Criminal Law Notes
Lecture 1 – Introduction
Ø Every crime will be categorized into actus reus or mens reus
Ø Actus reus are all physical aspects of the crime
Ø Mens reus is the state of mind the accused has to be in to be convicted when they
commit the crime
Ø We will cover particular offences – such as homicide (murder/manslaughter), assault
(physical and sexual) and property offences
Lecture 2 – Criminal Justice Process
Ø Dark figure crime – the amount of crime not reported to the police
Ø Remand are those who were denied bail – not all people in remand result in a
sentence – remand will count towards the time you serve
Ø Criminal Justice Process
§ Allegation
§ Investigation – see if the police have enough evidence to arrest
§ Arrest
§ Charge
§ Pretrial – what evidences can be let in
§ Trial – conviction or acquittal
§ Sentencing
§ Appeal
Lecture 3 – Actus reus and Mens Rea
Ø S9 Crimes Act 1961 – you can only be convicted of a crime in NZ that is stated in a
statute – so there are no common law crimes
Ø Main crimes are in the Crimes Act but there are many statutes with different crimes
Ø Common law presumption that crimes have an element of mens rea in them
Ø S48 of the Crimes Act – says that unless you face an imminent attack you cannot use
the defense of self-defense
Ø We analyse crimes in two elements – actus rea and mens rea
- Actus reus – the guilty act – refers to the physical or external elements of the
offence – some kind of action
- Mens rea – guilty mind – refers to the mental element
- Concurrence – the actus reus and mens rea must occur at the same point in time
Ø Actus reus must always be committed voluntarily – otherwise you can use the
defense of automatism
Ø Establishing culpability:
§ Identify the relevant offence
§ What is the actus reus elements – are they satisfied
§ What are the mens rea elements – are they satisfied
§ Did actus reus and mens rea occur at the same time
§ Were there any formal defenses available
Ø Things included in actus reus:
§ An act
, § A failure to act when you have a duty
§ A state of being or status e.g. Drunk
§ Circumstances under which the act/omission/status occur – circumstance can
also include the state of mind of victim
§ Consequences
§ A link between act/omission and consequence
Ø Attempts – when you attempt to commit an actus reus but fail – you may be guilty of
attempt
Ø Mens rea can mirror, go beyond or fail to extend to actus reus – for example actus
reus is assault
§ Mirror – Mens rea is doing it on purpose knowing the other person does not
consent
§ Go beyond – with the intent to injure
§ Fail to extend – strict or absolute liability – no guilty mind is required
Ø Types of mens rea – these a very technical states of mind
- Intention – purpose/desire or knowledge that something is a virtual certainty
- Knowledge – believe that something is the case
- Recklessness – knowledge that something is a probable outcome
- Negligence – a reasonable person would know or be aware of the risk
- Strict liability
- Absolute liability
Ø Subjective state of mind means the accused must have had those thoughts – what
was going on in their head – Crown had to prove this
Ø Objective state of mind means we judge them through a standard external to
themselves – such as a reasonable person
Lecture 4 – Identifying the Actus reus and Men rea and Automatism
Ø The act itself does not constitute guilt unless done with a guilty mind – you have to
have actus reus and mens rea at the same time
Ø When you committed the actus reus such as taking the umbrella accidentally – but
did not have mens rea until after the act where you decided to keep
Ø Formal defense – self-defense, automatism, duress, necessity, insanity – available
even if you have committed the actus reus with the mens rea
Ø NZ does not have partial defenses – these attach to the defensive matter so it can
change the conviction – such as changing from murder to manslaughter which can
extremely change jail time
Ø Criminal defense – something you can raise to argue you are not guilty of an offence
Ø S160 – murder – we are focusing on intentional murder
(1) Homicide may be either culpable or not culpable
(2)
(a)by an unlawful act; or
(b)by an omission without lawful excuse to perform or observe any legal duty; or
(c)by both combined; or
(d)by causing that person by threats or fear of violence, or by deception, to do an
act which causes his or her death; or
(e)by willfully frightening a child under the age of 16 years or a sick person.
,Ø Actus reus – death of a person – has to be a person – causation such as unlawful act
or omission (duty and breach) – defendant has to be a human being as well – you
need to establish all elements in order to prove actus reus
Ø There may be cases where you terrorize someone into killing themselves
Ø S167
(a) if the offender means to cause the death of the person killed:
(b) 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:
(c) 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 or she does not mean to hurt the person killed:
(d) if the offender for any unlawful object does an act that he or she knows to be
likely to cause death, and thereby kills any person, though he or she may have
desired that his or her object should be affected without hurting anyone.
Ø Mens rea
- Intends death
- Intends actual bodily harm plus recklessness as to death (accused consciously
knew that someone might die, and they went ahead anyway)
- (c) is transferred malice – mens rea in relation to one victim and you get the
wrong victim
- Intend unlawful act plus they are reckless as to death
Ø Manslaughter is an example of negligence – the accused did not have any subjective
intent
Ø Non-culpable homicide – meaning someone was killed but no one is criminally
responsible
Ø S128
Sexual violation is the act of a person who—
(a) rapes another person; or
(b) has unlawful sexual connection with another person.
(2) Person A rapes person B if person A has sexual connection with person B,
effected by the penetration of person B’s genitalia by person A’s penis, —
(a) without person B’s consent to the connection; and
(b) without believing on reasonable grounds that person B consents to the
connection.
(3) Person A has unlawful sexual connection with person B if person A has sexual
connection with person B—
(a) without person B’s consent to the connection; and
(b) without believing on reasonable grounds that person B consents to the
connection.
Ø Actus reus
- Rape – Penetration of genitalia by a penis – without consent
- Unlawful sexual connection – penetration of genitalia or anus by a body part or
object held or manipulated by someone else
- Without consent
- Connection between the mouth or tongue and a part of person’s genitalia or
anus
, - The continuation or continuing on without consent
- Do you have the victim’s consent in fact – which is actus reus
Ø S2 – sexual connection means – connection effected by the introduction into the
genitalia or anus of one person, otherwise than for genuine medical purposes, of—
(i) a part of the body of another person; or
(ii) an object held or manipulated by another person; or
(b) connection between the mouth or tongue of one person and a part of another
person’s genitalia or anus; or
(c) the continuation of connection of a kind described in paragraph (a) or paragraph (b)
Ø Mens rea
- Does not have to be sexually motivated
- Did you think you have the victim’s consent?
- Intend the physical act
- They know the victim does not consent
- Or does not have reasonable ground to believe the victim consented
Automatism – the accused is acting involuntarily
Ø Actions not a consequence of accused’s will to act – couldn’t deliberately control
their behaviour and prevent it from occurring
Ø Kilbride v Lake (1962) – mens rea is the intention or knowledge behind or
accompanying the exercise of the will – while automatism is simply spark without
which the actus reus cannot be produced at all
Ø Examples can be – sleepwalking – actions during concussion – having drugs or
alcohol to the point you are a zombie (good luck with that defense) – hypoglycemia
– having a stroke – epileptic fit – uncontrollable reflex action
Ø His conscious mind is not connected to his body – your body is doing actions, but
your mind is not leading those actions
Ø Common law defense preserved by s20 – result complete acquittal – courts have
interpreted it very restrictively
Ø Person is acting but has a loss of conscious awareness of action
Ø A person is awake but can’t control their actions
Ø Impossibility of compliance – where a crime has a state of affairs as the actus reus -
where you couldn’t have done anything differently because of reasons beyond your
control
Lecture 5 – Automatism - continued
Ø R v Burr (1969) – the accused person acted through his body and without the
assistance of his mind, in the sense he was not able to make the necessary decisions
and determine whether or not to do the act
Ø Police v Bannin (1991) – actions must be controlled by the deliberative functions of
the mind – some appreciation of key facts relevant to the crime – some capacity to
make decision with respect to those facts – some capacity to form the mental
elements of the particular mens rea required
Ø Most cases where a person has automatism – then usually the person doesn’t have
mens rea
Lecture 1 – Introduction
Ø Every crime will be categorized into actus reus or mens reus
Ø Actus reus are all physical aspects of the crime
Ø Mens reus is the state of mind the accused has to be in to be convicted when they
commit the crime
Ø We will cover particular offences – such as homicide (murder/manslaughter), assault
(physical and sexual) and property offences
Lecture 2 – Criminal Justice Process
Ø Dark figure crime – the amount of crime not reported to the police
Ø Remand are those who were denied bail – not all people in remand result in a
sentence – remand will count towards the time you serve
Ø Criminal Justice Process
§ Allegation
§ Investigation – see if the police have enough evidence to arrest
§ Arrest
§ Charge
§ Pretrial – what evidences can be let in
§ Trial – conviction or acquittal
§ Sentencing
§ Appeal
Lecture 3 – Actus reus and Mens Rea
Ø S9 Crimes Act 1961 – you can only be convicted of a crime in NZ that is stated in a
statute – so there are no common law crimes
Ø Main crimes are in the Crimes Act but there are many statutes with different crimes
Ø Common law presumption that crimes have an element of mens rea in them
Ø S48 of the Crimes Act – says that unless you face an imminent attack you cannot use
the defense of self-defense
Ø We analyse crimes in two elements – actus rea and mens rea
- Actus reus – the guilty act – refers to the physical or external elements of the
offence – some kind of action
- Mens rea – guilty mind – refers to the mental element
- Concurrence – the actus reus and mens rea must occur at the same point in time
Ø Actus reus must always be committed voluntarily – otherwise you can use the
defense of automatism
Ø Establishing culpability:
§ Identify the relevant offence
§ What is the actus reus elements – are they satisfied
§ What are the mens rea elements – are they satisfied
§ Did actus reus and mens rea occur at the same time
§ Were there any formal defenses available
Ø Things included in actus reus:
§ An act
, § A failure to act when you have a duty
§ A state of being or status e.g. Drunk
§ Circumstances under which the act/omission/status occur – circumstance can
also include the state of mind of victim
§ Consequences
§ A link between act/omission and consequence
Ø Attempts – when you attempt to commit an actus reus but fail – you may be guilty of
attempt
Ø Mens rea can mirror, go beyond or fail to extend to actus reus – for example actus
reus is assault
§ Mirror – Mens rea is doing it on purpose knowing the other person does not
consent
§ Go beyond – with the intent to injure
§ Fail to extend – strict or absolute liability – no guilty mind is required
Ø Types of mens rea – these a very technical states of mind
- Intention – purpose/desire or knowledge that something is a virtual certainty
- Knowledge – believe that something is the case
- Recklessness – knowledge that something is a probable outcome
- Negligence – a reasonable person would know or be aware of the risk
- Strict liability
- Absolute liability
Ø Subjective state of mind means the accused must have had those thoughts – what
was going on in their head – Crown had to prove this
Ø Objective state of mind means we judge them through a standard external to
themselves – such as a reasonable person
Lecture 4 – Identifying the Actus reus and Men rea and Automatism
Ø The act itself does not constitute guilt unless done with a guilty mind – you have to
have actus reus and mens rea at the same time
Ø When you committed the actus reus such as taking the umbrella accidentally – but
did not have mens rea until after the act where you decided to keep
Ø Formal defense – self-defense, automatism, duress, necessity, insanity – available
even if you have committed the actus reus with the mens rea
Ø NZ does not have partial defenses – these attach to the defensive matter so it can
change the conviction – such as changing from murder to manslaughter which can
extremely change jail time
Ø Criminal defense – something you can raise to argue you are not guilty of an offence
Ø S160 – murder – we are focusing on intentional murder
(1) Homicide may be either culpable or not culpable
(2)
(a)by an unlawful act; or
(b)by an omission without lawful excuse to perform or observe any legal duty; or
(c)by both combined; or
(d)by causing that person by threats or fear of violence, or by deception, to do an
act which causes his or her death; or
(e)by willfully frightening a child under the age of 16 years or a sick person.
,Ø Actus reus – death of a person – has to be a person – causation such as unlawful act
or omission (duty and breach) – defendant has to be a human being as well – you
need to establish all elements in order to prove actus reus
Ø There may be cases where you terrorize someone into killing themselves
Ø S167
(a) if the offender means to cause the death of the person killed:
(b) 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:
(c) 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 or she does not mean to hurt the person killed:
(d) if the offender for any unlawful object does an act that he or she knows to be
likely to cause death, and thereby kills any person, though he or she may have
desired that his or her object should be affected without hurting anyone.
Ø Mens rea
- Intends death
- Intends actual bodily harm plus recklessness as to death (accused consciously
knew that someone might die, and they went ahead anyway)
- (c) is transferred malice – mens rea in relation to one victim and you get the
wrong victim
- Intend unlawful act plus they are reckless as to death
Ø Manslaughter is an example of negligence – the accused did not have any subjective
intent
Ø Non-culpable homicide – meaning someone was killed but no one is criminally
responsible
Ø S128
Sexual violation is the act of a person who—
(a) rapes another person; or
(b) has unlawful sexual connection with another person.
(2) Person A rapes person B if person A has sexual connection with person B,
effected by the penetration of person B’s genitalia by person A’s penis, —
(a) without person B’s consent to the connection; and
(b) without believing on reasonable grounds that person B consents to the
connection.
(3) Person A has unlawful sexual connection with person B if person A has sexual
connection with person B—
(a) without person B’s consent to the connection; and
(b) without believing on reasonable grounds that person B consents to the
connection.
Ø Actus reus
- Rape – Penetration of genitalia by a penis – without consent
- Unlawful sexual connection – penetration of genitalia or anus by a body part or
object held or manipulated by someone else
- Without consent
- Connection between the mouth or tongue and a part of person’s genitalia or
anus
, - The continuation or continuing on without consent
- Do you have the victim’s consent in fact – which is actus reus
Ø S2 – sexual connection means – connection effected by the introduction into the
genitalia or anus of one person, otherwise than for genuine medical purposes, of—
(i) a part of the body of another person; or
(ii) an object held or manipulated by another person; or
(b) connection between the mouth or tongue of one person and a part of another
person’s genitalia or anus; or
(c) the continuation of connection of a kind described in paragraph (a) or paragraph (b)
Ø Mens rea
- Does not have to be sexually motivated
- Did you think you have the victim’s consent?
- Intend the physical act
- They know the victim does not consent
- Or does not have reasonable ground to believe the victim consented
Automatism – the accused is acting involuntarily
Ø Actions not a consequence of accused’s will to act – couldn’t deliberately control
their behaviour and prevent it from occurring
Ø Kilbride v Lake (1962) – mens rea is the intention or knowledge behind or
accompanying the exercise of the will – while automatism is simply spark without
which the actus reus cannot be produced at all
Ø Examples can be – sleepwalking – actions during concussion – having drugs or
alcohol to the point you are a zombie (good luck with that defense) – hypoglycemia
– having a stroke – epileptic fit – uncontrollable reflex action
Ø His conscious mind is not connected to his body – your body is doing actions, but
your mind is not leading those actions
Ø Common law defense preserved by s20 – result complete acquittal – courts have
interpreted it very restrictively
Ø Person is acting but has a loss of conscious awareness of action
Ø A person is awake but can’t control their actions
Ø Impossibility of compliance – where a crime has a state of affairs as the actus reus -
where you couldn’t have done anything differently because of reasons beyond your
control
Lecture 5 – Automatism - continued
Ø R v Burr (1969) – the accused person acted through his body and without the
assistance of his mind, in the sense he was not able to make the necessary decisions
and determine whether or not to do the act
Ø Police v Bannin (1991) – actions must be controlled by the deliberative functions of
the mind – some appreciation of key facts relevant to the crime – some capacity to
make decision with respect to those facts – some capacity to form the mental
elements of the particular mens rea required
Ø Most cases where a person has automatism – then usually the person doesn’t have
mens rea
