New Zealand Law/Criminal/Mens Rea

Cases

Kilbride v Lake

• Facts

Defendant's car had no WOF sticker, although apparently it had passed its WOF and the sticker had been previously affixed.

• Held

Where an offence requires no mental element, it is premature to discuss mens rea before actus reus.

Defendant is not responsible for actus reus if he could not have acted in a different way, ie if failure was involuntary.

Civil Aviation Dept v MacKenzie

• Facts

Aeroplane's tailfin dragged on phone line.

• Held

Due diligence defence available for public welfare regulatory offences.

The onus is on the defendant on the balance of probabilities to prove due diligence, after prosecution proves actus reus.

Millar v Ministry of Transport

• Facts

Millar drove while disqualified - claimed he thought the period of disqualification was over.

• Held

Belief has to be honest not reasonable.

There are 3 types of offences:

- those for which the prosecution must prove guilty mind

- strict liability offences for which a due diligence defence is available on the balance of probabilities; and

- absolute liability offences for which the prosecution need only prove the actus reus (and for which no defence is available).

R v Howe

• Facts

Rioters turned over police car.

• Held

Prosecution has to prove mens rea for every part of the offence even though defendant unlikely to know vehicle was Crown vehicle.

Honest and reasonable belief might provide a defence.

R v Harney

• Facts

Defendant stabbed victim who died, claimed he didn’t mean to injure victim seriously.

• Held

Recklessness = foresight together with an intention to continue with a course of conduct regardless.

===Waaka v the police

• Facts

Defendant is charged with assaulting a policeman in the execution of his duty.

• Held (CA)

Accused must know that policeman is in the execution of his duty, although it is sufficient if he wilfully shut his eyes or was indifferent as to whether the policeman was in the execution of his duty.

Police v Starkey

• Facts

Published defamatory material about a candidate.

• Held

The offence is a hybrid offence.

The prosecution has to show:

- defendant intended to publish the document

- the document contained an untrue statement (strict liability)

- the statement was defamatory (civil test); and

- the statement was calculated (ie intended) to influence vote of any elector

R v Nedrick

• Facts

Defendant set fire to a house. A child inside the house died. The defendant was charged with murder.

• Held

1. Usually a jury needs no explanation of intention.

2. If jury does need an explanation, they should be told that a person can intend a result even if he or she doesn’t want it to occur.

3. However, if the defendant doesn’t foresee, he cannot intend.

If defendant foresaw but thought risk slight, might intend.

If defendant did forsee and thought virtually certain, jury can easily infer intent.