ELEMENTS OF OFFENCES. indictable offence is for more serious criminal acts

Transcription

1 ELEMENTS OF OFFENCES Introduction: 2013 New Zealand criminal law is governed by statutes: Criminal Code Act 1893 (repealed) Crimes Act 1908 (repealed) Crimes Act 1961 (the present act) Therefore, (as referred to in s9 of the Crimes Act 1961) Judges have no jurisdiction to create new offences or refer back to old common law offences as they must be referred to in the current NZ law statutes. [s9 non one shall be convicted of any offence at common law or one created by the law of UK] BUT CL defences are all good unless inconsistent with the Act e.g. section 20 necessity, automatism, impossibility of compliance etc. Terminology: offence is a sort of coverall term indictable offence is for more serious criminal acts S2 of the Crimes Act 1961 defines a crime as any offence for which D may be proceeded against the way of indictment. Therefore a crime = serious offence e.g. murder Note: The Crimes Act 1961 not only sets up offences, but also Recognises defences such as s23 insanity, self defence, or provocation. Procedural function e.g. rules of Appeal and how the prosecution lays charges Other statues that deal with discrete areas of offending e.g. Arms Act, Misuse of Drugs Act, Land Transport Act and etc. Crime parking on yellow lines summary offences are less serious offences, and usually proceeded against by an information e.g. disorderly behaviour Burden of Proof: Criminal the prosecution (Crown) to prove (although some exceptions do exist) all the elements of the offence charged against the defence beyond reasonable doubt persuasive burden where the court/jury must be convinced beyond reasonable doubt (no misgiving) [Note: Presumption of innocence: enacted and affirmed by s25 NZBORA] Civil balance of probabilities where the party alleging the wrong (the plaintiff) must prove their case to be more probable than not (not as high in a scale as beyond reasonable doubt in criminal law)

2 Elements of Criminal Law: Actus Reus Mens Rea Actus no facit reum nisi mens sit rea An act does not make a person guilty unless the mind is guilty. The prosecution must prove all components of an offence - Physical: must have caused prohibited act or failed to do a thing they were required to do by law or state of affairs Intention: with a specified state of mind [The prosecution must prove physical act (actus Reus) of assault and mental frame of mind (mens rea) S2 (1) Assault means the act (must be done by a positive act) of intentionally applying (mens rea) or attempting to apply force to the person of another [intention: have to refer to case law but for our purpose a result you want to achieve ] ACTUS REUS EVERYTHING excluding the defendants mental state usually requires proof of a positive act by the defendant. Also; punishes omissions e.g. stopping after an accident, paying taxes [not as common as acts but still exist as actus Reus]. Situational punishment rather than how you get into that place e.g. drunk in public place, found in enclosed place without reasonable excuse. Possession of prohibited substance [Note: above two points are statuses] Must be contemporaneous at the time of action [actus reus and mens rea] For e.g. not if hurt someone by accident than then later decided it was a good thing they were hurt (i) Acts, Omissions and Contemporaneity: Fagan v Commissioner of Metropolitan Police (1969) 1 QB Car on officers foot Charged with assault Were they contemporaneous? [He argued this on appeal] initial on to foot an accident therefore no mens rea Fagan Argued - after that I didn t do e.g. prevent act that would constitute assault, all I did was fail to drive back which constitute assault therefore actus reus and mens rea not connected Crown Argued initial act of driving onto officers foot was actus reus which continued until wheel was removed -> actus reus of a continuing nature therefore during that period of time mens rea was formed which can be superimposed into continuity of actus reus // in other words both don t have to begin at the same time. James J [see definition of assault on p5 assault is any act which intentionally (or possibly

3 recklessly) cause another person to apprehend immediate and unlawful personal violence.] Act of a continuing nature/consequence must be present at some time but not at the inception provided the action is still continuing (Fagan seated, his body, in car) Bridge J (dissenting minority) accidently on foot after that point did he do anything to constitute assault? No car rested there on its own weight and inertia Fagan not positively acting his failure to act was to remove the car from the officers foot through the mechanisms he could have controlled to engage the car to do so disagrees with the analogies of the majority of judges Fagan decision has subsequently been criticise by legal commentators because it stretched the definition of assault too far by incorporating continuing assaults It is only when the law says that you are legally bound to do something that you can be punished for omitting to do something; a moral obligation is not enough. Note: there is no general duty for omitting to do something despite any moral sense of obligation. Omissions: (1.) Express Liability: - something in the wording of the provision (2.) Implied Liability: - through general language of the statutory provision - grey areas/ gray language Crimes Act 1961: s189 Injury with Intent (1) Everyone is liable to imprisonment to a term not exceeding 10 years who (2), with intent to cause grievous bodily harm (GBH) to anyone, injures any person. [Crimes Act 1961: s2 (1) To Injure means to cause (which is far more ambiguous than to act) actual bodily harm.] Therefore it is reasonable to extend this to include omitting to act in a certain manner. R v Miller [1983] 2 AC 161 (HL) Implied Liability - squatter in unoccupied premises, came home drunk and lit a cigarette, woke up and saw mattress smouldering did nothing about it went to another room and went back to sleep meanwhile the fire caused severe damage to the building charged with arson. Criminal Damage Act 1971 (UK) [CM 9] AR expressed in the alternatives i.e. destroys or damages MR same: intending to destroy/damage or being reckless Does nothing to rectify situation [similar to Fagan] but different to Fagan because of Criminal Damage Act does not require a positive act as assault did in Fagan Therefore the question posed here: Could you destroy or damage through failure? As in, does not put fire out or call the fire brigade? [P11/12 CM discussion on (ask Liam)]

4 Lord Diplock Two theories: 1) Duty Theory: used by the recorder at Millers original trial duty of care when you realise what you ve done [accidental act causes dangerous situation but at that point, if completely without MR law cannot get you, but if you are aware of the situation and fail to rectify danger the duty theory says you are liable Miller s omission/failure to do so = liable]. 2) Continuous Act Theory: (COA) cause a situation and the actus reus continues until you form mens rea e.g. Miller was reckless once he was aware of the tire on the foot he had caused. Lord Diplock said both would do but preferred Duty Theory because of civil overtones and it is easier to explain to juries and he also liked the word responsibilities. House of Lords Miller liable under legal duty to correct the wrong he caused. [All 5 judges in agreement read page 12 CM last 10 lines] Effect was: damages taken to include omissions to act once you ve created a problem you have a legal duty to make it right when you become aware you have caused it. In NZ, arson is dealt with in the Crimes Act Crimes Act 1961 s267 (1) Everyone commits arson and is liable to imprisonment for a term not exceeding 14 years who - (a) Intentionally or recklessly damages by fire or by means of explosive any property if he or she knows or ought to know that danger to life is likely to ensue: or.. (b) etc Nicholson v Department of Social Welfare [1999] 3 NZLR 50 Benefiter got job told case officer kept getting money again, in March, sent it in writing continued getting benefit for 6 months initially let money build up but then bought a knitting machine with some of it but someone tipped the DSW off charged under s127 of Social Security Act 1964 [reference on CM p 13 top of right hand side column]. Omissions: must have failed to act contrary to accrue legal duty (check with Liam). Difficulty because conflicting provisions with s127 and s80a. Section 127 creates the broad offence and is therefore a broad provision, whereas s80a is narrow and clearly imposed duty. Issue: Should she have told them every time a direct credit to her bank account arrived? District Court: Guilty because recipient or benefiter is under a continuing obligation not keeping on and on at the DSW was a continuing omission. Appeal to the High Court was dismissed despite s80a forthwith did not end obligations because of continuing obligations under s127. Issue for COA how to reconcile conflicting provisions of s80a and s127 How the Court sided: Majority: Richardson P and Keith J A persons duty to disclose arose under s80a not s127, and because she had already discharged that duty she was no liable. Failure must consist with a

5 failure to comply with a legal obligation consistent with all authorities on omissions in general law cannot punish someone for omission unless specifically set out in law. The duty is set out in s80a. Therefore it doesn t mean the idea of continuing omission reasoning can be adopted. Minority: Blanchard J Section 127 Offence created a continuing duty to disclose relevant information to her entitlement. Believed it supplemented duties set out in 80a. Should not be entitled to benefit from DSW s failure to act (administrative mistake) put her duty quite high e.g. every time paid fortnightly. The fact she d spent some of it, in terms of mens rea and s127 suggested she had mislead to DSW BUT [see page 17 paragraph 27 CM] IMPORTANT S86 if overpayment; department can recover Summary: s80a (duty created) and s127 (provides penal consequences for breaching duty) had to be read together. S127 cannot stand alone because it would leave s80a standing alone, but s80a cannot be left out in the cold because no offence is written into it [S127 is the reason for narrower reading (Majority)] General principle of strict construction operates where there is some genuine doubt as to how to interpret a provision then should at least be interpreted in a way that at least favours the accused person (they aren t disadvantaged) No general liability for ommissive conduct and it should not be readily inferred. CM page 20 cites R v Chilton [2006] 2 NZLR 341 (Court of Appeal) subsequently confirmed the Nicholson judgement (reasoning from the majority judges). (ii) Statuses and States of Affairs: Situational offences can be liable even though no readily available active conduct or omissive behaviour can be found enough to prove specified state of affairs E.g. found somewhere you shouldn t be, or vagrancy (empty pockets to show police) does not equal a means of support. Though these examples are likely to be found at the lower end of offending. Summary Offences Act 1981 contains many of these types of offences such as s29 found on property without reasonable excuse (doesn t matter how you got there or what acts or omissions got you there just the fact that you ARE THERE). R v Larsonneur (1933) 24 Cr App R 75 CM21 1 page brief case where a French woman entered the UK conditions were on passport changed while in the UK which had effect to leave UK immediately kicked out to Ireland which then deported back to England found to be an alien in UK mere status enough to been viewed as actus reus and found guilty through circumstances beyond her control Aforementioned guilt not due to her own personal choice but by violating conditions on the passport

6 This decision was criticised as Judge could have interpreted found in a more literal sense (as she was not found due to being in police custody the entire time), and argued impossibility of compliance due to her actual impossibility to comply with said conditions. Should not be liable for state of affairs she didn t choose Today, if occurred in NZ it would be held as strict liability don t require part of mens rea but once actus reus proved the burden of proof shifts to defendant to prove on balance of probabilities that he/she w/out fault (did all in their power to avoid situation) unless legislation say something specific. NZ Case on found : Brown v Police [1985] 1 NZLR 365 (CA) NZ COA in this case said being found requires you to be discovered some comes across you/seen/discovered/perceived to be present but when already in company of other person you never were discovered as always there. Larsonnuer was not by choice etc BUT would come under strict liability as aforementioned. Prosecution must also prove certain things about the AR in terms of the accused conduct by proving responsibility for act, omission or situation. 3 ways responsibility can be challenged: 1. May not actually have caused prohibited act or omission CAUSATION 2. Where robotic state ensues (no control over body or action) should AR be pinned on you? (Campbell) (iii) Causation: Where the prosecution must prove the defendant was the real cause of the actus reus. Prosecution must also prove that it was voluntary and that other options were available. E.g. with Murder/Manslaughter: Get in fight and person you fight gets badly injured and must go to hospital for medical treatmenthowever they administer wrong treatment and they die. Responsibility: the negligent doctor/nurses or the initial aggressor (you)? Kilbride v Lake [1962] NZLR 590 CM22 3 page case where issue of causation in relation to the minor offence failing to display a current WOF on a MV is evident. Defendant parked car on Queen St displaying a current WOF returned to car and the WOF was gone plus ticket was on windshield facts not disputed as must have been an intervening third party. Def argued mens rea of offence could not be proved against him b/c he had no idea Respondent argued in return that such a minor offence does not require an element of MR therefore must be strict liability case where MR not required. Woodhouse J argued it was irrelevant either way before it is established if appellant committed the AR or not. Therefore, the requirements of AR for this offence: 3. No question they did it but no physical alternative (Tifaga) 1. Operating MV on public road positive act 2. Omitting to display current WOF omission of doing 1 is accompanied by 2.

7 Def had permitted car to be on a public road (1 = ok) but have they done 2? Campbell charged with murder Woodhouse J ruled that the def. had not done 2, as the WOF was present when he left the car. Therefore, Woodhouse J stated the chain of causation was broken due by an extraneous third party (or novus actus interveneins). Also, as there was no other course of action available Woodhouse believed there to be no voluntary element either. CM 24 top left:...it is a cardinal principle that, altogether apart from the mental element of intention or knowledge of the circumstances, a person cannot be made criminally responsible for an act or omission unless it was done or omitted in circumstances where there was some other course open to him. Further down:...there was no opportunity at all to take a different course, and any inactivity on the part of the appellant after the warrant was removed was involuntary and unrelated to the offence. The onus is, therefore, on the prosecution to show/prove causation/voluntariness. (iv) Involuntary Conduct: This is different to the involuntariness in Kilbride, where there was no other opportunity to behave differently. IF the defendant performs an actus reus while in a state of automatism (cannot control one s body or actions etc) then the act is said to be involuntary and there is no element of AR. Automatism can be both sane and insane, where sane is due to an external effect (i.e. concussion) and insanity is obvious (i.e. medically proven instability of the mind). R v Campbell (1997) 15 CRNZ 138 CM 25 6 page case on element of involuntary conduct (in particular sane and insane automatism): -visited the deceased friend of accused father deceased smiled at accused and touched his leg this reminded C of Mr M who abused him as a child C snapped and beat deceased to death Two psychiatrists evaluated C: 1) First psych argued C had post traumatic stress disorder, not a recognised legal illness but enough to trigger this sort of attack after suffering abuse etc as a small child. 2) Second psych argued it was just a flashback syndrome type of disorder where actions could not be controllable due to severity of emotional damage and built up oppression. Found arguments for insanity or automatism would not have worked. Insanity common stat defence in Crimes Act where the accused must prove on balance of probabilities they have suffered either (i) natural imbecility or (ii) a disease of the mind to such extent as to render incapable. Automatism where something external happens, where otherwise would have sound mind, which causes involuntary action i.e. concussion etc. Campbell didn t fit within any of the recognised parameters, and therefore C s lawyer tried to argue the jury should have been allowed to rule in involuntary act (creating a third category after sane and insane automatism). However, the Judge refused Jury found guilty of manslaughter (not murder) on provocation grounds. C appealed because he wanted acquittal. COA: did not agree so appeal was dismissed

8 Tomkins J If a person acts involuntarily, in a sense that they are independent of will or thoughts, it can only be of automatism or insanity if evidence supports neither automatism or insanity then the accused is responsible except if provocation will reduce murder to manslaughter BUT in another jurisdiction diminished responsibility (watered down insanity) could have applied (not in NZ Law). [ Mental abnormality which substantially impaired ability to reason & mental responsibility but only a quasi-defence (same as provocation) so only reduces murder to manslaughter and doesn t escape liability altogether. ] PTS disorder evidence indicated he was aware of what he was doing but lost the power of self-control (furious) provoked insanity/automatism etc. The awareness is shown by the axe/poker/car keys/new battery/outside light/sold car/ told father etc. RESULT --- involuntariness kept very narrow. (v) Justifiable or Excusable Acts or Omissions: In some situations prohibited acts or omissions are justifiable, such as self defence, duress, and necessity. Another defence is impossibility of compliance where you physically cannot do what the law says you are obliged to do (the law cannot punish for failure to do the impossible). Tifaga v Department of Labour [1980] 2 NZLR 235 CM page case from COA T came into NZ in 1974 on a work permit which was extended from time to time until 1979: one condition it could be revoked at any time and be required to leave within a set period of time T went to prison advised just before he due out to leave NZ received 3 weeks notice argued he didn t have enough money for flights therefore failed to meet requirements overstaying. T s Lawyer attempted to apply facts into Kilbride and claim consistent with involuntary conduct. Richmond P: distinguished Kilbride v Lake couldn t be involuntary as K lacked conscious volition K blissfully unaware/part of AR occurring behind the scenes whereas T lacked personal choice because lack of conscious volition should be looking for impossibility (CM33 col 2 top total absence of fault) involuntariness Woodhouse J: uses same reasoning & words as in Kilbride but distinguishes the facts (see CM34 R) continuing responsibility upon T throughout his time in NZ have practical means to uphold terms jail term intervening cause lack of finances to buy tickets not an extraneous cause the same way the lack of WOF was in Kilbride Main judgement T quite different to K knew temporary permit had been revoked and 3 week limit to leave the country therefore failed to do so was a conscious failure However, case of impossibility of compliance. Public Policy Considerations: legislation not intending to punish failure to perform the impossiblewhether viewed as a defence of a part of AR impossibility of compliance shouldn t be pushed too far Only arises when defendant, in a real sense, is unable to avoid prescribing due event If you are the author of your own downfall able to claim impossibility of compliance shortage of money won t generally be an excuse i.e. parking in a metered space with no money to pay the meter = impossibility to comply? Not even close

9 Impossibility of compliance would only apply where extreme situations occur i.e. you are mugged for your remaining cash on the way to buy airline ticket or in hospital or prison when the time period expires therefore TRULY impossible to comply... Mens Rea However impossibility will not say you from liability where the problem would have been avoided by due diligence (responsibility to keep aside money to travel home from NZ in the circumstance of your permit being revoked) Appeal dismissed Summary: Kilbride was involuntary didn t cause part of AR Tifaga couldn t say because he didn t do the AR Richardson P draws upon some grey areas in law (CM 36 col 1/CM 39 col 1) Impossibility more of a defence than an attack element of offence because OK; I did it but due to circumstances x,y,z BUT in Civil Aviation Department v MacKenzie [1983],there were new ways of looking at certain offences in NZ strict liability no proof of mens rea (would have applied in T) def presumed liable when AR is proven then defendant must show on balance of probabilities that they were free from fault covers specific claims e.g. involuntariness, impossibility of compliance... (?) + K would now have valid no fault defences under MacK today but T wouldn t because didn t take all reasonable care/diligence. Campbell (murder) a strict liability defence so wouldn t apply. AR easier to prove than MR (usually). The term mens rea refers to any mental element in the definition of an offence which P must prove in addition to the actus reus (cognitive aspect of the offence). Three forms of MR: 1. Intention to achieve specified result i.e. do an act intending x to happen 2. Knowledge requires you to know of a certain fact or circumstance i.e. driving knowing you don t have a valid or current licence (driving while disqualified) 3. Recklessness spans both intention and knowledge, covering crimes where result is required and/or where knowledge is required (something alternative to 1 and 2) MR can be expressed in statutory provisions through 1, 2 or 3 and can be expressed, implied or presumed: Expressly: one of intention, knowledge or recklessness is written into a provision. Impliedly: not one of the above 3 words but a verb/adjective that implies parliament intended D to put their mind to the act i.e. dishonestly obtaining property. Presumed: used in serious offences that don t have an expressed/implied element of MR, where the penalty makes Courts assume parliament wanted there to be a mental element (therefore they say as a matter of principle there is a mens rea). MENS REA IS ASSESSED SUBJECTIVELY. However the substantive requirement (that mens rea is assessed subjectively) is different to the evidentiary requirement (how subjective mens rea is proved). D s state of mind must be subjectively judged on what D did at the time of the offence.

10 In making this judgement we draw reasonable inferences from the evidence which involves an objective element i.e. if D denies intention but voluntarily did an act that causes the consequence and there was a high probability that consequence would occur as a result of D s act, the Court or jury may conclude D must have foreseen there was a high probability that his act would cause the consequence. That inference may lead to conclusion that D intended the consequence. But can t be guessing game, must be beyond reasonable doubt However this conclusion does not HAVE to be drawn, rather it must be evidence that must be weighed with all the other evidence in determining the issue. If MR was tested OBJECTIVELY it would be unfair as often the defendants are not normal/ average/reasonable people. Example s167 of Crimes Act 1961 defines murder: Culpable homicide is murder in each of the following cases (a) (b) (c) (d) If the offender means to cause the death of the person killed: If the offender means to cause to the person killed any bodily injury that is known to the offender to be likely to cause death, and is reckless whether death ensues or not: If the offender means to cause death, or, being so reckless as aforesaid, means to cause such bodily injury as aforesaid to one person, and by accident or mistake kills another person, though he does not mean to hurt the person killed: 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 anyone. Hypothetically, suppose there is a very high possibility death would occur because of what the defendant did i.e. close range gunshot defendant denying it but evidence suggests knowledge that death would/could occur as a result of pulling the trigger jury must be satisfied beyond reasonable doubt that evidence ascertains MR. (i) Intention Intention is NOT defined by statute therefore the question is do we take a broad or narrow definition of the word? A persons aim or purpose can be conveyed as intention. Acts are intentional when acts in order to bring about a certain result or consequence (DIRECT INTENT) When defining intention, should it just be direct or oblique? Direct Intent -- (direct aim/purpose x ) Oblique Intent -- (foreseen side effect y ) Should your MR include what you were aware of but didn t intend? (I.e. the bomb on a ship example where want to sink ship and get insurance money etc but people killed in the process which you didn t intend but were aware of the chance). R v Maloney [1985] 1 AC 905 (HL) CM page case where Maloney and Stepfather were having a few drinks ended up getting drunk had a shooting competition where Maloney won father says pull the trigger if you have the guts Maloney did w/o knowing where it was aiming and Stepfather died. Convicted as trial judge said to the jury the only defence was lack of intent (ignored the fact that M did not aim the gun). COA ended up dismissing the case and HOL ruled in favour of acquittal claiming M did not aim the gun reduced murder to manslaughter. Lord Bridge: Ruled that M did not aim the gun, and in obiter decided to clarify the law on intention after HOL was divided in Hyam case on what intent was. (Note: His obiter discussion applies to all statutes with intention, not just murder) 1) Foresight of consequence how to treat oblique intent? a. NOT to be treated as an alternative to intent

11 b. Foresight of consequence is merely evidence from which a jury may infer D must have had intention c. MUST foresee the consequence as an overwhelming possibility. Thus in any case you have to look at the degree of foreseeability in that particular situation. 2) What degree must D have before a jury may be able to infer intention? a. virtual uncertainty, moral uncertainty, overwhelming uncertainty before a jury could say oblique intention must be able to say one of the above e.g. virtual certainty b. Golden rule is generally avoid explaining what is meant by intent unless necessary to avoid misunderstanding (rare circumstances) NB: Foresight of consequence is not the same as actual intention but may be used as evidence (at least in murder) to prove intention. 3) Intention v motive/desire (these are two separate things) a. Manchester plane example man intends to travel to Manch to escape pursuit despite Manch being the last place he wants to be = his motive is to escape pursuit NB: Lord Bridge regards motive narrowly as something desired as an end itself (a primary desire) rather than a means to an end (a medial desire). 4) Must D s actions be aimed at a person? a. Distinguishes from Hyam in using terrorist analogy bomb not aimed at anyone in particular but ends up killing bomb expert liable for murder 5) Guidelines for trial judges a. Invite jury to answer two questions: Was the death or injury a natural consequence of D s actions? And; b. Did D foresee the consequence as being a natural consequence of his act? c. If yes to both, it is proper inference for the jury to infer that D intended that consequence. NB to guidelines Guidelines don t refer to the probability of the consequence occurring. They do not convey his earlier notion of overwhelming certainty and almost contradicts what he said before. R v Hancock and Shankland [1986] 1 AC 455 (HOL) Facts two coal miners on strike were pushing concrete blocks off a bridge to scare away striker breakers one block hits taxi killed taxi driver Argued Only intended to frighten workers being taxied to work, not meant to go in taxi path block was intended for middle of lane HOL Lord Bridge was wrong in his guidelines to the trial judges but test for trying to work out intent from foresight of consequence made in this case is no better. Lord Scarman argued the greater the probability of result occurring the more likely the defendant intended that thing...

12 R v Nedrick (1986) 83 CR App R 267 (CA) Facts Ned set fire to house of a woman whom he bore a grudge for one of woman s children died in the fire and N was charged with murder COA Lord Lane CJ argued that before the jury could infer intention they d have to be sure the defendant foresaw the result as a virtually certain consequence. R v Woolin [1999] 1 AC 82 (HOL) CM 53 7 page case where a baby was thrown onto a hard floor and died as result defendant charged with murder Trial judge used the term substantial risk to explain intent to jury higher court found substantial risk was not extreme enough watered it down to recklessness. COA dismissed appeal HOL All Lords agreed with Nedrick ruling on virtual certainty requirement for the degree of foresight of consequence. Lord Steyn (CM 57 see italics and this at 59) By using the phrase substantial risk the judge blurred the line between intention and recklessness, and hence between murder and manslaughter. Unless jury feels sure that death or serious grievous harm was a VC and the defendant knew that would be a result of their actions, then the defendant shouldn t be found guilty of murder (Left it up to the jury as to whether foresight = intent). The jury must reach this decision based on the considerations of the evidence. NB: Remember that what Bridge in Maloney said in obiter applies to all result crimes whereas Steyn s argument only applies to murder. R v Matthews and Alleyne [2003] Crim LR 553 CM61 1 page case where the defendants attacked and robbed a 7 th form boy had no cash on his bank card defendants threw him off a bride had heard the victim say I can t swim victim drowned. Trial Judge If the drowning was a virtual certainty and the defendants knew this was the case then intent should be recognised and murder charge applies On appeal Appeal dismissed as Judge went further than Maloney, Woolin or Nedrick BUT in practice there is very little difference between rule of evidence and substantive rule of law when virtual certainty exists. NB backing away from previous HC/COA/HOL decisions. (Suggests Eng Courts now more likely to treat foresight of consequences as intent) In the rare cases (referred to in Maloney) the jury will be asked to consider: 1. Whether the result x was virtually certain to occur as a consequence of the defendants voluntary act and; 2. Did the defendant foresee the result x as virtually certain to occur then; 3. The jury will be invited to infer (or find in Woolin) that the defendant intended the result x NB: Small problem as same evidence used in step 2 and 3 by jury, so jury is really invited to evaluate their conclusion as to foresight in to a conclusion as to intention. New Zealand cases: R v Piri [1987] 1 NZLR 66 (CA) (as per Cooke P)

13 Cooke points out that Eng cases (under Maloney) have no bearing on s167(d) of Crimes Act on murder in NZ though does have an effect on (a) which refers to intent. R v Wentworth [1993] 2 NZLR 450 CM 63 5 page case where there was an application to the HC by W under s347 of Crimes Act that there was no case to answer assisting another person in the home bake manufacture of heroin after W sold huge amounts of panadene to another person charged with being party to an offence. S66 of the Crimes Act 1961: s66 Parties to offences (1) Every one is a party to and guilty of an offence who a. Actually commits the offence; or b. Does or omits an act for the purpose of aiding any person to commit the offence; or c. Abets any person in the commission of the offence; or d. Incites, counsels, or procures any person to commit the offence. Subsection A mainly covers principle offender, while B covers the secondary i.e. Wentworth CM 64 bottom left column shows what Wentworth was believed to have known about the offence in question. W argued whether there was enough evidence to accuse him, as for the purpose suggested that you needed desire or motive, meaning more than intent. Thus mere knowledge is not enough, did not want her to make heroin so not liable. Fisher J: Disagreed, intention normally embraces desired consequences (direct intent) AND unwanted but unforeseen consequences if degree of certainty is high enough (therefore oblique intent is being made part of substantive form of intent). This contradicts English cases (obiter statements starting from CM65 col 2 line 25). Fisher J raised the question that maybe something less than virtual certainty may be enough for foresight of consequence... Assumes direct intention involves desire/want/motive again contradicting Eng cases Believed that D acted purposively as he acted in a certain way which he knew would affect consequences Gunshop analogy selling gun knowing criminal is buying it Police v K [2011] NZCA 533 K is convicted on circumventing a parenting order under the Care of Children Act. K was supposed to drop child at school but did not do so as the child was ill. Said he was unable to contact Mrs D (requirement under the Act). HELD: He was aware of his obligations and ignored them. In doing this he developed an oblique intent to circumvent the parenting order. The test for oblique intent in NZ is therefore probably virtual certainty. (ii) Knowledge

14 Similar to intention as it is not defined in the Crimes Act 1961, and therefore each offence must be looked at separately. Usually the appropriate MR is when there is a certain fact/circumstance you must know about. As often knowledge of a circumstance is required, it could be argued the MR of knowledge seems more fitting than that of intention. Knowledge is tested subjectively all about what the defendant KNEW I.e. like receiving S246 of the Crimes Act 1961 (1) Everyone is guilty of receiving who receives any property stolen or obtained by any other crime, knowing that property to have been stolen or so obtained, or being reckless as to whether or not the property had been stolen or so obtained. NB: Under the old s258 there was no mention of reckless but now s246 makes it easier to define or prove receiving. R v Crooks [1981] 2 NZLR 66 (CA) CM 67 6 page case on receiving. Facts are Crooks flatted with guy called Bell Bell burgled pubs around Auckland stole many bottles of liquor and $6000 cash Police found $1800 in a bag in flat and 3 bottles of liquor in Crooks car Crooks said to police I just turned a blind eye and I figured it was stolen he was convicted of receiving but it went to the COA COA On appeal Crooks argued that the trial judge had misdirected the jury more doubt in what he said compared to how the judge explained it he argued he was really only guessing etc Judge from COA agreed with the direction of the jury at CM 69 the Judge argued A person is said to know something when they have ascertained, by physical or mental perception, a state of fact or circumstances which creates in his mind a certainty that the point of his is free from doubt. But probably with this definition in a receiving case would have to establish person receiving the goods was there to see them being stolen. Case law treated knowledge to include ones belief (which is treated subjectively according to evaluation of evidence or info) but belief is not the same as mere suspicion A failure to enquire does not elevate suspicion into belief but if circumstances compel a conclusion, failure to inquire may be taken into account by jury along with other evidence in deciding if knowledge is established. Wilful blindness then comes into play purely judicially devised and often applies in knowledge/recklessness situation where defendant deliberately closes their eyes to the obvious and don t ask further questions or inquire further because they don t want to know the result they presume is the answer. A person is wilfully blind when they are virtually certain of the outcome. This can relate to recklessness when you shut your eyes to a known risk. R v Martin [2007] NZCA 386 CM 72 3 page case where Martin was convicted of importing in excess of 3 kilo of high quality cocaine into NZ the problem arose: did she know the cocaine was in her luggage? Martin argued she could only be found guilty if she knew the cocaine was in her suitcase (i.e. put them there herself or perceived someone to put them there) argued further even if wilful blindness occurred then trial judge had not experienced this well enough to judge Failed on both arguments. COA Crown entitled to wilful blindness direction

15 Test applies Def of wilful blindness: suffice if 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 enquiries or confirming her suspicion because she wanted to remain in ignorance NB: Easier for Crown in this case compared to Crooks because in Crooks suspicion wasn t enough but in Martin suspicion will be enough. COA said this test was based on Canadian case. Add paragraph 11 CM 73 (iii) Recklessness Recklessness is probably the most important form of mens rea, as it often is used as an alternative to MR (i.e. you will be liable if you intend X or if you are reckless ) and is easily proven. Recklessness is where the defendant is consciously aware of a risk involved in doing that course of action but continues to run said unjustified risk. Often expressly used in a statute i.e. reckless driving or used in tandem with another provision (as above). Main question: How do we measure the point where something is a justified risk and something is unjustified and therefore reckless? 1) Where ever the risk is being run it must be unreasonable and unjustified unr and unj are tested objectively but are often ironed out earlier in the process when the prosecution decide to prosecute or not... 2) What degree or level of risk would be required for recklessness? Note it does not require foresight of virtual certainty Mens Rea Intention Knowledge (Direct Intent and Knowledge) Oblique Intent (foresight of consequence to level of virtual certainty a jury may infer intent) Recklessness (subjective = consciously running a risk) Recklessness (objective = taking a risk the average person would have seen) Negligence (objectively assessed standard of fault) Objective Fault Note Generally accepted that recklessness should be tested subjectively. Thus a problem arises if intention is watered down to become of mere probability, it runs the risk of turning into recklessness. Thus foresight of consequence has to be virtually certain. Likewise, if you watered down recklessness too objectively it runs the risk of turning into negligence. In old England it used to be tested objectively hence rough decisions but now tested subjectively. English Cases: R v G and another [2003] 3 WLR 1060 (HoL) CM77 11 page case involving Cunningham recklessness subjective concept but the 1981 Caldwell doesn t just cover situation of individual who ran the risk but to the average who would have seen the risk therefore imputed onto you somebody else s standard (harsh on accused). Caldwell followed until 2003(until this case). NZ HC followed Caldwell ; in line with Eng. One COA case followed this also.