STRICT AND ABSOLUTE LIABILITY OFFENCES... 1 FATAL OFFENCES AGAINST THE PERSON HOMICIDE... 4

Transcription

1 TABLE OF CONTENTS STRICT AND ABSOLUTE LIABILITY OFFENCES... 1 FATAL OFFENCES AGAINST THE PERSON HOMICIDE... 4 NON-FATAL OFFENCES AGAINST THE PERSON ASSAULT OTHER ASSAULT SEXUAL OFFENCES PROPERTY OFFENCES SUBSTANTIVE DEFENCES SELF-DEFENCE DEFENCE OF PROPERTY INSANITY INTOXICATION DURESS NECESSITY DURESS OF CIRCUMSTANCES COMPULSION PARTY LIABILITY CONSPIRACY ATTEMPT

2 CLASSIFICATION OF OFFENCES STRICT AND ABSOLUTE LIABILITY OFFENCES (1) Mens Rea offences true criminal offences requiring MR 9 Offences that state MR is required 9 Offences for which MR is implied (i.e. AR is present, but MR is not clearly identified) (2) Strict Liability prosecution/crown proves AR, defence proves the absence of fault (reverse onus on the balance of probabilities) (3) Absolute Liability offence complete upon proof of AR, no defence of absence of fault available STRICT LIABILITY The prosecution is required to prove the AR, but in relation to the elements of the AR, there is no MR element to prove. The defendant can prove absence of fault in order to exculpate themselves. Æ If the Crown can prove AR, then prima facie, they have proved their case (i.e. established the crime) and they don t have to prove that MR was present. Æ Under strict liability, the the defendant can avoid liability by proving a total absence of fault that is, the burden is on the defendant they have taken all reasonable steps (balance of probabilities) to avoid the commission of the offence. Case example: R v City of St Sault Marie [1978] (SC Canada) o This case introduced strict liability as an alternative to absolute liability i.e. the prosecution is required to prove the AR elements of the offence beyond a reasonable doubt, but there is no MR element to prove. o Permitted convictions without proof of subjective/objective fault; but allowed a defence of reasonable care (defence of total absence of fault confirmed) 9 Onus on the defendant; on the balance of probabilities. o For public welfare regulatory offences, presume strict liability, not absolute liability. Defence to strict liability: total absence of fault ê Negates negligence must show that all reasonable care was taken, yet the result was still produced. ê Defence of due diligence all reasonable care taken to no avail. Case example: Civil Aviation Dept v MacKenzie [1983] (NZCA) o Endorsed St Sault Marie and thus strict liability offences officially recognised in NZ. o Construe public welfare regulatory offences as strict liability defence of absence of fault or due diligence available 9 The onus is on the defendant to prove defence to balance of probabilities standard; strict liability recognising a MR element not to be equated with absolute liability which totally excludes MR ABSOLUTE LIABILITY The offence is complete upon proof of the AR (beyond reasonable doubt). There is no requirement to prove MR and the defendant cannot claim absence of fault in their own defence. Defence to absolute liability ê A combination of involuntariness (or impossibility) and absence of fault on the part of a defendant will be sufficient to exculpate. Case example: Kilbride v Lake o Convicted no warrant. Had parked, warrant become detached. o AR of the offence was "the presence of the car combined with the absence of the warrant" failure to replace warrant was involuntary since he had no opportunity to rectify the situation. Case example: Finau v Dept of Labour o Defence of impossibility allowed Case example: Tifaga v Department of Labour o Involuntariness must be accompanied by absence of fault o Inability to remove himself from country before permit expired was attributable to his own failure to retain enough money to buy an air ticket. Suggests that necessity may also be a defence, provided it does not arise from the fault of the defendant. o If impossibility is a consequence of earlier actions of the accused, they will have to prove absence of fault 1

3 CLASSIFICATION PROCESS (who need to prove what and to what standard) Pre-Millar categories of offences and corresponding MR: (1) Simple MR (standard for truly criminal offences) MR is intention or recklessness (2) Assumed MR intention or recklessness is rebutted by an honest belief (3) Assumed MR rebutted by a defence of honest and reasonable belief (4) No MR required, but a defence is available of honest and reasonable mistake the burden is on defendant to prove to balance of probabilities standard (5) Strict liability no MR but defence of absence of fault available where burden is on defendant to prove to balance of probabilities standard (6) Assumed MR rebutted by a defence of honest belief must show on balance of probabilities that defendant did not know of wrongfulness of act (7) Absolute liability Case example: Millar v Ministry of Transport [1986] (NZCA) o Reduced to these possible categories of offences: (1) Statutory MR elements (2) Presumption of MR (3) Rebuttal of MR ª If MR is not rebutted à recklessness implied ª If MR is rebutted à strict or absolute liability (1) Statutory mens rea elements ê Parliament has already provided what the MR requirement is for the AR (2) Presumption of mens rea (implied mens rea) ê In common law, there is a presumption that MR is an essential element of a serious crime even when it is not specifically stated, we presume that MR is required. 4 Prosecution to prove intent ê However, does this presumption apply to lesser statutory offences? Case example: Lim Chin Aik v R [1963] o Issue: whether or not MR is an essential ingredient of a crime o Held: House of Lords held that presumption of proof of guilty intent (MR) is an essential ingredient of a crime/offence and hence the presumption of MR does apply to lesser statutory offences. Case example: Sweet v Parsley [1970] (HL) o Facts: The defendant was a landlady of a house let to tenants. The tenants were smoking cannabis in the house and the defendant was not aware of this activity. The defendant was convicted under s 5 of the Dangerous Drugs Act 1965 of being concerned in the management of premises used for the smoking of cannabis. The statute did not state any requirement of MR of the offence. o Issue: When a statute does not explicitly state the MR requirement of the offence, is that offence a true crime (prove AR and MR (knowledge)) or does the Crown need to prove the AR (the fact the defendant managed a house where illegal drugs where being used)? 9 i.e. since she had no knowledge of the circumstances, thus, could not expect reasonably to have had such knowledge? o Held: The HoL quashed the defendant s conviction and held that it had to be proved that the defendant had intended (MR) the house to be used for drug-taking i.e. if a statute does not explicitly state the MR requirement for the offence, the presumption is that full MR is required (intention or knowledge). 9 Lord Reid: start with the words of the Act then presume that MR is required for that particular offence. Then look at: Context comparison of one offence with other offences in the same statute Parliamentary intent Nature of the offence Stigma/public offence broad policy matters» "a stigma still attaches to any person convicted of a truly criminal offence, and the more serious or more disgraceful the offence the greater the stigma". 2

4 Case example: R v Strawbridge [1970] (NZCA) o Facts: The defendant was caught cultivating cannabis. She argued that she did not realise they were cannabis plants; rather she honestly believed that plants were mustard seeds. 9 Defendant convicted under s 5(1)(c) Narcotics Act 1965, but the statute was silent on MR element o Issue: Was knowledge that the plants were prohibited (i.e. cannabis plants) an element of the charge, and thus required to be proved by the prosecution? o Held: CA held that, while the prosecution did not need to prove knowledge in order to make out a prima facie case, and knowledge should be presumed in the absence of evidence to the contrary, it was open to the defendant to point to evidence that she honestly believed on reasonable grounds that her act was innocent. 9 Half-way house concept Crown does not have to prove knowledge, as knowledge is assumed. 9 Defendant can bring evidence of honest belief on reasonable grounds that her act was innocent (i.e. the prosecution proves AR, and the onus is on the defendant to prove lack of guilty mind (honest and reasonable mistake). By growing the plant, the defendant is assumed to know it is prohibited. But if the defendant can raise reasonable doubt as to whether she knew it was prohibited, and the prosecution could not dispel this doubt, the defendant is entitled to acquittal (3) Rebuttal of mens rea requirement ê How do we displace the presumption of MR? What sort of things would we need to look at to displace the presumption? ê When we have rebutted the legal presumption that MR is required, we rebut it by looking at the various factors such as: 4 Subject matter 4 The statutory context ú The language/wording of the statute ú Other sections in that statute ú The purpose of the statute ú The Judicial history of the statute (precedents) ú The Legislative history of the statute 4 The social context ú Is the offence to be regarded as merely a public welfare regulatory offence, or is it to be regarded as a truly criminal offence? ú Does moral stigma attach to conviction? ú The social danger which the offence is aimed at preventing 4 The punishment/penalty and stigma 4 The enforcement of the law ú Without the imposition of strict liability or absolute liability, could the Act possibly be enforced? If MR is not rebutted à recklessness implied If MR is rebutted à strict or absolute liability HOW TO DETERMINE IF IT IS A STRICT OR ABSOLUTE LIABILITY OFFENCE? Words of the statute scheme of the statute, certain words can also imply MR Overriding judicial history legal precedent for the issue Basic presumption that MR is required for every offence General rules for interpretation (1) Presumption against absolute liability the statutory language must be very clear to establish that kind of offence. (2) If offence in Crimes Act, it is presumed to be a MR offence. (3) Presumption of MR is your starting point, but if the offence is regulatory in nature (for the protection/welfare of the public, regulating a particular trade or activity) ask whether presumption is displaced à if strict liability offence, the language of the neighbouring provisions or statute as a whole may be indicative of the statute s purpose (4) Look at language of the provision, if it includes mental words intentionally, knowingly, with intent, usually indicates a MR offence (these words, however, are not found in all MR offences; moreover, a provision may use such words and not be interpreted to have created a MR offence) (5) Look at language of neighbouring provisions, if adjacent provision is evidently an MR offence (i.e. uses mental words and the provision in question lacks such language) that may be an indication that the provision does not set out a MR offence (6) Look at statutory history if provision formerly incorporated MR language, but it has been amended, that may be an indication it is not intended to be a MR offence (7) The greater the stigma of conviction, the stronger the inference of MR status (8) The greater the penalty the stronger the inference of MR status (absolute / strict liability generally inconsistent with imprisonment) (9) Administrative efficiency is it difficult or impossible to enforce the act without strict liability, the more difficult proof of negligence or lack of due diligence is for the Crown, or the easier such proof would be for the A, the stronger the inference of strict liability (10) Precedent how has the given offence been interpreted by the courts? 3

5 FATAL OFFENCES AGAINST THE PERSON HOMICIDE DEFINITION Is it homicide? No Discharge without conviction No Manslaughter Yes No Culpable homicide? Yes Is it murder? Yes Conviction IS IT HOMICIDE? s 158 requires: ((i) causing of death (ii) of a person (iii) by another person) (1) The victim to be human being (2) The defendant to be a human being (3) The result is the victim s death (4) The defendant s actions to cause the victim s death (i.e. causing of death) Is the victim a human being? ê Have they become a human being? (Section 159) ê This section relates to the requirement of the victim being a human being. If the child is not yet a human being, they are coerced by the specific offence provided in s 182 Killing unborn child ê Are they still a human being? No legislation definition of death. So when is a person not a human being? Example: Auckland Area Health Board v AG Old test of heart/lung death, now perhaps brain stem death Permanent loss of function of the brain stem = death Courts left open the possibility that certain damage to the higher brain might also constitute legal death Is the accused a human being? ê A corporation cannot be guilty of murder. However, a company can be convicted as a secondary party (for manslaughter) ê Example: Murray Wright Ltd [1970] NZLR 476 Has the accused caused death? [causation rules from AR] ê A combination of involuntariness (or impossibility) and absence of fault on the part of a defendant will be sufficient to exculpate. ê The requirement for legal causation: operative and significant causes of death, even if there were other causes or it only accelerated death 4 Tests from Smith, Cato and Kirikiri ê Reasonable foreseeability ê General rule: while there may be other causes od death, an offender s act or omission must contribute to it in a significant way. There are also a number of particular statutory provisions to prove causation (ss ) ê Most important statutory provision: s 162 there is no criminal responsibility for a killing unless death occurs within a year and a day after the cause of death 4

6 IS IT CULPABLE HOMICIDE? - MANSLAUGHTER General rule: for a homicide to be an offence, it must be culpable homicide within s 160(2) Æ In most cases, this will require that a person is killed by an unlawful act or an omission to comply with a legal duty from ss and s 195 or 195A For omissions, there must be a major departure from the standard of care of a reasonable person (negligence) Æ Apart from cases of infanticide, any culpable will be the offence of manslaughter or, if it is committed with the appropriate MR, it will be murder s 160(3) All culpable homicide which is not murder (or infanticide) is manslaughter. If none of the MR requirements from ss 167 or 168 are satisfied, but the AR is satisfied, the defendant will be guilty of manslaughter s 160(2) sets out the five types of culpable homide under the Crimes Act: (a) by an unlawful act (b) by an omission without lawful excuse to perform or observe any legal duty (c) by both combined (d) by causing that person by threats or fear of violence, or by deception, to do an act which causes his death (e) by wilfully frightening a child under 16 or a sick person 9 These are all examples of involuntary manslaughter where D is guilty of culpable homicide, but not of murder, manslaughter under provocation, killing or in furtherance of a suicide pact or of infanticide Killing by an unlawful act ê s 2(1) definition: a breach of any Act, regulation, rule or bylaw Case example: R v Fleeting [1977] (NZHC) o Generally, the unlawful act must be a crime, although recent cases have raised the possibility of a tort comprising the unlawful act Case example: R v Lamb [1967] (UKCA) o Facts: D had shot and killed a friend when he pointed a Russian revolver at him in jest, and pulled the trigger in the mistaken belief that the gun would not fire. Charged with unlawful manslaughter. o Held: D s conduct did not constitute the offence of assault, for he had not intended V to suffer or anticipate the application of force, and on the basis that his act did not involve any other offence, it was held to follow that the killing was not manslaughter by an unlawful act accident à no assault à no unlawful act à not manslaughter o Lamb clearly shows that: for an act to be unlawful because it is an offence, it will be necessary that D acted with whatever MR was required for the act to be an offence, and it must also be done without lawful justification or excuse ê Unlawful and dangerous (the unlawful act must be dangerous?) Case example: R v Church [1965] (UKQB) o Facts: V mocked D's ability to satisfy her sexually and V slapped his face. A fight developed during which the D knocked her unconscious. He tried to wake her for 30 mins to no avail. He believed she was dead and threw her body into a river. Medical evidence revealed that the cause of death was drowning and she therefore had been alive when he threw her into the river. The trial judge made several errors in his direction to the jury and in the event they convicted of manslaughter rather than murder. The appellant appealed on the grounds of misdirection. o Held: The unlawful act must be such that all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm. o Objective standard it doesn t matter D did not foresee, only matters what a reasonable person would have done Case example: DPP v Newbury [1977] (UKHL) o Facts: The defendants, both teenage boys, had thrown a piece of paving stone from a railway bridge onto a train which had been passing beneath them. The object struck and killed the guard who had been sitting in the driver's compartment. The defendants were convicted of manslaughter, and unsuccessfully appealed, on the ground that they had not foreseen that their actions might cause harm to any other person. 5

7 o Held: A defendant was guilty of manslaughter if it was proved that he intentionally did an act which was unlawful and dangerous and that act caused death, and that it was unnecessary that the defendant had known that the act in question was unlawful or dangerous. o Not necessary to prove the accused knew the act was unlawful and dangerous this is an objective standard. ê From the above cases, we can see that: to be guilty, the prosecution must prove (1) D intentionally (voluntarily) did an act (2) The act was unlawful (3) The unlawful act was dangerous (4) The lawful act caused the death of the victim ê From Lamb & Newbury: 4 AR (objevtively dangerous unlawful act) + MR (MR of the unlawful act) = unlawful act manslaughter Case example: R v Myatt [1991] (NZCA) o Facts: D drove a speedboat that collided with another when breaking the relevant bylaws. Charged with s 160(2)(a): killing by an unlawful act (breaking bylaw) o Held: (1) Unlawful act included any act in breach of one of the many provision of Acts, regulations and bylaws which create offences (2) Unlawful act must be one that is likely to do harm to the deceased; it must also be dangerous (3) Safety of the public need not be the primary objective i.e. the unlawful act does not have to be related to public safety but can be related to public safety o The qualification of unlawful is dangerousness so, unlawful = unlawful and dangerous ; hence not all homicide resulting from an unlawful act will be culpable Killing by an unlawful omission ê s 160(2)(b): it is culpable homicide if D kills by an omission without lawful excuse to perform or observe any legal duty ê The effect of this is that if death results from D s failure to fulfil a legal duty, D may be guilty of manslaughter, and indeed of murder if requisite MR was present ê Sections are offences in themselves, but are also capable of supporting a charge of manslaughter where the failure to perform the duty results in death 4 These sections provide for criminal responsibility where harm may have resulted from a mere omission or, in some instances from positive conduct which was accompanied by an omission to comply with a legal duty 4 In practice, most cases of omission which might involve culpable homicide will be within these statutory provisions Duties to provide necessaries and protection from injury Ð Under ss , there may be liability in certain cases where D omits, without lawful excuse to provide another with necessaries or to protect from injury (ss ) or necessary food, clothing o lodging (s 153) ª In each case, there is criminal responsibility if the result is that V s life is endangered or his or her health is permanently injured, and it is culpable homicide if death results. D s omission must thus causally contribute to death Ð D may be criminally responsible if one of the specified results is caused to V by an omission either to supply or provide necessaries or to take reasonable steps to protect the adult or child from injury provided that: ª Under s 151, D has actual care or charge of V, who is a vulnerable adult and who is unable to provide himself or herself with necessaries, OR ª Under s 152, D is a parent, or is a person in place of a parent, who has actual care or charge of a child under the age of 18 years Ð Post-2011: necessaries of life = includes both goods and services necessary to sustain life and those necessary to raise a child or care for a vulnerable adult 6

8 Duties of those doing dangerous acts and those in charge of dangerous things Ð Section 155 and 156 Duty to avoid dangerous omissions Ð Section 157 Combination of unlawful act and omission ê s 160(2)(c): killing by a combination of an unlawful act and omission to comply with a legal duty ê Often used where parents or guardians perform positive acts of abuse/assault and fail to provide example: R v Witika Case example: R v Hamer (2004) (NZCA) o Facts: Argument between Hamer and wife. Wife revealed to him she was married to another person when they got married, and she did that to get a citizenship. She consumed a large quantity of Hamer s methadone (enough to be a fatal dose). Hamer was convicted of manslaughter for failing to provide the wife with the necessaries of life in the form of medical attention. Although Hamer had eventually called an ambulance, he had not done so for 17.5 hours after his wife overdosed even though he knew the serious consequences of the overdose. o Hamer appealed on the grounds that his personal characteristics should have been taken into account when assessing whether the failure to call an ambulance promptly was a major departure from the standard of care expected of a reasonable person to whom the legal duty in question applied. 9 Personal characteristics: Hamer suffered from depression in addition to being a drug addict, had been prescribed other drugs in the form of rivotril and ritalin, and had failed to take Ritalin on the relevant day. It was submitted that the jury should have considered the case from the perspective of Hamer, who was a drug addict suffering from depression and who had forgotten to take his meds. 9 s 151 was coupled with s 150A requirements major departure expected of a reasonable person o Issue: Whether the objective test ( reasonable person ) or subjective test ( personal characteristics ) should be adopted o Held: CA rejected this argument. (1) The test was completely objective: no consideration of D s [personal characteristics unless they make D incapable of appreciating the nature and quality of the consequences of his acts or omissions. (2) Personal characteristics taken into account for purposes of lawful excuse (for jury to decide) Killing by threat or fear, including victims to kill themselves ê s 160(2)(d): culpable homicide includes the killing of a person by threats or fear of violence, or by deception, to do an act which causes his death ê This allows for a finding of both causation and culpability in certain cases where the immediate cause of death is an act of the victim in response to the conduct of D. Case example: R v Tomars [1978] (NZCA) o Facts: When being pursued by D, V stopped his bike, turned lights off and turned around quickly to avoid pursuit crashing into an oncoming car. D charged under 160(2)(a) unlawful act and 160(2)(d) - threats that cause act. o Held: It was held that D would be liable if: (a) D had caused V to fear violence; (b) Such fear was a not insignificant cause of V s driving as he did; (c) Such driving by V was the kind of reaction that could reasonably have been foreseen by a reasonable person in D s position, given D s conduct immediately beforehand; and (d) Such driving by V contributed in a not insignificant way to his death Killing by frightening ê s 160(2)(e): it is culpable homicide if D causes death by wilfully frightening a child under 16 or a sick person ê No case law on this in NZ. Accused must know the deceased was either under 16 or sick. Non-culpable homicide ê General rule: non-culpable homicide is not an offence this covers accidental death, justified killing in self-defence, justified force in the apprehension of offenders ss

9 IS IT CULPABLE HOMICIDE? - MURDER Are the MR requirements for murder satisfied? Æ Two types of murder: (1) s 167 intentional or reckless murder; (2) s 168 felony murder (hardly used in NZ) MR of s 167 murder: Æ Intention or recklessness Æ Example: Nedrick foresight of virtual certainty for intention; Harney subjective test for recklessness Intentional killing as MR for murder ê Section 167(a) provides that culpable homicide is murder if the offender means to cause the death of the person killed 4 This requires an actual intent to kill 4 Means = in its ordinary sense would appear to require that the killing be a purpose and object of the offender, although perhaps it would suffice that he or she knows it to be an inseparable consequence of his or her object ê This can be intention as a natural meaning, or also as a natural consequence of your actions (oblique intention) Reckless killing as MR for murder ê Section 167(b) provides that culpable homicide is murder 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 4 Subjective Transferred MR as MR for murder ê Section 167(c) provides that culpable homicide is murder if D acts with one of the states of mind specified in (a) and (b) and by accident or mistake kills another person, though he does not mean to hurt the person killed Killing in furthering an unlawful object constructive murder ê Section 167(d) will be most clearly appropriate when D s unlawful object does not include any form of personal injury, but the courts have not confined it to such cases 4 Also will apply if D, with the requisite of knowledge, causes death by an assault, and does this act with the unlawful object of effecting some further hurt or injury ê For (d) to apply, there must have been a fatal act and an unlawful object Relationship between s 167(b) and (d): Æ s 167(b) requires the defendant to intend to cause bodily injury Æ s 167(d) does not requires this; it only requires that the defendant intend to commit a different offence and cause bodily injury, and death, in the process Æ There is an overlap between the two paragraphs for both (to succeed) the defendant must know that death is likely to ensue (is real and substantial risk, something that could well happen). 8