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Crimes Bill-82-1 CRIMES BILL EXPLANATORY NOTE ExcEpT for the changes mentioned later in this note, and a few minor drafting alterations, the text of this Bill is the same as that of the Bill introduced in 1959, as reported back to the House by the Statutes Revision Committee in 1960. The amendments recommended by the Committee have been incorporated in the text, and the clauses of the Bill have been renumbered accordingly. The Bill consolidates and amends the Crimes Act 1908 and its amendments, including the Criminal Appeal Act 1945, the Capital Punishment Act 1950, and the Offences at Sea Act 1953. The source of each clause in the Bill is shown at the foot of each clause, in the form of a reference to the corresponding enactments replaced. At the end of this note there is a comparative table showing where the repealed enactments appear in the Bill, and which of them have been omitted. DIFFERENCES BETWEEN Tms BILL AND THE 1959 BILL Clause 1 (2): The new Act is to come into force on 1 January 1962. Clause 5: The former subclause (3), which gave jurisdiction to the Courts of Ncw Zealand over offences committed in the Ross Dependency, has been omitted because of the passing of the Antarctica Act 1960. Clause 8 (1): Paragraph (c) has been redrafted to restrict jurisdiction to cases where the offender arrives in New Zealand in the ship or aircraft on which the offence was committed. This will make the law the same as that of the Canadian Criminal Code as amended in 1959. Clause 40: Subclause (2) is new. It justifies the use of force to prevent the escape of an inmate of a penal institution, or to recapture him after escape. Clause 70: Under section 91 (2) of the 1908 Act, a person who counsels another to be a party to an offence is himself a party to every offence which that other commits in consequence of the counselling, and which the first-mentioned person knew or ought to have known to be likely to be committed in consequence of the counselling. In this clause the words "or ought to have known" are omitted from subclause (2). This alteration is in line with the alteration made to clause 168 (1) (d), which is explained in a separate note. No. 82-1 11 Clause 128: Paragraph (c) of subclause (1 ) is new, and extends the crime nf rape to include cases where consent has been extorted by inducing fear that death or grievous bodily injury will come to a third person if consent is refused. Clause 131: Paragraph (b) of subclause (1) has been amended in order to make it clear that this paragraph does not apply to a de facto wife. Subclause (2) is new, and makes it clear that the consent of the girl is not a defence to a charge under the clause. Clause 145: This clause has been altered by omitting the words "or ought to have known", which appeared in the 1959 Bill after the words "he knew" but are not in the present law. The alteration is in line with the alteration to clause 168 (1) (d), which is explained in a separate note. Clause 167. This clause creates the separate crime of aggravated murder. Murder will be aggravated murder in two classes of case. The first is where there is an intention to cause death and the killing is planned and deliberate. The second is where there is an intention to cause death or bodily injury known by him to be likely to cause death and the act that causes the death is done for the purpose of (i) facilitating the commission of another crime; or (ii) facilitating fiight or avoiding detection on the commission or attempted commission of another crimes or (iii) resisting lawful apprehension in respect of any other crime. Subclause (2) provides that no one is to be convicted of aggravated murder unless he is charged with it in the indictment. The effect is that the relevant circumstances specified in subclause (1) will have to be set out in the indictment. The former clauses 167 and 168 have been consequentially combined. Also, consequential references to aggravated murder have been inserted in Clauses 160 (3), 169 (9), 170 (5), 171,176, 177 (2), 178 (9),180 (6), 182 (1), 340 (1),359 (2) and (3),and 373 (3). Clause 168 (1): Paragraph (d) has been altered by omitting the words or ought to have known", which appear in the existing section after the words "he knows". Attention has been drawn to these words by the much criticised decision of the House of Lords in Director of Public Prosecutions v. Smith [1960] 3 W.L.R. 546; [1960] 3 All E.R. 161. In effect, the House of Lords held that if a man does a wrongful act, directed against another, which a reasonable man would have foreseen might lead to serious physical injury, there is an absolute presumption that he intended this serious physical injury. As a result of the interpretation placed on the law by that decision a man was convicted of murder although it appeared from the evidence that he neither intended to cause death or serious harm nor foresaw the likelihood of death or serious harm. The purpose of the alteration made in this paragraph is to ensure that in the circumstances to which the paragraph applies the offender cannot be convicted of murder for being stupid. He can be convicted of murder if for any unlawful object he has done an act that he knew to be likely to cause death, and thereby killed someone, though he may have wanted to achieve his object without hurting anyone. Whether or not he knew that his act was likely to cause death will be a matter for the jury to decide on the evidence, and they may still infer such knowledge from all the circumstances of the case, including what the offender did and said at the time. ill Clause 170: Subclause (2) has been altered to require medical evidence in proof of diminished responsibility. Clause 172.· Subclause (0 of the new clause provides for the death sentence for aggravated murder, except in the case of pregnant women (where the sentence is imprisonment for life) and persons under 18 (where the sentence is detention during Her Majesty's pleasure). Subclause (2) provides for a mandatory sentence of life imprisonment for ordinary murder; but subclause (3) provides for the death sentence for ordinary murder if the offender has previously been convicted in New Zealand of aggravated murder or murder, subject to the same exceptions for pregnant women and persons under 18. Subdause (4) provides that where the Judge finds that the offender has been previously convicted of aggravated murder or murder the offender may appeal to the Court of Appeal against that finding. If the Court of Appeal is satisfied that the finding should be set aside it is to quash the death sentence and substitute a sentence of imprisonment for life. Clause 209: In subclause (2), the age of 16 has been substituted for the age of 14. Clause 210: This clause has been altered following the omission (in accordance with the report of the Statutes Revision Committee in 1960) of a former clause based on section 229 of the 1908 Act and relating to the taking away of a girl under 18 with intent to cohabit with her. The reason for the omission of the former clause was that it made elopement a criminal offence, and this was felt to be unjustified. Subclause ( 1 ) of this clause has therefore been extended to include abduction with intent to have sexual intefcourse. Also, the maximum penalty has been altered to 7 years' imprisonment (instead of 14 years), so as to restore the penalty provided for in section 230 of the Crimes Act 1908, and also to bring it into line with the penalty in clause 134 for sexual intercourse with a girl under 16. The heavier penalty of 14 years is available for kidnapping under clause 209. Subclause (2) is new, but is based on the original section 229 (2) of the Crimes Act 1908 before its amendment in 1952. Clause 220: The last part of subclause (2) has been redrafted to make it clear that a subsequent conversion of something previously obtained with consent cannot be theft where the property in the thing had passed in the first instance. Clause 228: The maximum penalty for conversion has been altered from 3 years to 7 years; and the clause of the 1959 Bill imposing the heavier penalty for conversion with intent to commit a crime or avoid arrest has been consequentially omitted. The earlier provision relating to the cancellation of motor-drivers' licences has also been omitted. It is intended to include it in a general amendment to the Criminal Justice Act 1954 so as to give powers to Magistrates' Courts and the Supreme Court in relation to a list of offences, including conversion. Clause 238 (1) has been redrafted to ensure that the intent to extort, etc., applies to all the paragraphs of the subsection, as is at present the case under section 269 of the 1908 Act. Clause 316: Subclause (1) has been redrafted to declare the law more precisely in the light of the decisions of Christie v. Leachinsky, [1947] A.C. 573 and Getberg v. Miller [1961] 1 W.L.R. 153; [1961] 1 All E.R. 291. iv There has also been omitted from this clause the provision of the 1959 Bill that if it is found that a person has been arrested by mistake he must be released.
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