New Zealand Criminal Law

• Criminal law addresses actions considered harmful by the state, with penalties like imprisonment or fines, impacting employment and travel
• New Zealand criminal law is entirely statutory, including the Crimes Act 1961
• Section 9 of the Crimes Act 1961 prohibits convictions based on common law

Common Law Defences

• Section 20 Crimes Act 1961: Common law defences apply unless explicitly modified by statute

Important Terminology

• Prosecution: government lawyers initiating criminal cases, represented as "R" (Regina/Queen or Rex/King)
• Accused/Defendant: the individual prosecuted
• Victim/Complainant: the individual harmed
• Trier of Fact: determines factual issues (jury or judge)
• Trier of Law: determines legal issues (always the judge)

Burden of Proof

• Criminal cases: prosecution must prove guilt beyond reasonable doubt
• Known as "persuasive burden", reinforced by presumption of innocence (Section 25, NZBORA)

Actus Reus(AR) and Mens Rea (MR)

• Actus Reus is the objective, physical element like a positive act, omission, or state of affairs
• Mens Rea is the subjective, mental element, such as intention, knowledge, or recklessness
• The terms Actus Reus, and Mens Rea, are analytical rather than explicitly stated

Preliminary Points on AR and MR

• Temporality: Actus Reus and Mens Rea, must coincide
• Actus Reus: includes all elements of the crime, except the defendant's mental state
• Mens Rea: subjective mental state but inferred from facts if no direct evidence
• Mens Rea: may involve knowledge or recklessness rather than positive intention

Contemporaneity of AR and MR

• Criminal liability needs the Mens Rea present when Actus Reus is complete
• A problem arises if the Actus Reus and Mens Rea, are separated in time

Actus Reus

• Cases covered include Fagan, Miller, Larsonneur, Kilbride, Tifaga

Fagan v Metropolitan Police Commissioner

• Fagan accidentally drove onto an officer's foot, then refused to move the car

Omissions

• Most crimes require a positive act
• The criminal law is hesitant to punish omissions
• Limited circumstances determine liability from omission

Express Liability

• Statute explicitly makes omission an offense, like Section 22 of the Traffic Act (driver's duties in accident)

Implied Liability

• Statutory language implies omissions in offense, like Section 189 (injuring with intent), with failure to act implying action, when failing a legal duty

R v Miller

• Miller was squatting and accidentally set fire to a mattress, and didn't attempt to put the fire out, causing more damage to the house
• Omitting to stop the fire was treated as positive

NZ Application of Miller

• Section 267 – Arson, "damages by fire" similar working to UK's Criminal Damage Act 1971
• A duty in a dangerous situation could impose liability under New Zealand law

Section 9

• Section 9 of the Crimes Act abolished common law offences, but not common law duties

Fagan vs. Miller

• Fagan began as an ongoing act, while in Miller, a failure to act began a dangerous situation

Status Offences

• Prosecution doesn't have to prove any action, but does arise with D being (found)
• Liability results from the defendant in a state/situation

Kilbride v Lake

• Kilbride's warrant of fitness (WOF) accidentally removed
• If not responsible for act = no criminal action

Section 20

• Section 20 of the Crimes Act has 1961 acts justifiable, or excusable

Justification

• Defended as; not guilty of an offence and not liable to any civil process

Excuse

• Person acting with mental incapability that exonerates their crimes

Necessity and impossibility

• Based on limited parliament punishments, where D has had to pick a lesser of two evils, or had to preform the impossible
• Tifaga case used to address this

Mens Rea

• Can be express (explicitly stated), implied or presumed by the courts

Establishing Mens Rea

1. Identify form (intent, knowledge, recklessness, dishonesty)
2. Determine form Requirements
3. Address if D requirements were met at time of the incident

Objective nature of Mens Rea

• Generally needs to be subjectively what individual intended, or what they knew
• While looking at objective elements, inference based on past behaviour

Types of Intention

• Direct: intends the result
• Oblique: might not act directly with result, but can already foresee it

Oblique Intentions

Courts are often ready to allow intentions to be proven (1 virtual certainty of D's actions - 2 actions appreciated to be real too)

Summary of knowledge

R v Crooks:

Held; knowledge must be inferred or obvious in circumstance that person "figued" out the goods were stolen

Summary of recklessness

• A high number of crimes use this in NZ, mentioned in language / statute
• Degree of risk lower for recklessness

Subjective Recklessness

• Requires that defendant has taken over the risks
• Risk must be unjustified or unreasonable
• Often called "cunningham"

Objective components

Back ground: objective versus subjective recklessness:

• Uk adopted reckless for the first while where it was obvious and resonable to the person, however has since ended this as not ethical

- NZ approach:

• Initial follow, since removed where D is in fact conscious of risk