Design your own referenda questions

July 9th, 2009 at 8:00 am by David Farrar

A site has been established allowing people to design their own referenda questions. The intent is to mock the upcoming referenda – they overlook the minor fact of course over 300,000 signed a petition to trigger the upcoming referenda – something managed only four times in a dozen years, despite scores of attempts.

Anyway here are my questions:

refer1

Or should we use the term culled?

refer2

Hopefully everyone agrees on that one.

refer3

The accent does it for me everytime!

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56 Responses to “Design your own referenda questions”

  1. ernesto (257 comments) says:

    I think the ginga’s comment is a bit over the top… even for your humour. Jews are typically a little more restrained on the whole extermination/genocide/culling gag.

    GINGA LIBERATION FRONT

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  2. Colonel Masters (420 comments) says:

    the intent is to mock the upcoming referenda

    What is (are) the other one(s)?

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  3. bruceh (102 comments) says:

    DPF: The accent does it for me everytime!

    and the blue eyes

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  4. Ruby (110 comments) says:

    I am just as shocked as everyone else about Clayton Weatherston, however, I don’t understand all the sudden outrage regarding the provocation defence. It’s been around in New Zealand for a long time and I remember when studying criminal law at university a case where a woman stabbed a man around 76 times. People make it seem like this is the first time something horrific like this has happened as if it’s some oversight of the law but the truth is it’s been used (successfully) many times before. I think the woman who stabbed the man succeeded in her defence too, although some of the other lawyers here might remember that case (and the many other cases) more clearly than I – so to be honest while it’s greatly disturbing I would not actually be surprised if the defence succeeds in this case also.

    Yeah, the world’s a fucked up place.

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  5. xxx (35 comments) says:

    Not sure people are unusually outraged about the act of the crime, Ruby. More likely at the arguments by his lawyer as to why it’s manslaughter, not murder. Such as he could’ve chosen a more sturdy knife and his glasses got knocked off his face.

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  6. xxx (35 comments) says:

    but back on topic…

    http://should-a.com/ivis80

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  7. philu (13,393 comments) says:

    should all politicians..and their pre-election promises…

    ..be checked/evaluated ..

    ..using polygraphs..?

    ..on those politicians..?

    ..and their ‘promises’..?

    phil(whoar.co.nz)

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  8. Banana Llama (1,105 comments) says:

    http://should-a.com/h4bau0

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  9. expat (4,048 comments) says:

    You have obviously missed the majority demographic of shrieking harpie like shrews – the accent isn’t so cute at 123 decibels.

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  10. NOt1tocommentoften (436 comments) says:

    Ruby – you’re right the defence definitely does succeed in some cases but I don’t believe a jury in Christchurch will buy the defence here. I don’t think the jury will stomach any kind of argument which suggests it was the type of circumstances in which the reasonable person would have lost the power of self control.

    The Law Commission released a report in 2007 recomending the defence be repealled in NZ. The report is a good read, and as bas as this current case is, it would be good if it provided a prompt for those in Government to take on the recomendations in the report on board and move to repeal the defence.

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  11. Murray (8,842 comments) says:

    Ruby that Weatherston would actually attempt to reduce the horror of his actions by trying to place any of the blame on the girl is entirely repulsive.

    If anything he is harming his case (if that were possible).

    There is no defence for his actions.

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  12. RainbowGlobalWarming (295 comments) says:

    http://should-a.com/65fdiq

    Obviously Mr Referenda is suited to some things and not others.

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  13. Inventory2 (10,181 comments) says:

    Here’s our first offering

    http://keepingstock.blogspot.com/2009/07/new-referendum.html

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  14. Camryn (551 comments) says:

    DPF – So your third proposal would allow Irish females into NZ and your first proposal would then see many of them killed?

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  15. RainbowGlobalWarming (295 comments) says:

    Phil’in

    http://should-a.com/ayal1p

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  16. MyNameIsJack (2,415 comments) says:

    Great idea, but they need a faster server.

    http://should-a.com/fm9st2

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  17. Ratbiter (1,265 comments) says:

    Should Rape as part of a good night out be a criminal offence in New Zealand?

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  18. Ratbiter (1,265 comments) says:

    Should Winston…

    http://should-a.com/ifztox

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  19. Sapient (24 comments) says:

    Not to excuse the actions of this nutball but:
    http://should-a.com/t4nxw2

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  20. Short Shriveled and Slightly to the Left (774 comments) says:

    http://should-a.com/k56xru

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  21. bearhunter (859 comments) says:

    “You have obviously missed the majority demographic of shrieking harpie like shrews – the accent isn’t so cute at 123 decibels.”

    Couldn’t agree more. Irish women and their whining harridan voices are high among the reasons I left Ireland in the first place. They might sound nice to the untrained ear, David, but in reality they are harpies.

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  22. eenymeeny (17 comments) says:

    All Blacks?

    http://should-a.com/oc01tg

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  23. Christopher Simpson (28 comments) says:

    David, surely Nicole Kidman would be an exeception to the Ginga extermination referenda?

    Chris

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  24. Ruby (110 comments) says:

    Murray (3562) Vote: 2 0 Says:
    July 9th, 2009 at 8:53 am
    Ruby that Weatherston would actually attempt to reduce the horror of his actions by trying to place any of the blame on the girl is entirely repulsive.

    If anything he is harming his case (if that were possible).

    There is no defence for his actions.

    Yes there is and that defence is provocation. If it couldn’t be argued, his defence would be thrown out by the judge. Whether or not it succeeds is another matter.

    I’m not speaking from a moral standpoint I’m merely saying as repulsive as you find him putting the blame on the girl (hey, he went as far as murdering her so what the heck) that’s just the way it is. If you don’t like it you’ll have to pressure our politicians to change the law, otherwise this defence still exists and is a legally available and valid way of challenging the Crown’s case.

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  25. Jack5 (4,905 comments) says:

    The lefties and greenies who brought us MMP are basically anti-democratic. They think their elite know better than the ignorant masses. Therefore they hate referenda.

    The problem is they control the MSM and are setting the tone of debate. This and the MMP list system that predicts many MPS from voter scrutiny is making many politicians exceedingly arrogant.

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  26. Ruby (110 comments) says:

    Here are my criminal law notes on the matter from university. As I stated in the other thread, if Weatherston gets off as angry as it would make the general public it is the law that is to blame, not his lawyer.

    KILLING UNDER PROVOCATION – VOLUNTARY MANSLAUGHTER

    S169. Provocation.
    1) Culpable homicide that would otherwise be murder may be reduced to manslaughter if the person who caused the death did so under provocation. Provocation is not a defence for any crime except for murder (it’s a partial defence which reduces the verdict).

    3) Whether there is any evidence of provocation is a question of law. Note that this is a question for the trial judge, not the jury.
    4) Whether, if there is any evidence of provocation, the provocation was sufficient as aforesaid, and whether it did in fact deprive the offender of the power of self-control and thereby induced him to commit the act of homicide, are questions of fact. This is for the jury to decide.

    - R v Matoka [1987] 1 NZLR 340 (CA) – the defendant had made a written statement (the only evidence) that his wife had said she’d slept with his best friend and wanted the marriage to end. The trial Judge exercised his discretion and refused to lead defence to the jury, because it wasn’t sufficient and provocation had come from wife, not the victim (as it must) – and nowhere had the defendant claimed loss of self-control.
    It was argued on appeal that the victim had provoked him by sleeping on his bed, but the CA wasn’t convinced – there must be evidence of the provocation and it must be conjectural. The Judge will decide whether there’s evidence first, then the jury. Is there sufficient evidence reasonably capable of leading a jury for s169? A credible narrative of causation of provocation was put by the Judge.

    S 169(2). The evidence of provocative conduct. Anything done or said. The victim’s provocation doesn’t necessarily have to be to the defendant – it could be to a third party. It’s not even necessary that the victim intended to provoke the defendant. This includes taunts, threats, etc. any range of possibilities so long as it goes on to satisfy the second point test in s169(2). An action need not be violent, may even be lawful, but any exercise conferred by law (e.g. an arrest) is expressly excluded by s169(5) – can’t plead provocation.

    R v Taaka [1982] 2 NZLR 198 (CA) – alleged attempted rape by the victim (the defendant’s cousin) of the defendant’s wife.

    Cooling time – in the common law provocation only succeeded if there was a sudden or temporary loss of self-control. S 169 says nothing about the suddenness of the response. Any lapse of time between the provocation and death suggests an ordinary person would have regained consciousness, but this is a judgement of human nature – today it’s difficult to make this generalisation. It may even build up over time, and lose control, e.g. battered woman, where a delayed reaction is very common.

    R v McGregor [1962] NZLR 1069 – this case held that the common law rule still prevails (but didn’t suggest immediacy was required), because it was said that nothing in s169 suggested that the lapse is ok. The CA did accept this though that it’s not necessary provocation should occur immediately prior to the killing, but didn’t exactly say when. When there’s been more than one provocative incident, the last one will count.

    R v Taaka – it was said that the victim revived the provocation because of a fight he had 13 days earlier. The Court accepted that and allowed a retrial. Note that it’s less likely the defendant will be left to the jury if there’s been a lapse, because of the subjective and objective legs of the test (read S&B on this).

    R v Mita [1996] 1 NZLR 95 – Fisher J said “continuous state of hot blood and uncontrolled anger” – the provocative incident was 5 days later. The provocation wasn’t put to the jury, the CA clearly doesn’t require immediacy, but a sudden transition to loss of control.

    S169. The test for provocation.
    2) Anything done or said may be provocation if,
    a) In the circumstances of the case it was sufficient to deprive a person having the power of self-control of an ordinary person, but otherwise having the characteristics of the offender, of the power of self-control; and
    b) It did in fact deprive the offender of the power of self-control and thereby induced him to commit the act of homicide.

    The subjective leg: s 169(2)(b) – it actually deprived the defendant of the power of self-control and led them to kill the victim. Deal with the subjective leg first, then the objective. The provocative conduct must “in fact” and i.e. bring about the killing. Entitled to any evidence, including the defendant’s bad temper, irascibility, intoxication, personal history, psychiatric conditions, etc. with respect to the subjective leg. What is loss of self-control? Not deliberate or pre-meditation. The Court says “hot blood… not master of his or her own mind”. Being angry is not enough, going on, must have the necessary MR to murder – only will they be open to the charge of murder, otherwise you’d just argue automation.

    - R v Campbell (1997) 15 CRNZ 138 (CA) – C had a difficult childhood, broke up with his partner and had alcohol. Went to the victim’s house, who was a family friend, and who put his hand on his knee and looked at him, reminding him of sexual abuse, so he used an axe to kill him. C tried to argue that he’d acted involuntarily although not unconscious. He couldn’t stop. A non-declarative memory, sparking a response. The trial Judge hadn’t put this to the jury, and the defendant was looking for an acquittal in the form of some kind of conscious involuntary automatism.
    The CA said the defence of provocation is available, but the defendant would still remain partly responsible unless he was insane and in some way unconscious. This shows that the NZ law has no halfway house. On the facts it was found that the actions were deliberate and voluntary and provocative didn’t succeed, the point of the subjective leg is that you need some loss of self-control.

    The objective leg: s 169(2)(a) – not a reasonable but an ordinary person test. What was said or done must have been sufficient to deprive an ordinary person in the defendant’s circumstances with the power of self-control and characteristics of the defendant the provocation is of sufficient gravity to get a normal person to lose their self-control. It’s difficult to convince the jury that the defendant is to deny to abnormal people with extraordinary responses.

    - R v Anderson [1965] NZLR 29 (CA) – the victim made a remark that suggested that she may have been unfaithful, so he attacked her but was pulled apart by a cousin at the party. Later on their way home he beat her and killed her.
    The Court held that the defence was not available because no ordinary person could have been led to this kind of response. The degree, method and continuation was of the kind no ordinary person would do, and the defendant had discovered that the victim was innocent. This case suggests that there’s some kind of threshold that provocation and response are proportional, but ordinary people who lose self-control will respond disproportionably.
    First you have to look at the provocative act and compare the defendant’s response and compare with an ordinary hypothetical person. If the act was completely disproportionate to the response then it’s unlikely to succeed.

    - R v Rongonui [2000] 2 NZLR 385 – the victim refused to help the defendant with babysitting, so the defendant responded, which worried the victim, so the victim produced a knife. The defendant grabbed the knife and stabbed her 150 times, in the processing breaking the knife and getting another one.
    The trial Judge said that the provoked reaction must be proportional to the provocation. In the minority judgment in the CA Elias CJ said that it only relates to the subjective leg of the section (loss of control by herself).

    The circumstances of the case – includes information given to the accused by the victim or others, past or present history etc.

    R v McGregor [1962] NZLR 1069 – the defendant had quarrelled with a neighbour many times and on one day discovered that his father had a drink with him, so shot the neighbour. The context may be very relevant, the “slumbering fire of passion bursting into flames” – on the facts held that no such incident had occurred, found that the neighbour didn’t do anything to arouse this so the defence was denied.

    Characteristics of the offender

    - Bedder v DPP [1954] 2 All ER 801 – the defendant killed a prostitute who teased him of his impotence.
    The trial Judge said a sexual characteristic couldn’t be taken into account – “what would be the reaction of a reasonable impotent man” – basically if you want to recognise a physical characteristic, then you have to take into account the mental characteristic.
    However, he said if this happens, then the test then ceases to have any value – you can’t have an ordinary test for an extraordinary person, therefore he took a purely objective test. This has been criticised because then the test will always fail for these people.
    In response NZ’s s169(2) was enacted purely to override this case. Think about a blind person being provoked, a purely objective test is not applicable in NZ.

    R v McGregor [1962] NZLR 1069 – North J went through the history of the test. He said that the legislature must have intended a personal characteristic to be taken into account. His two propositions are,
    - that the offender must be presumed to possess self-control but was weakened because of the characteristic particularly possessed by him, and
    - the words or conduct must have been exclusively or particularly provoked to the individual and only because of the characteristic.
    Adams suggested that you can take into account the offender’s characteristic when assessing their sensitivity of the provocation, but the response must be judged against an ordinary level of self-control relevant to the sting and gravity of it. But you shouldn’t say a build up over time can be taken into account, it has to be as if the sting was immediately and for the first time.

    R v Campbell [1997] 1 NZLR – in favour of Adams, the gravity of the provocation may be taken into account but not the level of self-control part.

    Luc Theit Thuan v R [1996] 2 All ER 1033 (PC) – Lord Stein’s dissent is very powerful in this case – refused to take a literal interpretation and such an approach is unjust, particularly to battered women.

    - R v Rongonui [2000] 2 NZLR 385 – the defendant had a history of physical abuse, brain-damaged post traumatic stress, self-esteem depended on her role as a mother.
    Far from an ordinary person, the trail Judge commented that it’s hard to take the Adams approach, especially for a jury. The majority view followed Adams, and is the NZ law at present – that the gravity and sting may be taken into account, but not the level of self-control.
    Tipping J said that this is because the approach in McGregor is impossible to distinguish from the wording in s 169 – the “level of self-control of an ordinary person” – if you take North J’s approach, it would change it to mean to the level of self-control of an extraordinary person. “A metaphorical description of what this involves would be to say that provocation which for an ordinary person is at level 5 of gravity, might be at level 7 for the accused because of the characteristic… basically the ordinary person has to be judged had they been provoked at level 7”.
    On the facts it wasn’t a qualifying characteristic – her history had lowered her self-control. In that view the defence of provocation shouldn’t have been left to the jury. Thomas J and Elias CJ took Lord Stein’s direction as the minority, and the CJ preferred the McGregor approach, saying it’s impossible to make a division. Bedder said the level of self-control will have decreased over time, but the HL rejected this. The CJ is saying you have to accept that’s what happens – effectively she’s saying your characteristic is causally related to your loss of self-control.

    R v Smith (Morgan) [2000] 3 WLR 654 (HL) – provocation is like a justification rather than an excuse. In English law they have now reverted to the North J approach, in this case the minority position in Rongonui was reverted to.

    Normal and abnormal characteristics

    R v McGregor [1962] NZLR 1069 – may be physical or mental characteristic but had to be something definitive and significant to make the defendant sufficiently different from ordinary mankind. This must clearly be wrong as there are ordinary characteristics we all share should all be stingable (e.g. love for a child).

    Temporary attributes

    R v McCarthy [1997] 2 NZLR 550 – held that it had to be sufficiently permanent (i.e. intoxication should be excluded) – a characteristic isn’t temporary. How permanent does it have to be before it becomes one?

    R v Morhall [1995] 3 All ER 659 (HL) – Lord Goff said that temporary characteristics could be a characteristic if subject to taunts, e.g. asthma, but excluded intoxication on grounds of policy. But could take into account some kind of addiction, if that was subject to the taunting.

    Relationship between the provocation and a characteristic

    R v McGregor [1962] NZLR 1069 – the CA stated in obiter comments that there must be a real or direct connection. The provocation would have to be directed or aimed at that characteristic. It’s easier to establish for physical characteristics. As for e.g. excitability, this would need to be proved.

    R v Fryer [1981] 1 NZLR 748 (CA) – disorderly personality, violence and emotional. However, the Court found that it went to his level of self-control, therefore it couldn’t be taken into account as a mental abnormality. It must be subject to the taunt. Note that CJ Elias had alluded to diminished responsibility in Rongonui.

    Age, gender and race – e.g. battered women and cooling time, but doesn’t go back to the objective test as to the loss of self-control.

    R v Rongonui [2000] 2 NZLR 385 – the only factor relating to self-control which will change the level of self-control is youthfulness.

    R v Trounson [1991] 3 NZLR 690 – the Court held that you can take these into account to vary the standard only at the extremes. Being 18 was held to be irrelevant.

    Accident and mistake

    S 169(6). This section shall apply in any case where the provocation was given by the person killed, and also in any case where the offender, under provocation given by one person, by accident or mistake killed another person.

    R v McGregor [1962] NZLR 1069 – the defence is still available to them, but it appears in all other situations that the provocation must emanate from the victim. In English law, by statute, you can act against a third party.

    R v White (Shane) [1988] 1 NZLR 122 (CA) – if a group of individuals teasing, even if one is silent, the defendant may kill them and claim provocation. This is complicated if the defendant makes a mistake about the nature or circumstances. The Court held that if you have made a mistake, that mistake would have to be a mistake a reasonable person would have made.

    R v Campbell [1997] 1 NZLR 16 – this seems to be abandoned in extreme circumstances (as in this case, mistakenly thinking that he was being subject to a sexual advance). A flashback attributed to the hypothetical person.

    R v Oakes [1995] 2 NZLR 673 (CA) – a woman killed her partner and the Court held that battered woman syndrome may lead to heightened awareness than a person who didn’t suffer from it. These two cases suggest it’s subjective towards sensitivity.

    Self-induced provocation

    Edwards v R [1970] AC 648 – provocation is not always necessarily denied when the defendant begins the process. Here they threatened the victim with blackmail and the victim responded threateningly with a knife and the defendant then killed with the same knife. It was held that the defence should be left to the jury to decide.

    R v Johnson [1989] 2 All ER 839 (CA) – must remember s169(5): No one shall be held to give provocation to another by lawfully exercising any power conferred by law, or by doing anything which the offender incited him to do in order to provide the offender with an excuse for killing or doing bodily harm to any person. E.g. an arrest.

    Involuntary manslaughter – this is defined negatively. If someone is killed, and it’s not murder, nor voluntary manslaughter, then it’s involuntary manslaughter. There are 5 different forms, the first two are the most common.

    Section 160 (2). Homicide is culpable when it consists in the killing of any person-
    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 feat of violence, or by deception, to do an act which causes death; or
    e) By wilfully frightening a child under the age of 16 years or a sick person.

    Killing by an unlawful act: s 160(2)(a). The unlawful act must be a crime (not a tort), but it may be any crime.

    - R v Lamb [1967] 2 All ER 1282 (CA) – a person shot and killed his friend by mistake, by pointing a loaded revolver at him. The firing pin was on an empty chamber, but he didn’t know the cylinder would rotate.
    The Court made it clear that to be liable for manslaughter there must be an unlawful act – the only possible unlawful act in this case may have been assault by threat, but under the circumstances there was no assault because neither he nor the victim believed the gun offered any threat at all. It must be a criminal at. A tort would not be enough for a conviction of manslaughter.

    R v Myatt [1991] 1 NZLR 674 – in NZ, any unlawful act will suffice (e.g. against property, and you killed someone in the process), or even strict or absolute liability offences, unless you argue that they’re not true crimes. In this case there was a collision between two powerboats. The defendant had committed an offence against the powerboat bylaws, and the CA took the view that the unlawful act could breach any law.

    R v Grant [1966] NZLR 968 – arguments have been made that there must be a causal connection between the death and the circumstances which make the act criminal, e.g. driving without a licence and in the process killing someone. However, the CA rejected this.

    R v Hawkins 21/2/01 (Napier) – appeared to be resurrected. The defendant had killed someone in a collision while driving without a licence, however the collision occurred as a result of his epileptic fit. The Judge held that no manslaughter because it would have had collision whether he had a licence or not. This is a direct contradiction of Grant and must be incorrect (had he not been driving, the epileptic fit would not have caused any danger).

    The unlawful act must be dangerous

    Thabo Meli v R [1954] 1 All ER 373 – it’s not necessarily the final act that has to be unlawful (although dumping a body is unlawful).

    R v Grant [1966] NZLR 986 – the CA recognised that the unlawful act must be one that is likely to cause harm.

    R v Myatt [1991] 1 NZLR 674 – the CA adopted the English rule, that an act all sober and reasonable people would inevitably recognise, subjecting the other person to some harm, albeit not serious harm. The test is objective and whether a reasonable sober person would recognise. The CA held that all that’s necessary is that portion of the unlawful act that is likely to cause harm to a part of class or persons of who the victim is one, which doesn’t mean the public at large in every case.

    A-G’s Reference (No 3 of 1994) [1997] 3 All ER 936 – how far do we extend this risk? The Court held that it will be manslaughter where the defendant intentionally injures a woman who’s pregnant and as a result the child dies after birth. Orchard in S&B says that the HL is expressing what is implicit in Myatt, that it need not be directed at the victim. It’s enough if it’s likely to hurt someone, even if the class of the victim isn’t foreseeable.

    Dawson – things get difficult if the defendant is aware of the risk but the reasonable person isn’t. two defendants here robbed a petrol station, but the victim died shortly after the robbery from a heart attack. The poor heart condition would not have been evident to a reasonable person. The CA said that the defendant knew he was a middle aged man, and that’s all the knowledge they had.

    Watson – broke into the victim’s house, discovered an old and frail man but continued with the theft of his possessions. This knowledge would have been attributed as they’d realised it, and were aware.

    Exclusion (from s 160(a)) of positive acts that only become unlawful because of a failure to exercise care.

    R v Myatt [1991] 1 NZLR 674 – thought that if the defendant does something positive but fails to observe a duty of care, then that action should be dealt with under that section as it involves a positive act. But this must be wrong.

    Andrews v DPP [1937] All ER 552 (HL) – this English case says they should be treated as an omission of gross negligence.

    R v Powell 22/11/01; CA 192/01 – that standard of gross negligence has been introduced in NZ law. It should be dealt with under s 160(2)(b).

    S 160(2)(b). Killing by unlawful omission: the duty to act – the first step is to establish the duty to act. These duties are actually spelled out in the Crimes Act, from ss 151 to 157. Relationship between the defendant and victim – the defendant must have charge of the victim. Necessaries of life include any service required to sustain life and health. Can have multiple defendants in charge

    R v Mwai [1995] 3 NZLR 149 (CA) – the CA held that there may be other common law and statutory duties that can be used as a basis for this.

    S 151. Duty to provide the necessaries of life – every one who has charge of any other person unable, by reason of detention, age, sickness, insanity or any other cause, to withdraw himself from such charge,, and unable to provide himself with the necessaries of life, is (whether such charge is undertaken by him under any contract or is imposed upon him by law or by reason of his unlawful act or otherwise howsoever) under a legal duty to supply that person with the necessaries of life, and is criminally responsible for omitting without lawful excuse to perform such duty if the death of that person is caused, or if his life is endangered or his health is permanently injured, by such omission.

    R v Myatt [1991] 1 NZLR 674 – a loco parent of pre-schoolers’ failure to consent to medical treatment? “s 151 applies whether the defendant has taken charge or had charge imposed upon them by any law or by reason of unlawful act or howsoever”. A defendant may assume this responsibility by just a temporary control even if you’re unconsciously taken upon.

    S 152. Duty of a parent or guardian to provide necessaries – every one who as a parent or person in place of a parent is under a legal duty to provide necessaries for any child under the age of 16 years, being a child in actual custody, is criminally responsible for omitting without lawful excuse to do so, whether the child is helpless or not, if the death of the child is caused, or if his life is endangered or his health permanently injured, by such omission.

    R v Stone and Dobinson [1977] 2 All ER 354 (CA) – S allowed an elderly relative to live in a house, was neglected and then died. It was held that the jury could find reason of duty because occupied a room in the house and D (the partner) had made some feeble attempts at helping the victim, that was enough to establish a duty. It appears from s 151 that a similar decision can be expected in NZ, even when you didn’t want to assume responsibility.

    S 153. Duty on employers to provide necessaries. S 155. Duty of persons doing dangerous acts – every one who undertakes (except in the case of necessity) to administer surgical or medical treatment, or to do any other lawful act the doing of which is or may be dangerous to life, is under a legal duty to have and to use reasonable knowledge, skill, and care in doing any such act, and is criminally responsible for the consequences of omitting without lawful excuse to discharge that duty. S 156. Duty of persons in charge of dangerous things – every one who has in his charge or under his control anything whatever, whether animate or inanimate, or who erects, makes, operates, or maintains anything whatever, which, in the absence of precaution or care, may endanger human life is under a legal duty to take reasonable precautions against and to use reasonable care to avoid such danger, and is criminally responsible for the consequences of omitting without lawful excuse to discharge that duty.

    R v Myatt [1991] 1 NZLR 674 – ss 155 and 156 clearly overlap, but neither will apply unless there is a reasonable possibility that someone died if reasonable care wasn’t taken. Mere risk of injury isn’t enough. Note that “dangerous things” in s 156 is a question of fact.

    R v Burdee (1916) 86 LKJB 871 (CCA) – unqualified person advised an elderly and ill person not to eat for three days. The person giving the advice isn’t administering medical treatment, but it still under s 155, being “any unlawful act”.

    R v Turner (1995) 13 CRNZ 142 (CA) – control may be shared by more than one person. Held a factory was in charge of managing director and the manager – includes things dangerous in operation (e.g. cars, speedboats, trams) or static (explosives, toxic substances, loaded firearms – a swimming pool even). Further held that things may endanger life because of the way they are operated. It was the factory that was dangerous because of the way it was operated that allowed the contaminated food. This view supports a wide view of what is dangerous.

    R v Mwai [1995] 3 NZLR 149 (CA) – the CA thought that bodily fluids containing HIV was a dangerous thing in terms of s 156. therefore anyone who is in charge of this has a duty to avoid endangering life with it, e.g. by contraception, or at very least having the informed consent of the victim. The simple point is that the parameter for this is extremely broad.

    S 157. Duty to avoid omissions dangerous to life – Every one who undertakes to do any act the omission to do which is or may be dangerous to life is under a legal duty to do that act, and is criminally responsible for the consequences of omitting without lawful excuse to discharge that duty.

    R v Crump; R v Johnston [1970] Recent Law 191 – if death results, it’s culpable homicide. If not, it’s an offence under s 190. Boys died in an accident at a bush camp. The defendant was the organiser, charged with manslaughter (s 157), as he’d undertaken responsibility for them. The charge failed because causation couldn’t be shown (had the car door been fixed, they still may not have escaped). The idea is you can be held liable for the undertaking you give (if the harm could be avoided), e.g. “I am experienced” and they trust you on that basis.

    R v Wacker 2003 1 CrAppR 329 – engaged in joint criminal enterprise. Argument was they were in a duty with each other (one had died). Said on the basis it was criminal activity. But the Court as a matter of public duty said you’re respect for duty of partner therefore manslaughter.

    Fault required for manslaughter – under the civil law, if it was due to failure to exercise reasonable care (negligence), criminal law requires this to be gross negligence.

    R v Bateman [1925] All ER Rep 45 (CCA) – more than a mere matter of compensation for subjects, showing such disregard for safety as to be criminal.

    R v Storey [1931] NZLR 417 – this level of gross negligence didn’t apply to ss 155, 156. S was alleged of manslaughter because of driving which caused death. Court held requirement of reasonable care means the civil standard would apply (from the perspective of an objective reasonable person). Note this result is highly unusual and criticised as similar worded statutes in AU and CA require gross negligence.

    R v Yogasakaran [1990] 1 NZLR 399 – affirmed the above case. The defendant was an anaesthetist who caused a patient’s death by injecting the wrong drug. The drawer had been improperly stocked. The conviction was confirmed as he’d simply failed to read the label. This was on the basis of the civil standard of a reasonable person – the CA acknowledged that NZ was more severe but doubted it would produce unjust results, as you’d still have to show the causation of the negligence.

    R v Burney [1958] NZLR 745 (CA) – defendant’s child died of malnutrition and infection, alleged breach of s 151. The Court decided that negligence was sufficient fault. Negligence had to be of a high degree – the standard developed in Storey didn’t apply as statute didn’t actually spell it out.

    R v Walker [1958] NZLR 810 – described as negligence of sufficiently high degree to incur criminal responsibility – the essence appears to be if the defendant’s behaviour falls so far below the standard of reasonable behaviour, the jury says deserves punishment it’s this high degree.

    A general requirement of gross negligence – the government had instigated the McMullin report, recommending NZ be brought in line with other common law countries (i.e. gross negligence being essential), because the standard isn’t high enough for manslaughter, and the same set of facts would get low standards but not higher. Ordinary standards also caused problems in medical context – feeling it would discourage risky medical practice. Therefore the standard is spelt out in s 150A (i.e. only deals with homicide). Therefore the ordinary standard would apply if you’re charged with any other criminal section. Basically if you don’t die of malpractice, they’d get the lower standard. If you do, they’d get the higher standard.

    S 150A. Standard of Care required of persons under legal duties–
    1) This section applies in respect of the legal duties specified in any of the sections 151, 152, 153, 155, 156, and 157.
    2) For the purposes of this Part, a person is criminally responsible for–
    a) Omitting to discharge or perform a legal duty to which this section applies–
    b) Neglecting a legal duty to which this section applies–
    only if, in the circumstances of the particular case, the omission or neglect is a major departure [note the avoidance of the term gross negligence] from the standard of care expected of a reasonable person to whom the legal duty applies in the circumstances.

    R v Adomako [1994] 3 All ER 79 (HL) – anaesthetist, the HL stated that breach of standard of care was so bad it should be judged by jury to be criminal. The point is the jury is deciding the major departure (what is so bad). In NZ, this may vary for each jury as to what is a major departure, so normative standard causes struggles.

    R v Mckie 3/8/00 Dunedin T13/00 – the defendant was a train driver who failed allegedly to respond to a warning light of obstruction on the line. Previous driver had made a warrant assuring that the line was clear. Young J said doesn’t require gross misconduct (e.g. intoxication) or consciously taking of a risk (although this may help) – it just required ignorance or failure to take a step, a major departure from the standard of care depends on each case.

    R v Burney [1958] NZLR 745 – the Court said the excuse had to be lawful, cannot be unlawful in origin. No set list is s 150 – read S&B, e.g. automatism, insanity, etc.

    S 160(2)(c) provides that it is culpable homicide for failure to observe duty as well as positive act.

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  27. jarbury (464 comments) says:

    “Should a leading question as part of a stupid referendum be a criminal offence in New Zealand?”

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  28. emmess (1,398 comments) says:

    Too long unfortunately

    http://should-a.com/0envhn

    Anyway I said
    Should mocking a perfectly sensible question then bitching about the cost which was roughly about what Labour was prepared to spend to save a single house in Waterview be obligatory on the part of the elite?

    or how about
    http://should-a.com/lvnl0r

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  29. Cerium (23,344 comments) says:

    “The problem is they control the MSM and are setting the tone of debate. ”

    They own the MSM?

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  30. Short Shriveled and Slightly to the Left (774 comments) says:

    http://should-a.com/cdpyrn

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  31. Ruby (110 comments) says:

    For those who didn’t bother reading the whole thing (apologies for the longness), the case I was referring to earlier that is similar to Clayton’s one is Rongonui, and it wasn’t 79 times it was 150:

    The victim refused to help the defendant with babysitting, so the defendant responded, which worried the victim, so the victim produced a knife. The defendant grabbed the knife and stabbed her 150 times, in the processing breaking the knife and getting another one.

    The trial Judge said that the provoked reaction must be proportional to the provocation. In the minority judgment in the CA Elias CJ said that it only relates to the subjective leg of the section (loss of control by herself).

    The defendant had a history of physical abuse, brain-damaged post traumatic stress, self-esteem depended on her role as a mother.

    Far from an ordinary person, the trail Judge commented that it’s hard to take the Adams approach, especially for a jury. The majority view followed Adams, and is the NZ law at present – that the gravity and sting may be taken into account, but not the level of self-control.

    Tipping J said that this is because the approach in McGregor is impossible to distinguish from the wording in s 169 – the “level of self-control of an ordinary person” – if you take North J’s approach, it would change it to mean to the level of self-control of an extraordinary person. “A metaphorical description of what this involves would be to say that provocation which for an ordinary person is at level 5 of gravity, might be at level 7 for the accused because of the characteristic… basically the ordinary person has to be judged had they been provoked at level 7”.

    On the facts it wasn’t a qualifying characteristic – her history had lowered her self-control. In that view the defence of provocation shouldn’t have been left to the jury. Thomas J and Elias CJ took Lord Stein’s direction as the minority, and the CJ preferred the McGregor approach, saying it’s impossible to make a division. Bedder said the level of self-control will have decreased over time, but the HL rejected this. The CJ is saying you have to accept that’s what happens – effectively she’s saying your characteristic is causally related to your loss of self-control.

    Interpret it however you can, I have no idea.

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  32. toad (3,673 comments) says:

    RGW said: Obviously Mr Referenda is suited to some things and not others.

    That’s obviously what DPF’s Irish females are for.

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  33. toad (3,673 comments) says:

    I liked this one by stevedore from g.blog.

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  34. emmess (1,398 comments) says:

    Too long again

    http://should-a.com/d8b159

    Should we be impressed at the socialist elite’s new found concern about saving roughly 2 dollars per person of your tax dollars to save on something as fundamental as democracy when in the past ten years or so they have wasted untold billions?

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  35. MyNameIsJack (2,415 comments) says:

    Way to threadjack ruby

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  36. Hurf Durf (2,860 comments) says:

    Hey phool:

    http://should-a.com/9hrnvv

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  37. toad (3,673 comments) says:

    Ruby – a couple of suggestions:

    a) Wrong thread.
    b) If you want to publish something that long, publish it on a site of your own and link to it.

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  38. philu (13,393 comments) says:

    heh..!

    phil(whoar.co.nz)

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  39. Ratbiter (1,265 comments) says:

    http://should-a.com/6qanc1

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  40. Ratbiter (1,265 comments) says:

    http://should-a.com/upqlpb

    Promise I’ll stop now…

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  41. Ruby (110 comments) says:

    MyNameIsJack (944) Vote: 1 1 Says:
    July 9th, 2009 at 11:49 am
    Way to threadjack ruby

    Not really, considering the Weatherston post wasn’t up before I started in this thread and since one of the referendum slogans was relevant to the case.

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  42. Put it away (2,888 comments) says:

    TL;DR

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  43. Kris K (3,570 comments) says:

    http://should-a.com/qbt7ob

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  44. Kris K (3,570 comments) says:

    http://should-a.com/8968oo

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  45. Kris K (3,570 comments) says:

    http://should-a.com/jt4u2r

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  46. jcuknz (704 comments) says:

    Should the illiterate be allowed to vote in New Zealand

    saves you having to link there:-)

    http://should-a.com/han00k

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  47. Murray (8,842 comments) says:

    Self defence/provication cuts out when you have killed your victim are playing fucking fun with body parts Ruby.

    NO DEFENCE.

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  48. Put it away (2,888 comments) says:

    The politically correct busybodies can’t stand the fact that the people they claim to be representing are going to get their chance to speak for themselves in the referendum, and it’s not going to be pretty for the PC wowsers

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  49. GNZ (228 comments) says:

    The Weatherston case reminds me of two things
    1) that the courts seem to allow some pretty stupid defences
    2) the procecution seems to flood us with completely tautological or irelevant –
    For example they seemed to have taken days to paint the picture that was almost completely covered by “He stabbed her a couple of hundred times” And for irrelevant we can have the bulk of the stuff about Weatherston’s childhood.

    The lawyers seem to be playing on the idea that juries might be a little less likely to convict a smart person or more likely to convict a person directly in proportion to how many times you refer to the same key facts.

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  50. winston smith (45 comments) says:

    http://should-a.com/yyaug9

    Inspired by Mr Baldock.

    http://should-a.com/hm72hy

    Someone else’s: http://should-a.com/x9bdxy

    Should a you a speak a good england?

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  51. Steve (4,522 comments) says:

    http://should-a.com/g9y57f

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  52. Hurf Durf (2,860 comments) says:

    The question makes perfect sense, you nincompoops. Unless it’s the idea that a reasonable, soft smack can be a part of good parental correction which you leftards can’t seem to get your heads around.

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  53. winston smith (45 comments) says:

    Although I am pro-boobie squeezing.

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  54. winston smith (45 comments) says:

    http://should-a.com/uvb7oh – VOTE NO.

    Just in case you think all lefties love winnie.

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  55. Cerium (23,344 comments) says:

    Those who claim the question makes sense have chosen a stance and don’t want to question it.

    Sounds very threatening – “if you don’t do as you’re told I’ll give you a reasonable, soft smack”.
    And no-ards don’t know, or don’t want to know, that that wouldn’t be illegal anyway.

    Most parents want to learn to be better parents. Better parental correction is to learn non physical techniques.
    T have been very involved in raising three kids, with minimal smacking, and they haven’t gone wild through lack of discipline, far from it.

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  56. noellevivien (1 comment) says:

    Re. Referenda. Hopefully you’ll get a majority on that last one, David. I have quite a few friends at home, not to mention a younger sister who are keen on the prospect of a new life in Aotearoa.

    They will, of course, need some help in settling in. ..

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