NZCLE Criminal Exam Notes PDF

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BURDEN OF PROOFSection 25(c) of the New Zealand Bill of Rights Act 1990 provides that every person is innocent until proven guilty.In terms of Woolmington v Director of Public Prosecutions , the Prosecution has the burden to prove all the elements of the offence, including the actus reus and mens re...

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BURDEN OF PROOF Section 25(c) of the New Zealand Bill of Rights Act 1990 provides that every person is innocent until proven guilty. In terms of Woolmington v Director of Public Prosecutions, the Prosecution has the burden to prove all the elements of the offence, including the actus reus and mens rea elements, beyond a reasonable doubt before the accused can be found guilty. In some cases, this will not apply, for example, when it is displaced by statute. E.g. •

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S 6(6) of the Misuse of Drugs Act 1983 which places a burden of proof on the defendant to prove, on a balance of probabilities, that drugs over a specified quantity are not possessed for the purposes of distribution (Hansen v R 2007). Section 134A of the Crimes Act provides that a defence to the crime of sexual conduct with a young person under 16, if the defendant proves that they took reasonable steps to ascertain whether the young person was of or over the age of 16, that they believed on reasonable grounds that the young person was of or over the age of 16, and the young person consented.

The legal onus is on the prosecution to prove beyond reasonable doubt the elements of the office. An evidential burden may lie on the defence to raise evidence to support the existence of a fact in issue. This is based on a balance of probabilities. If the defendant puts forward a defence, he merely needs to put evidence of facts which raise it in Court. The prosecution only has to prove mens rea if required by the offence. In strict and absolute liability offences there is no need to prove means rea only the actus reus. The actus reus element refers to the actual act or omission of the offence or being responsible for the act. The mens rea element refers to the mental element or the defendant’s mental state at the time the offence was committed. If the offence is one of strict liability, the burden is on the defence to prove absence of fault on a balance of probability.

ACTUS REUS This element refers to the physical element of the crime. A person can be guilty of an offence only where there has been a voluntary act or omission in circumstances where he could reasonably exercise choice. Normally there must be an element of fault before criminal liability is imposed.

MENS REA Mens rea is normally the second element of an offence and is required to be proven by the prosecution beyond a reasonable doubt. Mens Rea refers to the defendant’s state of mind at the time of the commission of the offence, normally referred to as the guilty mind. There are three steps to establish whether a D has mens rea. (1) determine what mens rea standard is required in each element of the actus reus (2) interpret criteria of those mens rea elements (3) did the D act with mens rea element required? In order to ascertain which category of Mens Rea the prosecution has to prove, it will normally be contained in the relevant provision, or the Court may have to determine this if it is not clear. Intention (subjective) •

Intention is the most serious category of Mens Rea. There are two types: (1) Direct intention – where the D intends the consequence because he desires it and acts in such a way to bring it about. (2) Indirect Intention – where the D does not desire the consequences, but intent can be inferred from the D’s foresight if he was aware the consequences were virtually certain (R v Nedrick).

Recklessness (subjective) •

The Court in R v Piri (1987) described the degree of recklessness as “real, substantial risk, something that might well happen.”

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In Cameron v R the Supreme Court held that recklessness will be established if the D recognised that there was a real possibility that his actions would bring about the proscribed result; and/or that the proscribed circumstances existed and having regard to that risk those actions were unreasonable.

Knowledge (subjective) •

Some offences require knowledge of a particular circumstance or fact as part of the Mens Rea requirement.

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E.G. Knowingly received stolen goods (s 246 Crimes Act) means knowing or believing and is subjective. However, in terms of Waaka v Police, reckless knowledge is enough.

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In R v Anderson (2005), s 145 criminalized an act or omission she “knew” would endanger lives, which created an offence of recklessness. Judge wrongly put the mens rea as negligence. She did not have subjective knowledge (required for recklessness in NZ), therefore conviction was quashed.

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Wilful Blindness -

Related to knowledge. The question is whether being wilfully blind constitutes knowledge? In terms of Waaka v Police the answer is yes but only where knowledge is not specifically provided for in statute.

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There are two categories of wilful blindness:

(1) Failure to inquire because he knew what the answer was going to be (R v Crooks) (2) The knowledge is easily ascertainable and the D realises the likely truth and chooses not to enquire in order not to know (R v Martin). Negligence (objective) •

Not strictly Mens Rea as D’s conduct falls below the standard of care pf a reasonable person. Objective definition.

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S 150A of the Crimes Act requires that negligence for criminal liability is gross negligence, major departure from standard of care.

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Also applies to a manslaughter by unlawful act where the act requires proof of negligence or is strict liability or absolute liability offence.

For subjective Mens Rea requirements, we must rely on evidence to support a finding of Mens Rea as we do not know what was going through D’s head. We infer someone’s state of mind based on the circumstances including our assessment of what was reasonable/unreasonable in the circumstances. Other factors include statements by the accused e.g. “ I did not think about it” means he may not have appreciated the risk. Evidence can be drawn from D’s conduct (e.g. fires a gun in a room may be evidence of intention to hurt).

TYPES OF OFFENCES In terms of Millar v Ministry of Transport, the Court held that there were three types of offences: (1) Mens Rea Offences (2) Strict liability (3) Absolute liability Mens Rea Offences • • • • •

Prosecution must prove the existence of a guilty mind beyond a reasonable doubt. Often called truly criminal offences The mens rea element of the crime usually expressly stated in the legislation. Mens rea may also be implied. The Court in Millar held that where means rea is an implied element of the offence, the D has an evidential onus to raise reasonable doubt about the presence of mens rea. If it turns out that D did not foresee or intended the actus reus, the onus then reverts back to the prosecution who must then prove mens rea beyond a reasonable doubt.

Strict Liability Offences • • •

The prosecution only has to prove the actus reus. In Millar the Court held that these offences are often called regulatory or public welfare offences. The burden rests of the defence to prove absence of fault (due diligence) on a balance of probabilities.

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Strict liability is more appropriate for offences that regulate the carrying out of a lawful activity. In Millar, and followed by Stevenson v R, the Court held that where the words of the statute give no clear indication of legislative intent the question is whether there is really anything weighty enough to displace the presumption of mens rea. In terms of Millar, it would be a defence is the D acted with an honest and reasonable mistake as well as due diligence where the D took all reasonable steps to avoid the situation.

Absolute liability • •

The prosecution only has to prove the actus reus in order to establish liability (Police v Taylor 1965). Does not have to prove the existence of a mental state.

Mistake of Facts •

In mens rea offences, when a D is mitaken about a a set of facts, the mistake goes to the question of whether the D had the required mens rea or not.

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There is no requirement that the mistake be a reasonable one, however, s 128, sexual violation, consent has to be on reasonable grounds.

Mistake in Law •

Where the D is mistaken with the regard to the law, this is no excuse.

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S 25 of the Crimes Act states that the fact that an offender is ignorant of the law is not an excuse for any offence committed by him.

COMPLICITY Assisting in Offence Actually Committed (Section 66(1)) Actus Reus Section 66(1)(a) - provides for principal liability and covers everyone who commits the offence. There may be more than one person as being the principle. Section 661(b) - In terms of Larkins v Police, “Aiding” means assisting, helping, giving support. Such assistance may be in the form of an omission (Cooper v Ministry of Transport). It is not necessary for the secondary party to be present at the scene of the commission of the offence, it is only assistance that is required. Section 66(1)(c) - In terms of Larkins v Police, “Abetting” is used in the sense of encouragement in the commission of the crime. If the requisite mens rea is there, merely being present maybe an abetment if it gives the principle the incentive to commit the crime, in terms of Cooper v Ministry of Transport. Section 66(1)(d) - “Inciting” means perusuaion, inducement, coercion or urging (Burnard v Police) requires greater pressure than encouragement. “Counselling” giving advice or information. “Procuring” - produce by endeavour or deliberately cause the principle to commit the offence In terms of R v Renata, if the principal offender is not established, it is sufficient for the purposes of s 66(1) to prove that each individual accused must have been either the principal offender or a party in any of the ways contemplated. Mens Rea Mens Rea for secondary participation is intention. Two elements of intention must be proved: (1) Secondary party must intend their own conduct, and intend that it will assist the principal’s actions (R v Samuels). Not necessary to prove that the secondary party desired the principal to commit the offence, only the assistance rather than the ultimate crime (R v Singh). (2) Secondary party must have knowledge of the essential matters that make up the principal’s action an offence (Johnson v Youden). In R v McCausland, the Court of Appeal said that, while McCausland may only have known initially that the principals planned something bad, byt the time the car approached the tavern and rifles were produced, he had knowledge of the essential matters of aggravated robbery. In R v Hartley (2007) Hartley the appellant was convicted of manslaughter after an accomplice, with whom he had assaulted people, stabbed one victim. The Court of Appeal held that it is necessary for the Crown to prove that an accused aided or abetted in respect of offending of the type which actually occurred. The assault that occurred was different to that which Hartley was assisting therefore could not be held liable for manslaughter. There was no evidence that Hartley knew the principal was armed with a knife.

In Ashin v R, the Supreme Court set out a full explanation of the legal elements of s 66(1)(b) as follows: (a) The offence to which the defendant is alleged to be a party was committed by a principal offender; and (b) The person alleged to be a party assisted the principal offender in the commission of the crime, by words or conduct or both; and (c) The person alleged to be a party in fact intended to assist the principal offender to commit that particular offence; and (d) The person alleged to be a party knew both the physical and mental elements of the essential facts of the offence to be committed by the principal offender. Secondary Parties Pursuant to a Common Unlawful Purpose s 66(2) Liability under s 66(2) arises if the secondary party knew that the offence committed by the principle was a ‘probable consequence’ of committing the original planned offence. S 66(2) covers any act done by the principal that was not the result aimed at, but which was contemplated, albeit an unwanted, consequence of the criminal plan (R v Curtis). Mens Rea The mens rea element under s 66(2) is knowledge of probability. Secondary party must know that the offence committed was a “probable consequence” of the prosecution of the common unlawful purpose. “Probable” in this context means something that “could well happen” or a “real risk, a substantial risk” (R v Piri). In Ashin v R the Court held that there is a shared understanding to carry out something unlawful, in which they all agreed to help each other and the offence was committed by the principals and the D intended the offence committed or was a probable consequence. Does not have to be more likely than not. The Supreme Court confirmed the requirements to be established in order to find a D guilty under s 66(2): “In order to establish party liability under s 66(2) the Crown must prove beyond reasonable doubt that: (a) The offence to which the defendant is alleged to be a party was committed by a principal offender; (b) There was a shared understanding or agreement to carry out something that was unlawful; (c) The person(s) accused of being parties to that agreement had all agreed to help each other and participated to achieve their common unlawful goal; (d) The offence was committed by the principal in the course of pursuing the common purpose; and; (e) The defendant intended that the offence that eventuated be committed, or knew that the offence was a probable consequence of carrying out the common purpose. This requires foresight of both the physical and mental elements of the offence.”

Different verdicts for Principal vs Secondary Offenders The question as to whether the secondary party must necessarily be convicted of the same offence as the principal is often an issue in culpable homicide. In R v Harley 1978, the Court held that even if murder were proved against the principal offender, a jury might still find that a secondary party could properly be convicted of manslaughter, if there was no anticipation of a killing done with murderous intent. Verdict for murder -

In terms of s 66(1) secondary party means to encourage the principal to kill with murderous intent under s 167 (R v Tompkins) In term of s 66(2) secondary party knew there was a real risk that the principal would kill with murderous intent in circumstances similar to those that arose (R v Tompkins). The principal is charged with murder under s 168 in which event the secondary party does not need to foresee the risk of death, because the principal does not need to know death is likely, but rather that Grevious bodily harm was a probable consequence (R v Morrison).

Verdict for Manslaughter -

If the secondary party knew that at some stage in the course of carrying out the criminal plan, there was a real risk of killing short of murder (R v Tompkins). The secondary party foresaw a real risk of murder, but the homicide was in fact committed at a time or in circumstances very different from anything the secondary party ever contemplated (R v Hamilton).

Lesser offences or acquittal -

In R v Hartley 2007, Hartley’s conviction was quashed and a common assault was entered because he did not know that the principal had a knife which he used to murder the victim.

Knowledge of a weapon In Edmonds v R (2011), the Supreme Court examined the role of knowledge of the weapon in s 66(2) cases. The Court held that there is no requirement to direct that a defendant must have known of a weapon to be guilty as a secondary party. The material question was whether the defendant knew that the ultimate result was a probable consequence of the common unlawful purpose. Withdrawal Secondary participation can be undone before the principal crime is committed. However, participation must not be merely discontinued it must be countermanded. In Ashin v R, the Supreme Court held the requirements for a defence of withdrawal in general terms as follows: “First, there must be conduct, whether words or actions, that demonstrates clearly to others withdrawal from the offending. Secondly, the withdrawing party must take reasonable and sufficient steps to undo the effect of his or her previous participation or to prevent the crime.” Withdrawal under s 66(1) -

In Rameka v R the Court held that whether withdrawal is effective depends upon the circumstances and extent of the accused’s prior participation. If the basis of liability is

incitement or encouragement, this could be underdone by an express statement to the opposite effect. But if material assistance has been provided, some physical intervention to impede the crime may be required. Offences Committed other than Offence Intended S 70 • •

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Under s 70(1) the secondary party remains laible even though the principal commits the offence in a way different from that which was incited, counselled to procures. Under s 70(2) the secondary party is also a party to every offence the principal commits in consequence of such inciting, counselling or procuring which the secondary party knew to be likely to be committed in consequence thereof. The word likely is intended to convey the same sense as ‘probable’ in s 66(2) something that might well happen, a real substantial risk.

ATTEMPT Attempt is an inchoate offence – they are incomplete in some sense that the offender has formed the intention to commit the offence but for some reason it was not completed. Section 72 defines the offence. Mens rea – is intention to commit offence, recklessness is generally not enough (L v R) Actus Reus – acts or omissions done for the purpose of achieving the accused’s objectives (R v Harpur). Four Principal Elements The law of attempt focuses on four principal types of elements: (1) (2) (3) (4)

Mens rea Actus reus Proximity Impossibility

The first three relate to the minimum requirements for a criminal attempt; the fourth, impossibility, represents an important limitation on liability for an attempt. Mens rea •

Mens rea is the most important element of criminal attempts, because the actus reus does not, as a matter of definition, require proof of a completed crime.

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The phrase in s 72(1) “having an intent to commit an offence” prima facie suggests that only an intention to commit the offence will suffice.

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However, what mens rea is required for attempt depends in part on what type of actus reus element is involved in the offence being attempted.

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The leading case is L v R. On a charge of attempted sexual violation, the Supreme Court held: “…the Crown must prove: (1) That the accused tried to penetrate the complainant’s genitalia with his penis; (2) That the complainant did not consent to the intended penetration; and (3) That the accused did not believe on reasonable grounds that the complainant consented to the intended penetration.

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Because element (2) is a circumstance element, it suffices that D had the same mens rea as would suffice for the underlying offence in s 128.

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By contrast, the conduct element (1) in s 128 must be intended (tried) in order for attempt liability to follow.

Actus reus •

The actus reus of an attempt determines when acts done by the accused in pursuit of that intention are sufficiently proximate to the envisaged crime to warrant criminal liability.

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Under s 72(1), the actus reus of an attempt is an act or omission done “for the purposes of accomplishing his object”.

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It must be shown that the criminal intent has been accompanied by an act or omission which is “immediately or proximately connected with the intended offence” (s 72(3)).

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In terms of s ...