUST RESULT BECAUSE OF THE UNLAWUL ACT (R V MYATT) (C) UNLAWFUL ACT MUST BE OBJECTIVELY INHERENTLY DANGEROUS

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R v Lee: An act the reasonable man would know had risk of some harm. R v Fleeting (1977): What is dangerous is judged in light of time, place and circumstance (pushing man onto Queen Street). DPP v Newbury (1977): Applies Church. Held can be convicted when didn’t foresee death. It must be proved he intentionally did an unlawful and objectively dangerous act that inadvertently caused death. Do not have to prove they knew it was dangerous.

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S160(2)(B) - OMISSIONS 

Must breach a relevant duty and a “major departure from the standard of care expected of a reasonable person to whom that legal duty applies” (150A)

S160(2)(C) - DEATH BY THREATS 

R v Tomars (1978 NZCA: (1) D induces fear in victim. (2) which is not insignificant cause of C acting as V did, (3) V’s actions were reasonably foreseeable by someone in the accused’s position.

S160(2)(D) - WILLFULLY FRIGHTENING  

Willful = acting with intent and knowledge that child is under 16 or that the person is sick. Exception to section 163 (killing by influence of the mind): No criminal responsibility for killing by “any influence on the mind alone, except by willfully frightening a child under the age of 16 years or a sick person.”

(3) DID DEATH OCCUR WITHIN A YEAR AND A DAY? s 162 Death must be within a year and a day (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.  

Inclusive of the day the act took place (s 162(2)) or omission ceased (s 162(3)) R v Trounson (1991) NZ: Life support withdrawn in good faith does not free someone of responsibility (i.e. they would have lived past the year and a day).

(4) DID D CAUSE THE DEATH? (A) DID THEIR ACTIONS HASTEN DEATH?  

Section 164: An injury “to hasten his or her death while laboring under some disorder of disease arising from some other cause” still equates to killing. Independent causes do not excuse if the acceleration is substantial & operative. (B) IRRELEVANT THAT DEATH COULD HAVE BEEN PREVENTED

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Section 165: Every one 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. R v Blaue: Take your victim as you find them, everyone has right to refuse treatment. (C) IRRELEVANT IF IMMEDIATE CAUSE IS MEDICAL TREATMENT

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Section 166: Everyone on who causes to another person any bodily injury, in itself of a dangerous nature, from which death results, kills that person, although the immediate cause of death be treatment, proper or improper, applied in good faith. R v Kirikiri (1982) & R v Chesire (1991) Only in rare and extraordinary circumstances that medical treatment would be a novus acus.

(5) WAS IT MURDER?

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s 167 Murder Culpable homicide is murder: (a) if the offender MEANS TO CAUSE THE DEATH of the person killed (intention) (b) If the offender means to cause to the person any bodily injury that is KNOWN TO THE OFFENDER TO BE LIKELY TO CAUSE DEATH, and is reckless whether the death ensues or not (c) If the offender means to cause death, or as being so reckless as aforesaid, means to cause such bodily injury as aforesaid to one person, and by accident kills another person, though he does not mean to hurt the person killed. (transferred malice). (d) If the offender for any unlawful object knows to be likely to cause death, and thereby kills any person, though he may have desired that his object should be effected without hurting any one.

167(A) - INTENTIONAL MURDER   

MENS REA: The offender intends to cause the death, or death is virtually certain. R v Noel (1960) NZ: There is no legal presumption that the person intends the natural and probably consequences of their actions, but certain outcomes so virtually certain that can sway claims the defendant did not foresee harm. That they ought to have known or a reasonable person would have known is generally insufficient for murder. However, it would be enough if they knew death to be an inseparable consequence of his object.

167(B) - RECKLESS KILLING   

MENS REA: intended to cause GBH, knowing death is likely and being reckless as to whether death ensued. R v Dixon (1979) NZ: Held that this is a subjective test. At the time of death the defendant must have “actually appreciated” or had a “conscious appreciation” of the likelihood of causing death. Not enough that he ought to have known. R v Harney [1987] (CA): Court held ‘reckless’ was not failure to give thought to obvious risk, but deliberate taking of real and substantial risk with foresight.

167(C) – TRANSFERRED MENS REA 

Either a mistake or accident.

167(D) – KILLING WHILE GIVING EFFECT TO UNLAWFUL OBJECT WHAT IS AN UNLAWFUL OBJECT?    

Not limited to legal elements of offence – question of fact whether committed act as part of unlawful object (R v Shadrock). Must be something other than person injury to victim (R v Downey (1971) NZCA). Could be a different kind of personal injury not necessarily covered by 167(b) – sexual violation (R v McKeown) chocking (R v Hakaraia) R v Aramakutu [1991] NZCA: Held there must both a fatal act and unlawful object, but act and object don’t have to be distinct – they can be one and the same. WHAT IS THE MENS REA?

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Requires subjective appreciation that death is likely with real risk. (Shadrock v R)

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NO DIMINISHED RESPONSIBILITY IN NZ 

Repealed provocation in 2009 following Clayton Weatherston.

SENTENCING FOR MURDER 

Sentencing Act 2002 s102: (1) An offender who is convicted of murder must be sentenced to imprisonment for life unless, given the circumstances of the offence and the offender, a sentence of imprisonment for life would be manifestly unjust. (2) If court does not impose a sentence of imprisonment for life on an offender convicted of murder, it must give reasons for not doing so.

(6) WAS IT FELONY MURDER (SECTION 168)? s 168: Felony Murder (1) Also murder in the following circumstances whether the offender means death to ensue or not, or knows or does not know whether death is likely (no intention and no recklessness as to death required). (a) means to cause GBH for the purpose of facilitating the commission of any of the offences mentioned in subsection (2), or facilitiating the flight or avoiding the detection of the offender upon the commission or attempted commission thereof, or for the purpose of resisting lawful apprehension in respect of any offence whatsoever, and death ensues from such injury: (b) if he administers any stupefying or overpowering thing for any of the purposes aforesaid, and death ensues from the effects thereof: (c) if he by any means wilfulyl stops the breath of any person for any of the purposes aforesaid, and death ensues from such stopping of breath

(7) WAS IT MANSLAUGHTER? Section 171: Except as providing in section 178 (infanticide – women killing child under 10 due to disturbed balance of mind) of this Act, culpable homicide not amounting to murder is manslaughter?

SECTION 196 – COMMON ASSAULT

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“Everyone is liable to imprisonment for a term not exceeding 1 year who assaults any other person.” – Creates offence, but definition in section 2. Four types of assault created by s 2 definition – the act of: 1. Intentionally applying force to the person of another, directly or indirectly 2. Attempting to apply force to the person of another, directly or indirectly” 3. Threatening (by act or gesture) to apply such force to the person of another where the accused has present ability to affect his purpose. 4.Threatening (by any act or gesture) to apply force to the person of another, causing the other to believe on reasonable grounds that he has present ability to affect his purpose.

ACTUS REUS PHYSICAL ASSAULT (1) The ‘application’… 

Implies pro-activeness. The bracing and leaning of a body to resist a push is not sufficient (Mitchell v Police) (2) … of ‘force’ …

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Can be a mere touching that does not involve any degree of violence. Collins v Wilcock: “The fundamental principle, plain and incontestable is that every person’s body is inviolate.” Kovalev v Police (2010) NZHC: Includes electric shock. Hugh v NZ Police (2009) NZHCU: Includes spitting. The De Minimis Doctrine allows judges to throw out trivial applications. (3) … to the ‘person of another’ …

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Includes hair – DPP v Smith (likely clothing too) (4) …‘directly or Indirectly.’

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Indirectly means applying force through something else – innocent agent, throwing object, knocking object etc. Indirect application includes situations when some steps by the victim is necessary before the force is applied to the body (set up toaster to electrocute (Kovalev v Police (2010) NZ).

PSYCHIC ASSAULTS (1) ‘THREATENS’ THE VICTIM …   

Police v Greaves (1964) NZCA: A conditional threat is still a threat. Rozsa v Samuals (1969) Australia: If the condition is one that the party has a right to impose (eg in self-defence) it is not an assault. Tuberville v Savage (1669) UK: No assault when the condition indicates there is not intention to carry out the treat.

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(2)… BY ‘ACT OR GESTURE’ …   

Words alone not sufficient – more needed to ensure there is a commitment to follow through. Fogden v Wade (1945) NZ: Words alone cannot constitute an assault in the absence of some other threatening act. Could repeated harassment through modern technology become an action? (3) … WHERE D HAS THE ‘ PRESENT ABILITY’ TO APPLY SUCH FORCE.

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R v Kerr (1998) NZCA: Held it was irrelevant whether V is aware of the threatening act or gesture so long as D has the present ability to apply such force. (D brandishing axe over sleeping Victim).

MES REA PHYSICAL ASSAULT: Statute requires intentional application of force. (Overriding the common law which accepted recklessness – R v Young). PSYCHIC ASSAULT: Must have an intention to perform the threatening act and intention to threaten the victim. It’s not enough they felt threatened (Steinberg v Police).

TRANSFERRED MALICE Narayan v Police (2010) NZ: Held this doctrine applies to offence of assault, thus MR can be transferred to the actual victim. Chandler v Police (2010) NZ: Does not transform malice. Intended to hit male and hit the girlfriend. Could not be convicted of male hits female.

DEFENCES TO ASSAULT

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CONSENT (1) IS THERE EVIDENCE OF CONSENT?   

Common Law defence if the accused knew the victim consented, or believed they did on reasonable grounds. Mens rea aspect to defence: The crown must establish the defendant knew they did not have the victims consent (R v Lee (2006) NZCA) Whether there was consent/belief of consent is a question for the jury.

(2) COULD THE VICTIM CONSENT TO THAT LEVEL OF HARM?  

Actual Bodily Harm: Bodily harm that is neither trivial nor serious. Grievous bodily harm: Really serious injury R V LEE (2006) NZCA: The Victim can consent to any harm falling short of death unless there is good public policy that excludes it. Court would not say exorcism per say was reason to exclude consent as it was a matter of religious expression (s15 NZBORA). Held there was four tiers in terms of level of harm: 1. No bodily harm intended or risked – consent a complete defence with no exceptions. 2. Actual Bodily harm intended or risked – consent a defence except in cases of nonsporting fighting (and perhaps some other rare categories, as yet unknown). 3. Grievous bodily harm intended or risked – consent a defence except where the judge balances:  personal autonomy,  the social utility of the activity,  the level of seriousness of the injury intended/risked,  the degree of risk of such injury  reasonableness of consent or belief in consent, and then concludes consent should be withdrawn from the jury on the facts. Case by case, but presumption of personal autonomy. 4. Death intended or risked – no right to consent to the infliction of death upon oneself – section 63. R v Barker (2009) NZCA:

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Held: there is a presumption of ability to consent as judges ought to have a high level of respect for the personal autonomy and ought to take care not to impose their personal views on the conduct of others. Glazebrook J (dissent): Suggested there should be a sliding scale of harm – allowing policy factors like age to exclude consent.

OTHER JURISDICTIONS: 

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UK: R v Brown (1994) HL: Set standard at ABH where there’s presumption against consent. Exceptions in social approved activities: lawful sports, surgery, rough and undisciplined horseplay, lawful chastisement, body piercing, and tattooing. (Majority: sadomasochistic sex is not a socially approved activity). R v Wilson (1996) HL: Legitimised consensual activity between husband and wife at home (sadomasochistic) is no matter for criminal prosecution and exception. Australia: Draws the line at grievous bodily harm.

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(3) WAS CONSENT VITIATED BY A MISTAKE? Consent is vitiated when there is a mistake that goes to the nature of the act or the identity of the person who did the act (status of person not relevant). HIV SITUATION   
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