ELEMENTS OF OFFENCES

SOURCES OF NEW ZEALAND CRIMINAL LAW

1. Common law
2. Statute ( Crimes Act 1961 )
 Most important statute on criminal law in New Zealand.
 Creates the most serious offences, deals with question of jurisdiction, defines criminal liability for
attempt, conspiracy and participation of offences.
 Crimes Act does have a codifying effect.
 Section 9 - no one shall be convicted of any offence at common law or of any offence created by the
UK Legislature.
o The court has no residual authority to proceed on common law offences or to invent new
offences.
 Section 20 - provides that all common law justifications and excuses (defences) shall remain in force
in NZ as long as it has not been altered or inconsistent with Crimes Act 1961.
 This act abolish death penalty, removes infanticide from the categories of murder and manslaughter
making it a separate offence carrying a lesser penalty.
 Abolished the offence of attempted suicide
 Code - one stop shop where everything in there.
 Many other statutes control particular spheres of activity and create offences.
Example : Misuse of Drugs Act 1975, Arms Act 1983, Land Transport Act 1998.

ELEMENTS OF CRIMINAL LIABILITY

Actus non facit reum nisi mens sit rea

An act does not make a person guilty unless the mind is guilty

1. Physical element ( actus reus )

o Commission of a prohibited act
o An omission
o Causation of a prohibited act or state of affairs

2. Mental element ( mens rea )

o Intention, knowledge, recklessness in relation to physical element.
The two element must be contemporaneous.

 Also encounter offences that do not expressly require any form of mens rea. Mens rea may be necessarily
implied by the statutory language such as permits, or threatening.
 Offences of implied mens rea are to be distinguished from those of presumed mens rea.

ACTUS REUS

 Suggest the need for some positive act done by defendant.

 Also, criminal law punishes omissions or failure to act (prohibited immigrant, being in possession of a
controlled drug, not paying tax)
 Murder requires proof that the accused's conduct caused the victim's death.
 Actus reus also included mental element or state of mind of person other than defendant.
o Ex : charges of sexual violation, must be proved that the victim did not consent to the relevant act.
 Situational offences such as get caught in neighbour property

MENS REA

 Refers to the state of mind of defendant.

 Also has its own limitation
o Mens rea refers to subjective states of mind such as intention, recklessness and knowledge or special
states of mind expressed by terms like "dishonesty".
o Subjective because they require proof that the defendant actually intended to produce the prohibited
event or result, or realised there was a risk of doing.
 Other fault requirement that are not easily accomodated within the usual meaning of mens rea
o Example : negligence - an objective concept.
  Objective means that liability depends on what the hypothetical reasonable person would have
foreseen and not on what the individual defendant was aware of.
 Therefore standard of liability is external.

Some offences are an exception to general requirement that criminal liability requires proof of both an
actus reus and mens rea (must occur at the same time):

Public welfare regulatory offences

1. Offences of strict liability where the prosecution is not required to prove mens rea but the defendant can
escape liability by proving the defence of absence of fault.
2. Offences of absolute liability where the prosecution is not required to prove mens rea and the defence of
absence of fault is not available.

ACTUS REUS
ACTS, OMISSIONS AND CONTEMPORANEITY

1. Fagan v Metropolitan Police Commissioner [1969]

Assaulting police constable in the execution of his duty.

 Fagan was sat in his car when he was approached by a police officer who told him to move the vehicle.
 Fagan did so, reversed his car and rolled it on to the foot of the police officer.
 The officer forcefully told him to move the car off his foot at which point Fagan swore at him and refused
to move vehicle and turned the engine off.

Issue:
Whether the mounting of the wheel on to the officer’s foot was deliberate or accidental.
Respondent argument:
- Satisfied beyond reasonable doubt that the appellant “knowingly, provocatively and unnecessarily
allowed the wheel to remain on the foot after the officer said “Get off, you are on my foot”
- Argued that the first mounting of the foot was an actus reus which act continued until the moment of
time at which the wheel was removed.
- During the continuing act, the appellant formed the necessary intention to constitute the element of mens
rea and once that element was added to the continuing act, an assault took place.

Appellant’s argument:
- The initial mounting of the wheel could not be an assault and that the act of the wheel mounting the foot
came to an end without there being any mens rea.
- There was only omission or failure to remove the wheel as soon as he was asked. That failure could not
in law be an assault, nor could the law provide necessary mens rea to convert the original act of mounting
the foot into assault.

Assault
- Any act which intentionally – or possibly recklessly – causes another person to apprehend immediate
and unlawful personal violence.
- Assault is synonymously with the term battery.
- Where an assault involves a battery, it doesn’t matter whether the battery is inflicted directly by the body
of the offender or through the medium of some weapon or instrument controlled by the action of the
offender.
- Both AC and MR must be present at the same time.
- Not necessary that MR should be present at the inception of the AR. It can be superimposed upon an
existing act.
- The subsequent mens rea cannot convert an act which has been completed without mens rea into an
assault.

In this case
- Intentional act must have been performed. A mere omission to act cannot amount to assault.
- Words spoken by the appellant could not alone amount to an assault.
Bridge J
- The appellant did nothing which constitute to an assault.
- The car rested on the foot by its own weight and remained stationary by its own inertia.
- The appellant’s fault was that he omitted to manipulate the controls set it in motion again.
- Conviction quashed.

Notes:
- Criminal law also punishes omissions or failures to act.
o Express liability
 Offence is expressly stated to be one of omission
 Offences under regulatory statutes such as to register a dog, to stop after a motorcycle
accident.
 Expressly imposed legal duty to do so.
o Implied liability
 Statutory provision defines an offence in broad terms.
 Could refer to omissions as well as acts but does not expressly refer to omissions or
any legal duty to act.
 Must resolve two specific issues
 Can the word “cause” reasonably be interpreted to cover omissions as well as
acts
 If so, is there a legal duty to act that makes omission punishable?
 If the answer to each question is yes, the offence creates a liability for
omissions as well as acts.

2. R v Miller [1983]

Whether the actus reus of the offence of arson is present when a defendant accidentally starts a fire and thereafter,
intending to destroy or damage property belonging to another or being reckless as to whether any such property
would be destroyed or damaged, fails to take any steps to extinguish the fire or prevent damage to such property
by that fire?

Held
 The court concluded that as he was responsible for having created the dangerous situation.
 The defendant was under a duty to take action to resolve it once he became aware of the fire.
 It was not necessary that the defendant was subjectively aware of the risk of damage posed by the fire,
provided that this would be obvious to a reasonable person who troubled to turn his mind to the matter.
 The defendant was therefore liable for his omission to take any steps to put out the fire or seek held, and
was accordingly convicted of arson.
 The initial accidental lighting of fire was accidental and therefore not contemporaneous with the requisite
mens rea.

However, in creating that situation, he created a legal duty to mitigate against damage. His conscious omission to
do so at a later date was accompanied by recklessness.

3. Nicholson v Department of Social Welfare [1999]

Case come under Social Security Act 1964. ( current 2018 )

Facts of the case :

 She no longer need social benefit but she accepted the money. Before she accepted the job, she called the
officer that she had received a job.
 The benefit keep coming in even after her employment. She took another cause of action. She wrote
something to the officer. However, despite that the benefit keep coming in.

She was charged under Section 127 of SSA

 It creates express liability for failing or omit something.
o She was charged under the omitting.
 The prosecution argued that she was wilfully omitted, with the purpose of receiving the benefit.
 Defendant failure to act must be contrary to legal duty.
Section 80A
Duty to advise change of circumstances affecting entitlement to benefit.
It creates a duty but it does not create an offence. It does not tell you what you are liable for.

The issue in question :

 Which of the Section applied, Section 80A or Section 127 ?
Section 80A provides the duty while section 127 provide the consequences. Section 80A cannot stand by
itself therefore it had to be read together.

Section 113 Social Security Act 2018 - had created new section that combined both section 80A and section 127.

District Court
 Found her guilty.
 The recipient of a benefit is under a continuing obligation pursuant to section 127 and falling also within
section 80 A, to inform the department of any relevant change in circumstances.
o He identified that the necessary element of the offence is '
 The defendant omitted to tell the Department of Social Welfare that she was working.
 The omission on her part was wilful.
 The omission on her part was for the purpose of misleading the department (letting the
department continue to think that she was not working)
 The purpose in so misleading the department was to achieve continued payment of benefit
that she might not otherwise have been entitled to.

High Court
 Even if you have advised the department in terms of section 80A. There is still another obligation on you.
 Section 127 should be given their ordinary meaning - ongoing obligation.

Court of Appeal - Divided court 2:1

 Majority held that a person's duty to disclose arises under s80A, not s 127. Because Nicholson had already
discharged that duty, she was not liable.
 Did not adopt a "continuing omission" approach.
 If the specific obligation imposed by s80A is discharged, there remains no obligation "to do or say
anything" to which s 127 can attach. If the department fails to act on the advice of changed circumstances
and mistakenly

Minority
 Thought section 127 created a continuing duty to disclose, which supplemented the duty in section 80A.

In criminal law, there are obligation to provide fair warning.

STATUSES AND STATES OF AFFAIR

1. R v Larsonneur (1993)
The case has been used to illustrate the applicability of actus reus to strict liability offences.

Facts of the case :

 The defendant was a French national who had entered the UK lawfully, but was given only limited
permission to remain in the country.
 At the end of that period the defendant left England, not to return to France, but to travel to the Irish Free
State. The Irish authorities made a deportation order against her, and she was forcibly removed from
Ireland and returned to the UK.
 On arrival in England the defendant was charged under the Aliens Order 1920, with “being found” in the
UK whilst not having permission to enter the country.
 The defendant was convicted and appealed on the basis that her return to the UK had not been of her
own free will, in that she had been forcibly taken to England by the immigration authorities.
The Court of Appeal dismissed her appeal on the simple basis that the prosecution had proved the facts necessary
for a conviction. She had violated the condition on her passport regardless.
CAUSATION

1. Kilbride v Lake [1962] NZLR 590

Aspect of actus reus – Need to ascertain whether the prohibited result or event was in fact caused by D.
No MR needed. It is essential to put strong pressure on drivers of motor vehicles to do their whole duty.

Charge: failing to display a current WOF.

 Kilbride was charged under the Traffic Regulations Act for operating a motor vehicle without a current
“warrant of fitness” (registration) displayed.
 He did in fact have one, and it was displayed, however it was somehow removed when he left the car –
which was also the time that the officer gave him the ticket for the offence.
 He subsequently proved that the car was registered and that the warrant had been displayed when he left
the car. However, the offence simply states that you must display the warrant at all times, and when the
officer gave the ticket the warrant was not displayed. He was convicted at trial, which he appealed.

Issue:
Can something done perfectly innocently by a defendant become an offence by reason of an intervening cause
beyond his control, and which produced an effect outside of his knowledge?

TWO ELEMENT TO THE ACTUS REUS

1. Operating (permitting) vehicle to be on any road ; &
2. Omitting/failing to carry on the vehicle a current WOF

Woodhouse J: The actus reus was the presence of the car combined with the absence of the warrant.
Kilbride was only responsible for the first one, not the second one.

Held: Appeal allowed, conviction quashed.

 Woodhouse holds that this is not a mens rea issue. He quotes Halsbury's, which states, "a person cannot
be convicted of any crime unless he has committed an act prohibited by law, or failed to live up to a legal
duty. The act or omission must be voluntary".
 Therefore, the defendant must be shown to be responsible for the physical ingredient of the crime to be
convicted. Until this is proven, the question of mens rea is irrelevant.
 The actus reus must be committed voluntarily, and it is not the line of conduct that produces the
prohibited event, but the event itself.
 Here, the prohibited event is permitting a vehicle to be on the road accompanied by an omission to display
a warrant. Both must occur simultaneously; however, in this case only the first aspect was present.
 It was the extraneous cause that resulted in the conditions for conviction becoming present, and the
defendant did not voluntarily bring this about.
 Therefore, as the actus reus is not proven, the mens rea issue does not matter.

The resulting omission to carry the warrant was not during his conduct, knowledge or control. On these facts, the
chain of causation was broken.

 Disregarding any mental elements of an offence, a person cannot be criminally responsible for an act or
omission unless it was done or omitted in circumstances where there was some other course open to him.
 If the actus reus of the offence is committed involuntarily, then the defendant cannot be convicted.

JUSTIFIABLE OR EXCUSABLE ACTS OR OMISSIONS

In some situation, prohibited acts or omissions are regarded as justifiable or excusable under the Crimes Act. For
example:
o self-defence
o duress and necessity – when a person commits an otherwise criminal act under threat or fear of death or
serious harm.
o Impossibility to compliance – D is unable to perform a duty imposed by law.
1. Tifaga v Department of Labour [1980] 2 NZLR 235

 Tifaga was charged with overstaying under section 14(6) of the Immigration Act.
 Section 14(6) of Immigration Act created an offence of strict liability.
o Tifaga's temporary immigration permit was extended from time to time. It was revoked when he was
found guilty of crime. When he was released, he need to leave the country but he did not have money
and eventually became an illegal immigrant.

Tifaga distinguished from Killbride case :

Tifaga did not lack conscious volition. He was aware of the omission. He should have planned for a deportation,
knowing it to be possible. However, he lacked practical choice.

Defence : Impossibility of Compliance, not absence of fault.

o The legislature is not assumed to have intended to punish for failure to perform the impossible. Arises
only when defendant could really not have done anything about it.
o Tifaga was under a continuing responsibility upon him to maintain the means to leave NZ within 3 weeks
as the Minister of Immigration revoke his permit. This legal duty created the criminal omission of failing
to leave.

Woodhouse J :
The fact that he was sent to prison was not an extraneous cause like the loss of the warrant for Richmond P. If
Tifaga was robbed on the way to the airport, or hospitalised or in prison through the term of the notice, this could
excuse liability. Tifaga was not free from fault. (cf Sione v Labour Department)
His appeal was not successful.

Richardson J :
The holder of a temporary permit should always bear in mind the need to comply with an order to leave New
Zealand should his permit be revoked. He should provide against that possibility by ensuring that he has sufficient
funds available to meet the outward fare. Apparently this appellant chose not to maintain a reserve for that purpose
and there is no evidence suggesting that it was impossible for him to do so.

MENS REA
 Refers to any mental element. An offence which Prosecution must prove in addition to the actus reus.
 Tested subjectively.
o Subjective view requires us to ascertain what the individual defendant actually intended, knew or
foresaw at the time the actus reus was committed.
o Ex: inability to see a risk that you or I would be aware of.
o Should draw distinction between the substantive requirement and the evidentiary requirement.
 In the absence of an admission or confession, we have no direct access to defendant's mind.
So her actual state of mind must be subjectively judged on what she did or said at the time of
the alleged offence or later.
 In making this judgement, we are entitled to draw reasonable inferences from the evidence.

3 Main Forms of Mens Rea :

1. Intention
2. Knowledge
3. Recklessness

Intention or recklessness - required as to specified results

Knowledge or recklessness - required as to specified circumstances.

These forms of mens rea may be

(i) expressly required
(ii) necessarily implied by the statutory language
(iii) presumed as a matter or principle
INTENTION

Several offences require proof that defendant acted "with intent to" bring about a particular result.
Could be conveyed through various expression such as intentionally, intent, purpose, wilfully, threatening.
Intention was not defined in statute.

Direct meaning :
 Defendant acts with the intention of bringing about a result.

Indirect or oblique intention

 A person intends a result, even though causing that result is not his/her direct purpose or aim, if that person
foresees the result as practically certain or inevitable (or even highly likely) to occur as a result or his/her
voluntary act.

Two form of murder ;

(i) intention to kill
(ii) intention to cause grievous bodily harm (serious harm)

ENGLISH CASES

1. R v Moloney
 Had a celebration of family event and had consumed a quantity of alcohol.
 The step-father was not happy when the defendant told him that he wanted to leave the army.
 They got into an argument as to which of them could load, draw and shoot a gun faster.
 The defendant was first to load and draw his gun and the step-father challenging him by saying that
defendant wouldn’t have the gut to pull the trigger.
 Unfortunately, the defendant rose to challenge and pull the trigger.
 He later argued that in his drunken state he did not believe the gun was aimed at the step-father.

House of Lord quashed the conviction for murder and susbstituted with manslaughter on the reason that the case
was not of oblique intent.

Lord Bridge made two general observation :

 The golden rule ; when directing a jury on the mental element necessary in a crime of specific intent, the
judge should avoid any elaboration or paraphrase of what is meant by intent and leave it to the jury's good
sense to decide.
 Intention is not the same as motive or desire.

Jury should be invited to consider two questions :

1. Was the relevant consequence a natural consequence of the defendant's voluntary act ?
2. Did D foresee that consequence as being a natural consequence of his act ?

2. R v Hancock & Shankland (a year after Moloney )

- two coal miners who were on a strike pushed concrete blocks from an over bridge on to the road below.
- The concrete struck a taxi transporting a strike breaking miner to work, killing the taxi driver.
- H and S said they intended to push the concrete on the middle land of the road, not the inside lane in
which the taxi was travelling.
- They claimed they only ever intended to frighten the strike breaking miner and prevent him going to
work, but not to injure anyone.

Court of Appeal
Conviction for murder quashed and substituted to manslaughter.

Lord Scarman
 Moloney not only settled that the mens rea for murder is a specific intention to kill or inflict serious
bodily harm, but also clarified the point that foresight of consequences is no more than evidence of the
existence of intention.
 After Lord Bridge formulated the model guidelines that the judgment lacked clarity. Concluded that that
the Moloney guidelines were defective. That the guidelines needed a reference to "probable" or else the
jury might concentrate solely on the causal link between the act and its consequence.
3. R v Nedrick
Nedrick set light to the house of a woman against whom he bore a grudge. One of the woman’s children died as
a result of the fire and Nedrick was charged with murder.

Lord Lane CJ sought to explain the concept of " foresight consequences "

Court of Appeal
 Substitued it to manslaughter.
 Lord Lane CJ: Explains the concept of “foresight consequences”
o If the jury is satisfied that the defendant recognised that death or grievous bodily harm would be
virtually certain ( barring some unforseen intervention ) to result from his or her voluntary act, then
that is a fact from which it might find it easy to infer that the defendant intended to kill or do grievous
bodily harm.
 Test of virtual certainty has been approved in subsequent cases such as R v Woolin

4. R v Woollin [1998]
 The appellant threw his 3 months old baby son on to a hard surface. The baby suffered a fractured skull
and died.
 The trial judge directed the jury that if they were satisfied the defendant "must have realised and
appreciated when he threw that child that there was a substantial risk that he would cause serious
injury to it, then it would be open to you to find that he intended to cause injury to the child and you
should convict him of murder."
 The jury convicted of murder and also rejected the defence of provocation.

The defendant appealed on the grounds that in referring to 'substantial risk' the judge had widened the definition
of murder and should have referred to virtual certainty in accordance with Nedrick guidance.

The Court of Appeal

rejected the appeal holding that there was no absolute obligation to refer to virtual certainty.

House of Lords
Murder conviction was substituted with manslaughter conviction. There was a material misdirection which
expanded the mens rea of murder and therefore the murder conviction was unsafe. The House of Lords
substantially agreed with the Nedrick guidelines with a minor modification. The appropriate direction is:

"Where the charge is murder and in the rare cases where the simple direction is not enough, the jury should be
directed that they are not entitled to infer the necessary intention, unless they feel sure that death or serious
bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant's actions
and that the defendant appreciated that such was the case. The decision is one for the jury to be reached upon a
consideration of all the evidence."

5. R v Matthews and Alleyne [2003]

 The defendants threw the victim into a deep river after robbing him.
 They were fully aware that the victim could not swim.
 The trial judge guided the jury as follows: If drowning was a virtual certainty and the appellants
appreciated that then they must have had the intention of killing him.

The defendants appealed on the basis of a misdirection arguing that the guidelines had been contravened as
foresight of virtual certainty had been equated with intention.
The appeal was dismissed.

 The fact that jury MAY find intent, gives them an important get out clause. The courts are keen to give
some structured guidance and nothing short of foresight of virtual certainty will suffice.
 However, the courts are at the same time keen to allow some ‘moral elbow room.’
 The current guidelines are very flexible in that juries are not forced to convict but do have the freedom to
do so if appropriate.
  If there were a strict definition, that required the defendant to ‘want’ the desired outcome then many
defendants would escape liability.
 Equally, the flexible guidelines give the jury freedom to acquit where appropriate. For example, the close
loving relationship in Moloney might be enough to persuade a jury not to convict.

However,
 it could be argued that the guidelines create inconsistency and confusion.
 For example, one jury could find Hyam guilty of murder while another could conclude manslaughter.
 Clarkson and Keating point out that this situation is ‘undesirable.’ It invites ‘prejudice, discrimination and
abuse.’
 If we were to adopt a statutory definition or adopt the Woollin guidelines as a firm definition, this problem
would be remedied.
 Another problem, centers on the interpretation of Woollin. Lord Steyn was careful to limit the guideline
murder.
 Therefore, it is unclear whether intention has the same meaning throughout the criminal law.
 Although the conviction was safe, the judge erred in finding that R v Woollin [1999] laid down a rule of
law
 The Woollin criteria is a rule of evidence: a jury direction which entitles a jury to find intent if the resulting
death was virtually certain; it does not require a jury to find intent from virtual certainty

NEW ZEALAND CASES

1. R v Piri [1987] 1 NZLR

 Two men abducted woman, tied her to tree for hours on end, where she eventually died.
 The defendant want to extract information about a sum of money owed to him.
 Said there was no intention to cause bodily injury.
Cooke P - English cases have no bearing on s 167(d). Referred to case Maloney and Nedrick - broad enough.

The court held:

 The rationale of (d) is the need to classify as murder culpable killing by conduct whereby the accused
deliberately risks life for his own unlawful ends.
 If the risk of the death of the victim was truly no more than negligible or remote in the offender's eyes,
the stigma of murder should be withheld.
 To be distinguished from that, however, are cases where the risk is so appreciable that to indulge in the
conduct is seen by society as the virtual equivalent of intentional killing.
 Every Judge who tries to formulate a test for the distinction in precise and simple terms, suitable for
directing a jury, soon realizes that no single formula is preferable or adequate.
 Expressions commonly used to indicate the degree of foresight of death required to be proved against the
accused are a real risk, a substantial risk, something that might well happen.

R v Wentworth [1993] 2 NZLR

 Wentworth sold 400 Panadeine tablets to Moroney.
 He said to police he was aware it was possible the tablets were being used for home bake.
 Also suspected his supply to M was going to another for this purpose
 Crown argued Wentworth was a secondary party to the offence of drug manufacturing.
 Defence argued Crown must prove the accused wanted the heroin to be manufactured, and it was not
enough to show that he knew such a manufacture could occur.

Section 66(1)
Does or omits an act for the purpose of aiding a person to commit offence
Does "for the purpose" include intention?
 Judged concluded for the purpose meant intention.
 Equates foresight of likely consequences to direct intention.
 Also partially combines motive with intent, cannot ignore the accused motive (example: contract killer's
motive may only be money, but death of another is the intended cause of action to get that money).
 If an accused's action has multiple consequences, he should not be able to pick and choose between them
when it comes to criminal responsibility.
Police v K [2011] NZCA
Kid not taken to school.

 K convicted of not following a parenting order by not taking one of his kids to school on the Monday
morning.
 Claimed he could not contact 'go-between' party to notify mother.

Court of Appeal
 The breach of the order was a known consequence of his actions (virtually certain), therefore (oblique)
intention was satisfied.
 S 78 doesn’t require there be proof of motive.
 Offence is more of strict liability.
 Crown only needs to prove knowledge of the terms of the parenting order, and an intentional
(deliberate) act to prevent compliance.
 Still open for defendant to prove such conduct occurred with reasonable excuse.
 D had no reasonable excuse in this case.

Held: Motive is not necessary in NZ law.

KNOWLEDGE
Many offences require knowledge
For example: Perjury (Section 108) , Incest (Section 130) , Bigamy (Section 205)

NZ does not accept “constructive knowledge”

- Where D did not actually know but ought to have known of a relevant circumstance.
- The offences which still incorporate this objective test tend to be of a less serious and regulatory nature.

 Knowledge requires actual knowledge in the sense of being certain about something or in the sense of
having no substantial doubt about it.
 In Crooks, mere suspicion is not enough even if accompanied by a failure to inquire as to the existence
of circumstances.
 “Wilful blindness” – state of mind of a person who, while lacking direct knowledge or belief, deliberately
abstains from using an obvious means of confirmation because s/he knows what the answer would be.

1. R v Crooks [1981] 2 NZLR

Charged with receiving stolen goods from flatmate.
 Spirits and $6000 cash.
 Flatmate owed him money and gave it to him.
 “I just turn a blind eye to what he does”
 He figured that it was stolen because no one comes up with that much money.
 He accepted it only because to appease him.

 Knowledge includes D’s belief. Belief is more than mere suspicion.

 A failure to inquire further usually does not elevate suspicion into belief.
 But if circumstances compel a certain conclusion (here, that property was dishonestly obtained), failure
to inquire may be taken into account by the jury along with all the other evidence in deciding whether
knowledge is established.
o Whether the defendant himself, in abstaining from inquiry, can be fairly inferred to have taken
that course because he knew what the answer would be.
o If the state of mind of the defendant was such that he merely entertained a doubt as to whether
or not the property had been honestly obtained, then they must not use against him.

2. R v Martin [2007] NZCA

Arrived at Auckland with more than 3kgs of cocaine in her luggage.

Issue: whether Ms Martin knew the cocaine was in her luggage.

 Crooks decision not to enquire was seen as fatal.

 Wilful blindness was evidential of a subjective belief that goods were stolen. Trial judge had not left
wilful blindness to the jury: made prosecution prove actual knowledge.
  Defendant appealed on the grounds of wilful blindness.
 Crown had to prove a higher standard of knowledge anyway, so was prejudiced, but still won the case.

Dicta: Crown was entitled to a summary of wilful blindness .

Test for wilful blindness:
o It will suffice if the Crown can prove beyond reasonable doubt that the accused had her suspicions
aroused as to what she was carrying, but deliberately refrained from making further inquiries or
confirming her suspicion because she wanted to remain in ignorance.
o If that is proved, the law presumes knowledge on the part of the accused.

Changes test from Crooks: the test is now substantive rather than evidential (inferential).

 Wilful blindness creates a presumption for judges that the defence must displace.
 Not an inference for the jury anymore. Wilful blindness should be formulated simply, so as to not confuse
juries.
 Not recklessness: recklessness requires actual knowledge of a danger or risk and persistence in a course
of conduct which creates a risk that the prohibited result will occur.

RECKLESSNESS

a) Most important form of mens rea.

b) Often expressly specified as mental element. Whether on its own, as an alternative to some other form
of mens rea (usually intentional) or as part of a composite mens rea (usually in tandem with intention.
c) Aside from express references, recklessness is often presumed or read into offences as a sufficient mental
element where the statute is silent as to mens rea.
d) It required taking of an unreasonable risk by someone who was actually aware of the risk.

Lord Diplock – recognising a risk but also failing to give any thought to an “obvious” risk.
Obvious risk was held to be a risk that would have been obvious to an ordinary reasonable person (reckless now
included an objective standard) – Caldwell Recklessness

However, House of Lord revisited this issue in R v G and another and depart from Caldwell. Holding that foresight
of consequences was an essential ingredient of recklessness. Now, the test has returned to subjective approach.

TWO PRELIMINARY POINTS:

i. THE DEGREE OF RISK

Likely or probable –
the risk must be “real” or “substantial” or “something that could well happen”.
A person will not have been reckless when s/he realised that the risk in question was a possibility but
genuinely regarded it as “negligible”, “remote” or “insignificant”.

Generally accepted that the risk must be more than a remote possibility or something that is altogether
negligible.

ii. The essence of recklessness is taking an unreasonable or unjustified risk.

1. R v G and another [2003] – House of Lord

1. Arson
2. Mens rea
3. Whether defendants' acts created obvious risk of damage to property?
4. Whether defendant's age and personal characteristics relevant in assessing obviousness of risk.

 The defendants, two boys aged 11 and 12 respectively went camping and in the early hours of the
morning, entered the back yard of a shop where they found some bundles of newspapers.
 They set a fire to some of the newspapers, threw them under a large plastic dustbin and left the yard
without putting out the burning papers.
  The dustbin caught fire and the fire spread to the shop and adjoining buildings resulting in approximately
$1 million worth of damage.
 Defendant were charged with arson contrary to Section 1 of the Criminal Damage Act 1971.

The defendants' convictions were quashed. The House of Lords overruled MPC v Caldwell [1982] AC 341.

The appropriate test of recklessness for criminal damage is:

"A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect
to - (i) a circumstance when he is aware of a risk that it exists or will exist;
(ii) a result when he is aware of a risk that it will occur;
and it is, in the circumstances known to him, unreasonable to take the risk."

2. R v Harney [1987] 2 NZLR

Charged with murder under s 167(b)
Claimed that trial judge gave the wrong direction (Caldwell direction given).

The appellant admitted intending to stab the man but not kill him. He was intending to stab leg but “he ust have
moved”. Have intention to injure him but not kill him.

 Foresight of dangerous consequences + intention to continue the course of conduct regardless of risk.
Some words of the trial judge should be avoided, but the subjective test stands.
 Recklessness in s 167(b) adds nothing, proven that you knew that your actions would cause harm – no
need to prove recklessness.
 Appeal dismissed.

3. R v Tipple

 Tipple was accused of "dealing with a firearm with reckless disregard for the safety of others" contrary
to s 53(3) of the Arms Act 1983.
 Tipple was on his parents' farm, supervising a shooting party. Only Tipple had a firearms licence.
 Supplied guns and ammunition on. Set up target with a busy road 600m behind, cars were visible behind.
Bullet from a high powered rifle with 3000m range hit a car on the road. Not clear who shot the gun, but
Tipple dealt with it.
 Tipple claimed that the bullet must have been a ricochet off the grass.
 All three expert witnesses agreed arrangements for the target shooting were inadequate, created major
risks for the public.

Either disregard means you haven't thought about something at all, or it means you have taken it into regard but
not cared about it.
Disregard: to ignore, to neglect, to be indifferent to, to regard something but treat it as unimportant.

CA read that this composite expression suggests that it may require more than simply failing to consider the risk.
Said it required a subjective analysis. Paying attention to something, but treating it as unimportant and running
the risk anyway.

Crown - regardless of whether damage was due to direct hit or ricochet, it was reckless to fire the gun at all in the
circumstances.

Issues on appeal
1. That Tipple hadn't actually dealt with the gun
CA: his input was enough, and to narrow 'deal with' would have negative policy outcomes.
Allowed use and supervision of rifle = dealing

2. Misdirection
Trial judge didn't say the risk to safety had to be a 'dangerous' risk, it is not enough to mention a 'risk to
safety'
Not such an important issue, ok that judge left it out.
 Judge had referred to the need to be satisfied objectively that it was not reasonable to run the risk in the
circumstances, but it should be subjective.

 In NZ, at least in the context of discharging firearms, recklessness is a subjective .

 From defendant's point of view, recklessness is subjective - they have to see the risk and run it.
 But before you get to this point, the risk must be unjustified or unreasonable to take in the first place.
 This must always be judged objectively.
 The second limb is subjective.

Court goes through history of recklessness in NZ, notes its subjective particularly in firearms. All objective
decisions predate Harney.

Was Tipple simply unaware of the risk?

This was a question of fact, and the jury must have been satisfied that Tipple did foresee a risk.
If Tipple's precautions had eliminated the risk, Jury would have found that his actions were not unjustified, and
then Jury wouldn't have had to care about Tipple subjectively seeing the risk.

4. R v Hay (1987)

Charge :
a. Charge of breaking and entering a building with intent to commit a crime
b. Charge of wilfully setting fire to that building

Facts of the case :

 The applicant with associate, Clibbon stole a motorcar and decided to cannibalise the car.
 Clibbon friend, Watson had access to the factory with his employer's permission.
 Clibbon siphoned petrol from the car into a 20 litre rubber lubricant container but it had a hole in the
bottom of it and petrol was split over the floor of the factory.
 Then he decided to use grinder to get the driver's seat out.
 He was aware that there would be plenty of sparks when using the grinder so he had it facing the other
way to try and get the sparks to in a way where they would not cause problem.
 Sparks flew and ignited the petrol on the floor along to the petrol cans.
 Tried to get a hose (did not work out), pushed the car out and rang the fire brigade.

CHARGE OF WILFULLY SETTING FIRE TO BUILDING

Issue :
Section 293 Crimes Act :

(1) For the purposes of sections 294 to 305 of this Act, every one who causes any event by an act which he
knew would probably cause it, being reckless whether that event happens or not, shall be deemed to have caused
it wilfully.

The Crown's case

The applicant was reckless in that he did an act using the grinder which he knew would probably cause a fire.

R v Parker
A man is reckless in the sense required when he carries out a deliberate act knowing or closing his mind to the
obvious fact that there is some risk of damage resulting from that act but nevertheless continuing the
performance of that act.

R v Stephenson
A man is reckless when he carries out the deliberate act appreciating that there is a risk that damage to property
may result from his act. It is however not the taking of every risk which could properly be classed as reckless.
The risk must be one which is in all the circumstances unreasonable for him to take.

The fact that the risk of some damage would have been obvious to anyone in his right mind in that position of
defendant is not conclusive proof of the defendant's knowledge.
Court of Appeal Waaka v Police - Cooke P
" ... Mens rea is an ingrediant of criminal liability - guilty intent including in this context indifference or wilful
blindness. "
 Person must turned his mind to the possibility of damage and knowing that the act he was about to
commit was likely to cause damage nevertheless proceeded with it.
 May not intended the damage but proceeded with it and was reckless - deemed to have caused the
damage wilfully.

Applicant : the applicant proceeded with the grinder but directing the sparks the other way. He thought that
would be sufficient to avoid the possibility of the sparks igniting the petrol.

Jefferson v Ministry of Agriculture - Barker J

 Recklessness should not be equated with negligence. A person who adverts to the question of risk and
decides there is none should be free from liability. The fact that a person is mistaken in that belief does
not mean he is reckless.

CHARGE WITH BREAKING AND ENTERING A BUILDING WITH INTENT TO COMMIT A

CRIME

Judge Buckton - Auckland District Court

Dismissed the charge on the grounds that the defendant held an honest belief that his entry into the building and
his use of equipment and property in the building and owned by the employers of Watson was justified and
authorised by their employee Watson.

Campbell v Police HC Wellington - Quilliam J

 Held that a person may be guilty of burglary notwithstanding that he has a lawful right to be in the
building.
 The essence of the offence lies in the intent to commit a crime in the building rather than physical
circumstances concerning the breaking and entering.
Application granted.

5. Cameron v R (2017)

In High Court :
Were found guilty on charges of importing, selling and having possession for sale of the Class C controlled drug
4-MEC.

Facts :
Case focused on London Underground, a business which marketed and distributed drugs known as "legal
highs". Also sold products on the after-market. Under Misuse of Drugs Act 1975, a "controlled drug analogue"
is a Class C controlled drug.

The Appellants appealed to Court of Appeal - which dismissed their appeal.

Supreme Court :
Appealed on the basis
i. Issues of the mens rea element in offences involving controlled drug analogues
ii. The question of whether the substantial similarity issue was one of fact for the jury to determine or one of
law for determination by the trial Judge.
iii. Whether the indeterminacy of the definition of controlled drug analogue warranted or required the High
Court to stay or dismiss the proceedings.
iv. Whether the controlled drug regime encompassed 4 MMC and 4 MEC.

The Mens Rea problem in respect of possession and supply of illicit material :

R v Strawbridge (drug offending)

 Held that once the actus reus was proved, the Crown did not have to prove guilty knowledge as parts of
its prima facie case.
 Instead guilty knowledge would be presumed unless there was evidence that the defendant honestly
believed in reasonable ground that the act was innocent.
  If this happen, the onus of establishing beyond reasonable doubt would be on Crown.

R v Ewart (1905)
 It was only reasonable innocent belief which was seen as excluding mens rea.

R v Wood (1982)
 NZ Court dispensed with the reasonable requirement, seeing the reasonableness of a postulated innocent
belief as having only evidential significance.
 This approach was confirmed in R v Metuariki (1985)

New Zealand court :

Have tended either to equate lack of complete knowledge with innocent belief (Metuariki) or to hold that
complete knowledge is required for criminal liability ( R v Martin and R v Soles )

R v Martin
Held that :
Open to find the defendant guilt if she had
a. Known there was cocaine in her luggage
b. Been wilfully blind to its presence
Court of Appeal accepted that wilful blindness did offer a mechanism by which knowledge could be inferred.

Soles v R
 Case methamphetamine in a suitcase
 Wilful blindness
 Court of Appeal concluded that the Judge had left it to the jury to convict on the basis of recklessness
whereas the offence required proof of knowledge (including wilful blindness)

In neither case does it appear to have been contended by the Crown that recklessness was suffice.

Recklessness :
In Adams
 Recklessness will be sufficient but minimum degree of fault for liability and it is not uncommon for
statutes to expressly provide that recklessness suffice.

In Howe
Carelessness is not limited to deliberate risk-taking but includes failing to give any thought to an obvious and
serious risk.

In cases where mens rea is not defined, recklessness is sufficient to satisfy mens rea requirement.
For this purposes , recklessness is established if
a. The defendant recognised that there was a real possibility that
i. His or her actions would bring about the proscribed result ; and/or
ii. That the proscribed circumstances existed ; and
b. Having a regard to that risk those actions were unreasonable.

Wilful blindness principle - do not equate recklessness with knowledge, rather they provide a method by which
knowledge may be inferred.

6. D’Almeida v Auckland City Council (1984)

 Appeal by Ms D'Almeida against her conviction on charge of reckless use of a motor vehicle.
 After being spoken to by a traffic officer, she took off and drove in a display of bad temper and bad
driving during which she was chased by the officer (in busy streets and speed up to 87km)

R v Storey (1931)
NZ approach to recklessness :
 An appreciation by the defendant of a real risk of injury or damage which he nevertheless went ahead and
took.
 Court of Appeal in this case - the need for that positive mental element.

R v Lawrence by House of Lord (1981)

Recklessness was held to include not only mental element of the kind accepted by Storey, but also the situation
when the accused gave no heed at all to that risk.
Lord Diplock
 Involving lack of thought to the possibility of the risk.

The appallant's driving created an obvious and serious risk of physical injury to other road users but concluded
that she was upset by the pressures of the day, she gave no thought to the manner of her driving.

Held :
Believe "reckless" was chosen in the light of the long-standing authority of Storey in all aspects of our criminal
law, requiring an appreciation of the risk as an added mental element beyond the purely objective standard
involved in dangerous driving.

The appeal is allowed and the conviction for reckless driving set aside.
However, conviction for dangerous driving substituted.

7. R v Jones [1986] 1 NZLR

Was charged for

i. The accused drove the vehicle recklessly.
ii. He drove it in a manner which having regard to all the circumstances of the case was dangerous to the
public.

The deceased, who had been driving a truck, was killed in a collision on the highway at about 7pm. The accused
was driving a truck in the opposite direction, towing a potato digger or harvester.
In the towing position the boom of the digger should have been pointing forward, parallel with the truck.
In the working position, however, it protruded at right angles across the road, and the evidence indicates that in
fact it was in that position when it crushed the windscreen of the truck driven by the deceased.

Appellant:
Last checked the position of the boom in the vicinity of the roundabout and that it was then in the correct towing
position.

Different between reckless driving and dangerous driving ;

Reckless driving
 He knew it was out
 It constituted a danger to other road users
 He was well aware of the risk it constituted as a danger to other road users, but being completely
indifferent to that risk or danger to other road users, he nonetheless continued on.

Dangerous driving
 He knew the boom was out and if you consider everything else proved, it constituted dangerous
driving, that it was in fact a danger to other road users, whether he appreciated the risk or not.

CA: Reckless driving requires subjective perception of risk, dangerous driving is purely objective.

Followed R v Gosney
Reference to “dangerous”
- Viewed objectively was dangerous
- There must also have been some fault on the part of the driver, causing the situation.
- Fault does not necessarily involve deliberate misconduct or recklessness or intention to drive in a
manner inconsistent with proper standards of driving. Nor does fault necessarily involve moral blame.
- There is fault in inexperienced or a naturally poor driver, while straining every nerve to do the right
thing, falls below the standard of a competent and careful driver.
- Fault involves a failure, a failing below the care of skill of a competent and experienced driver, in
relation to the manner of the driving and to the relevant circumstances of the case.