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Laws201 Criminal Law Notes

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Actus reus (elements of offences)

Acts, omissions and contemporaneity "actus non facit reum nisi mens sit rea" - An act does not make a person guilty unless the mind is guilty. - Coke. Actus reus (physical element) must coincide in time with mens rea (mental element) - contemporaneity. R v Fagan [1969]
Fagan accidentally drove his car onto an officer's foot, and after several shouts of "get off", he finally did. Prosecution successfully argued that driving the car onto the foot was a continuing act, which was still in existence when Fa gan developed the intention to remain on the foot - hence there was contemporaneity. A mens rea later formed cannot retrospectively make a person guilty for an accidental act. Omissions To be legally culpable for an omission, there must be a legal duty to act. Often this legal duty is implicit in words such as "causes, damages, destroys". R v Miller - [1983] HL Miller was squatting in an unoccupied house, came home drunk, fell asleep with a burning cigarette, woke up to see the mattre ss smouldering but did nothing to prevent a fire and instead went to another room. Requisite 'reckless' mens rea was established, actus reus was "destroys or damages property." "Duty theory" Once Miller had physically caused the potentially destructive situation and subsequently became aware of it, he was under a duty to take action to prevent this situation. "Continuous act theory" If a person creates a situation that continues to be dangerous, and then becomes aware of it, the burden is on them so do something about it. Judge preferred duty theory, easier to explain to jury. Created a common law implied liability - not a common law offence, but broadened liability for an existing offence. Nicholson v Department of Social Welfare N received a welfare benefit, but later obtained employment. She informed a DSW officer by telephone, then sent written note, yet continued to be paid the benefit. Charged under s127 "omitting to do or say anything for the purpose of misleading an officer" (offence section) Had discharged her duty under s80A "to forthwith advise an officer of a change in circumstances" High Court: she discharged s80A, but at some point a further duty must arise, hence s80A shouldn't limit s127. Court of Appeal: s127 must be read in tandem with s80A, otherwise s80A creates no punishable offence. The duty under s80A has been discharged, so cannot be separately liable under s127. S127 is too vague - doesn't create an omission under specific circumstances that is culpable. Also used principle of 'strict construction' - the Act is to be read in favour of the defendant if two reasonable interpretations are possible. The legal duties that give rise to culpable omissions should be well defined, otherwise their effect will be too ambiguous an d wide.

Statuses Commonly worded as "being found in xxx situation". Not focused on conduct antecedent to you getting into the status, just bei ng in the status now. R v Larsonneur, 1933 Frenchwoman --> England, her passport/visa was changed so that she had to leave the country. Fled to Ireland, Irish police deported her and handed her back to the UK with the English police, and charged as she "being an alien to whom leave to land in the UK has been refus ed was found in the UK" Later courts have criticised this, not common sense interpretation of the legislation. Depends how you interpret 'found'. Found 'at liberty' would make more sense. No act of discovery involved. Nowadays there would be a no-fault defence for this strict liability offence. Causation/involuntariness To be culpable for an act, you must not only have done it, but also have been responsible for doing it. e.g. You must have actually caused the actus reus.

Kilbride v Lake [1962]
On the undisputed facts, Kilbride parked car with WOF displayed, came back to find WOF had disappeared, and there was a ticke t for failing to display a current WOF. Woodhouse J: arguments about mens rea were premature - must first prove actus reus. Two components: positive act of permitting car to be on the street, and the omission of failing to display a warrant. Kilbride did not cause the actus commit the second component of the actus reus, for 2 reasons 1) Causation 1) Not Kilbride but a third party caused the WoF to become displaced, so the chain of causation was broken, he was not culpable for it. 2) Involuntariness 1) A person cannot be made criminally liable for an act or omission unless it was done or omitted in circumstances where there was some other course open to that person. Here there were no other options available, so the omission must be involuntary, unconscious or causally disconnected from you. 2) Here Kilbride's omission was to fail to replace the WoF immediately after it disappeared - this was not an option for him, however, so the omission was involuntary. Involuntary conduct Automatism: when D's bodily movements are uncontrollable, or proceed from a state of reduced consciousness. Two types: sane automatism and insane automatism.

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Two types: sane automatism and insane automatism. Defence of automatism is not available for insane automatism - where the condition causing automatism is a mental disorder clasified as insanity in s 23 of the Crimes Act. It is available when the automatism is caused by an external factor (e.g. Sleep walking, concussion) If the actus reus is committed when the defendant is in a state of automatism, there is no criminal liability. R v Campbell Campbell murdered a gay man who had made advances of him. It was found he was not in control of his actions, because he was s exually abused as a child and suffered from post traumatic stress syndrome: when he committed the killing, he felt as though he was attacking his childhood abuser. Neither defence of sane or insane automatism was available to Campbell, as he suffered from a syndrome (not a mental disease) and the cause of the involuntariness was not external. Court of appeal rejected a 'third type' of residual automatism between the two: such a defence needs defined boundaries. Also, Campbell's actions show that he knew was he was doing and was deliberate, even if he lacked self -control. Psychiatric evidence was for provocation, not automatism. Took steps after the murder to reduce chances of being caught, etc. This type of automatism could be considered at sentencing, but won't lead to an acquittal like sane automatism. Justifiable or excusable acts or omissions "Impossibility of compliance" - Common law defence Where a defendant could not physically carry out what the law requires. In very constrained circumstances, this might provide a defence. Tifaga v Department of Labour [1980] CA T came from Samoa on a temporary permit, which stated that at any time the Minister of Immigration could revoke the permit a nd make him go home within a certain time period. Tifaga went to jail, on release was told his permit was revoked. He didn't have the money, however, to get out of the country in time, so he didn't leave NZ in the 3 week period. Charged with overstaying under s14(6) of the Immigration Act . T failed to leave the country - omission. CA distinguished from Kilbride, as T did not lack conscious volition - he was aware of the omission, so could be responsible. Instead he lacked practical choice - argument of impossibility, not absence of fault. But T was under a continuing responsbility upon him to maintain the means to leave NZ within 3 weeks should the Minister of I mmigration revoke his permit. This legal duty created the criminal omission of failing to leave. Woodhouse J: The fact that he was sent to prison was not an extraneous cause like the loss of the warrant for Richmond P. If T were robbed on the way to the airport, or hospitalised or in prison through the term o the notice, this could excuse lia bility. Tifaga was not free from fault, so his appeal was not successful.

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Mens rea - intention Criminal law looks at a subjective (not objective) mental element, draws inferences from defendant's conduct, statements, etc.

Intention is usually directed towards a result. Intention Oblique intent - Refers to a foreseen result which is a likely consequence of an intended action, but not the directly intended consequence. Danger of including oblique intent within meaning of intention: Makes intention more like recklessness - seeing the risk of a probable consequence occurring, but running that risk anyway. Also may make intention objective - objective element: how probable a consequence is of occuring. R v Moloney [1985] HL Moloney and stepfather have drunken (but friendly) argument about loading shotguns. Moloney won race, stepfather "pull the trigger if you've got the guts," took his stepfather's head off. At the trial, Judge had summed up as though M had aimed the gun, with his only defence being a lack of intent. Summed up intent as "when he desires X to happen, whether or not he foresees that it probably will happen, and (b) when he foresees that it will probably happen, whether he desires it or not." HL substituted murder with manslaughter. Bridge LJ: Moloney's actual defence was that he'd never aimed his gun, and the trial judge didn't explain this to the jury. Question of intent was not of total relevance, but Lord Bridge wants to clarify common law intention.

The foresight of probable consequences is not the equivalent of substantive intention, but is rather evidence of intention. To prevent blurring intention with recklessness, before foreseeable consequences become evidence of intention, there must be a 'virtual/moral certainty' or 'overwhelming probability ' that the consequences will result from an act before it is safe to i nfer intention. Fact specific. Otherwise, declaring the presumption that a man intends the natural and probably consequences of his acts to be irrebutable: juries would apply objective test of the reasonable man. Need clarity and simplicity in definition of intent, for the good of the jury and clear verdicts. A need will frequently arise to explain to a jury that intention is distinct from motive/desire.
* Someone might intend to travel to Manchester, even though it is the last place he desires to be, and his motive is to escape pursuit.

Hancock & Shankland [1986] HL Striking miners pushed a rock off a highway overbridge onto a taxi taking a strike-breaker to work. Claimed they just wanted to scare the worker. Lord Scarman thought Bridge's guidelines were inadequate, replaced with: "the greater the probability of a result occurring, the more likely that it was foreseen by the defendant, and the more likely that the defendant also intended that result." But could bring intention into negligence. R v Nedrick [1986] British CA Nedrick bore a grudge against a mother, set fire to the house, and a child died in the ensuing fire Lord Lane CJ stipulated a necessary level of probability: "the jury ... Are not entitled to infer the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant's actions and that the defendant appreciated that such was the case." R v Woollin [1999] HL Appellant had 3 month old baby, through child onto a hard wooden floor, baby died. Woollin charged with murder. If Woollin must have realised there was a substantial risk that the child would sustain serious injury, then the jury could find W guilty of murder. HL quashed conviction, substituted manslaughter. Lord Steyn affirmed Nedrick. "... a result foreseen as virtually certain is an intended result." Lord Bridge in Moloney thought his findings on intention would be relevant to other specific result crimes outside of murder. Lord Steyn in Woollin is more cautious, says intention may not be uniformly treated throughout the law. R v Matthews and Alleyne Attacked and robbed a high school student, stole eftpos card, couldn't take money out. Returned to the victim, threw him into a river, despite knowing he couldn't swim. Charged with murder. Trial judge said that if drowning was a virtual certainty, and the accused appreciated this, they must have had the intention of killing him. CA dismissed the appeal - held that although judge made foreseeing virtually certain consequences a substantive factor of intention, there was very little difference between substantive/evidential law once there was a virtual certainty of death. Need to see further development in the law on this point to see what will happen. Also the trial judge left open that defendants may have been guilty if after pushing the deceased into the water, they later realised he was virtually certain to drown and took no steps to prevent this, they may be guilty of murder.

Murder in NZ: s167

Murder defined

Culpable homicide is murder in each of the following cases a. If the offender means to cause the death of the person killed.

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a. If the offender means to cause the death of the person killed.
? 'Direct intent', means is closely related to intention b. If the offender for any unlawful object does an act that he 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.
? Oblique intent, foresight of consequences English cases have relevance to s167(a), because 'means' involves intent. Not to (d), because intent doesn't come into it - only foresight. NZ doesn't struggle with the same problems as England then. English cases may have relevance (according to Bridge, not so much Steyne) to NZ provisions involving intent. R v Wentworth [1993] HC Hamilton Application for a discharge under s347 of the Crimes Act 1961. Charged as a 'party' to the crime of manufacturing homebake heroin. Party under the Crimes Act, s66(1)(b) "Does or omits an act for the purpose of aiding any person to commit the offence." His role = selling 400 codeine tablets for that purpose. Issue: What mens rea did the chemist (Wentworth) require to be available to be charged under s347?
D's counsel tried to argue that the term 'for the purpose' requires desire, motive, intention, not just foresight/knowledge of an act. So Wentworth would need to want the others to make heroin. Fisher J disagreed Not necessary for D to desire heroin to be manufactured. Said that legally intention embraces both ultimate (desired) consequences and incidental (undesired but foreseen) consequences so long as the latter are foreseen with sufficient certainty when the course of action is deliberately embarked upon. a. Fisher J equates foresight of consequences with intention, not just evidence of intention. b. Seems to raise the question that something less than a virtual certainty might still be enough for foresight of consequences. c. Assumes that direct intention necessarily involves desire/want/motive. i. c.f. Moloney, motive DNE intention, may not want what you intend to do (go to Manchester)

In the context of s66(1)(b) purpose is to be found to be equated with intention and as a rule of law, intention includes indi rect and oblique intention (oblique meaning foresight of the consequences being morally or virtually certain

Analogy: Gunshops selling guns knowing that they are to be used for contract killing. To give defence saying that they don't 'want' anyone to be killed can't be right. Irrelevant that the true motive may be one of profit. Irrelevant in the same way that D here wants to 'help out' the girl.
* Here, Fisher J separates out motive and intention. Went to CA, but was argued on different points, so Fisher J's thoughts on intention are the highest authority that we have on intention/foresight. Just Wentworth, Piri. Needs further development.

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Mens rea - knowledge Knowledge is not defined in the Crimes Act. Knowledge is often aimed at some circumstance or an essential element of an act. s 246, receiving Guilty of receiving stolen property ... knowing that property to have been stolen ... (or being reckless as to whether the property had been stolen ...) Recklessness = post 2003 amendment from old s258 R v Crooks [1981] 2 NZLR 53 (CA) Crooks received $1800 and bottles of spirits worth $40 from flatmate Bell. Bell had stolen these and given them to him. The money was to repay a debt, the spirits he thought were for a party. Crooks knew that Bell didn't have much money, said he didn't ask questions about what Bell does. Allegedly "I just turn a blind eye to what he does and don't ask questions." "I figured it was stolen as no one comes up with that much money." Appeal: said trial judge had misdirected jury about knowledge, and the equivocality of his statements to the police. Crooks argued that he had only been guessing as to the origin of the money. Crooks - knowledge
* To know - to ascertain by physical or mental perception a state of facts or circumstances which creates in D's mind a certainty that is free from doubt.
? But this would put prosecution at a disadvantage for receiving cases: D would need to have seen the goods being stolen - this is unrealistic usually.
* Knowledge is therefore sometimes treated as including D's subjectivel belief (not suspicion, but actually based on circumstances).
* A failure to inquire does not elevate suspicion in to belief.
* But if the circumstances compel a certain conclusion (here, that property was dishonestly obtained), failure to inquire may be taken in to account by the jury along with all the other evidence in deciding whether knowledge is established.
? A matter of degree
? Like foresight of consequences - if you can see probably consequences but ignore them, can infer intent from this.
* Knowledge is a jury issue of fact, degree and circumstance.

* Here, Crooks decision not to enquire was seen as fatal.
* Wilful blindness was evidential of a subjective belief that goods were stolen. R v Martin [2007] NZCA 386 Trial judge had not left wilful blindness to the jury: made prosecution prove actual knowledge. Defendant appealed on the grounds of wilful blindness. Crown had to prove a higher standard of knowledge anyway, so was prejudiced, but still won the case. Dicta: Crown was entitled to a summary of wilful blindness Test for wilful blindness: It will suffice if the Crown can prove beyond reasonable doubt that the accused had her suspicions aroused as to what she was carrying, but deliberately refrained from making further inquiries or confirming her suspicion because she wanted to remain in ignorance. If that is proved, the law presumes knowledge on the part of the accused. Changes test from Crooks: the test is now substantive rather than evidential (inferential). Wilful blindness creates a presumption for judges that the defence must displace. Not an inference for the jury anymore. Wilful blindness should be formulated simply, so as to not confuse juries. Not recklessness: recklessness requires actual knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur.

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Mens rea - recklessness Mens Rea Intention --> knowledge (Direct intent or knowledge) Oblique intent (Foresight of consequences to level of virtual certainty = jury may infer intent) Recklessness (subjective = consciously running a probable risk)

Don't want to mix intention and recklessness.

Recklessness (Objective = taking a risk the average person would have seen)

Negligence (objectively assessed standard of fault)

Run risk of mixing recklessness and objective negligence, which doesn't take into account mens rea.

Objective fault Recklessness is usually a person running an unjustified or unreasonable risk. Whether the risk is unreasonable is tested objectively.

English Cases R v Cunningham [1957] recklessness - England Tested subjectively - did the defendant consciously perceive an unreasonable risk, yet still choose to take it?
Gas meter wrenched off wall, charged with causing a noxious thing (coal gas) to be taken by a victim. R v Caldwell [1982] recklessness Tested objectively - did the defendant run an unreasonable risk which a reasonable person would have perceived as being unreasonable?
(Regardless of subjective perception, whether the person noticed an 'obvious' risk). Self-induced drunk set fire to a hotel without perceiving the likely risk to people inside. So intoxication would not be a defence if the risk would have been perceived sober. Elliot v C [1983]
Low IQ 14 year old poured white spirits onto the floor of a shed, set on fire to keep warm. Shed burnt down. This was an 'obvious risk', so it did not matter that she hadn't considered the risk, or that her exhaustion and low IQ would have prevented her from perceiving the risk even if she had considered it. R v G [2003] - changed recklessness back to subjective standard. Two children setting fire to newspapers, didn't put them out, set fire to shops causing PS1m damage. Overruled Caldwell, because: i. Conviction of serious crime is dependent on proof of the defendant having caused the actus reus with the relevant mental state. Where defendant hasn't perceived the risk, the defendant is not blameworthy. ii. Caldwell led to serious unfairness. Not moral or just to convict someone on the strength of what another person would have apprehended. iii. A whole body of academic, judicial and practitioner criticism against Caldwell could not be ignored. iv. Caldwell was a majority decision, 3-2, the majority misinterpreted statutory provisions. R v Harney [1987] CA Harney stabbed someone in a pub, charged under s167(b), where offender must mean to cause bodily injury known to the offender to be likely to cause death, and to be reckless as to whether death ensues or not. Stabbed victim in abdomen, said he meant to attack the leg, wanted to injure, not kill. CM88, said "I knew I could have seriously injured him, I wasn't going to kill him." High court gave Caldwell direction: Doing an act that creates an obvious risk, where he has either not given thought to the possibility of the risk, or has recognised some risk but has nevertheless gone ahead with it. Two main limbs of argument of CA:

1. Caldwell direction was not the right test for NZ generally i. Inappropriate for a NZ court.

2. Alternatively, Caldwell direction is inappropriate at least in terms of s167(b) i. Legislative history showed that such an objective test had been removed from s167(d) in 1961 so that "a man cannot be convicted of murder for being stupid." ii. If (b) should be treated objectively, there should be some wording indicating this. R v Howe
* 1981 Springbok tour riots CA agreed with 2, but didn't claim that recklessness generally must be treated subjectively
* Howe was a protestor, charged with damaging an Didn't need to make such a broad statement in this case. unmarked police car. Also, the statutory context may affect the meaning to be given to 'recklessly' - R v Howe.
* In court, said he didn't know it was a police car. Did say that generally NZ uses pre-Caldwell recklessness.
* NZCA said it didn't matter: risk was obvious to average Appeal was successful on legal point, but conviction was not quashed. person that this car was a police car. Judge's summing up contained one technically incorrect sentence, but judge cured fault.
* Parliament didn't expect people in a riot situation to (b) requires specific intent to cause injury known to be likely to cause death. subjectively consider whether property was owned by Once this hurdle is cleared, conviction was all but certain. police or not.
* Said in this statutory context, recklessness was to be assessed objectively. R v Tipple [2005] CA Criminal Page 6

R v Tipple [2005] CA Tipple was accused of "dealing with a firearm with reckless disregard for the safety of others" contrary to s 53(3) of the Ar ms Act 1983. Either disregard means you haven't thought about something at all, or it means you have taken it into regard but not cared ab out it. Disregard: to ignore, to neglect, to be indifferent to, to regard something but treat it as unimportant.
* CA read that this composite expression suggests that it may require more than simply failing to consider the risk.
* Said it required a subjective analysis.
? Paying attention to sometihng, but treating it as unimportant and running the risk anyway.

Facts Tipple was on his parents' farm, supervising a shooting party. Only Tipple had a firearms licence. Supplied guns and ammuniti on. Set up target with a busy road 600m behind, cars were visible behind. Bullet from a high powered rifle with 3000m range hit a car on the road. Not clear who shot the gun, but Tipple dealt with it. Tipple claimed that the bullet must have been a richochet off the grass.
[12] - All three expert witnessess agreed arrangements for the target shooting were inadequate, created major risks for the public. Crown - regardless of whether damage was due to direct hit or ricochet, it was reckless to fire the gun at all in the circumstances. Issues on appeal
* That Tipple hadn't actually dealt with the gun
? CA: his input was enough, and to narrow 'deal with' would have negative policy outcomes.
* Misdirection
? Trial judge didn't say the risk to safety had to be a 'dangerous' risk, it is not enough to mention a 'risk to safety'
# Not such an important issue, ok that judge left it out.
? Judge had referred to the need to be satisfied objectively that it was not reasonable to run the risk in the circumstances, but it should be subjective.
# In NZ, at least in the context of discharging firearms, recklessness is a subjective
# From defendant's point of view, recklessness is subjective - they have to see the risk and run it.
# But before you get to this point, the risk must be unjustified or unreasonable to take in the first place.
? This must always be judged objectively.
# The second limb is subjective.
? Court goes through history of recklessness in NZ, notes its subjective particularly in firearms. All objective decisions pred ate Harney.
* Was Tipple simply unaware of the risk?
? This was a question of fact, and the jury must have been satisfied that Tipple did foresee a risk.
# Like how juries look at evidence to see how foresight --> intention.
? If Tipple's precautions had eliminated the risk, Jury would have found that his actions were not unjustified, and then Jury wouldn't have had to care about Tipple subjectively seeing the risk. R v Hay, 1987 What happens when the accused sees a risk, but decides to run a risk where they believe something won't happen or probably wo n't happen. Hay = arson. Arson has changed in CA61 since '87. s267 = new arson, simpler. Before: arson had to be wilful. Facts Breaking and entering and wilfully setting fire to a building. Friends had stolen a car, wanted to dismantle the car. Took it to a factory where one friend had access. First, siphoned petrol, put in a container. But container had a hole in it. Tried to take out car-seats, but had to use electrical grinder in workshop to get seats out. Did so standing in petrol. There was a risk, but He stood in the opposite direction of the petrol, tried to angle the grinder so that sparks wouldn't go onto petrol. Didn't work, the factory burned down. Arson at the time had to be wilful, had to be caused by an act that you knew would probably cause it, being reckless as to whether or not the damage was actually caused. Here, Hay tried to minimise the risk. Judge: Hay thought it would be sufficient to minimise the risk. "Recklessness should not be equated with negligence. A person who adverts to the question of risk and decides there is non sh ould be free from liability. The fact that a person is mistaken does not mean he is reckless." If accused had tried to minimise the risk, and saw risk as being minimal, then they may have a good case. Stupidity works in the defendant's favour.

D'Almeida v Auckland CC, 1984 Woman pulled over for speeding, sped off from officer, drove around Parnell at 87 kmph. Convicted of reckless driving, trial judge: "driving created an obvious or serious risk, but she gave no thought to her driving at all." - objective. Appealed and won - CA said she was not reckless - had not herself appreciated the risk. We prohibit 3 degrees of bad driving
? Reckless
# Where subjectively see risk and run it
? Dangerous
# Where driving was dangerous, but not subjectively aware of it.
? Careless
# Where driving fails to meet standard of reasonable prudent driver. R v Jones, 1986 Truck driver towing a potato harvester, at some point the arm of the harvester flipped off, went at right angles on the other lane. Caused the death of someone driving the other way. CA: Reckless driving requires subjective perception of risk, dangerous driving is purely objective. Followed R v Gosney [1971]

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