In what situations is culpable homicide regarded as murder, s167?
a) offender means to cause the death of the person killed;
b) offender means to cause any bodily injury to the deceased that they knows is likely to cause death, and is reckless whether death ensues or not;
c) offender means to cause death, and is reckless whether death ensues or not;
d) offender means to cause death, or bodily injury that knows is likely to cause death, and by accident or mistake kills another person,
e) offender for an unlawful object does an act that he knows to be likely to cause death, and thereby kills any person, though he may have desired that his object should be effected without hurting any one.
In what situations is culpable homicide murder whether the offender means/doesn’t mean death to ensure, or knows/doesn’t know that death is likely to ensue, s168?
a. means to cause grievous bodily injury for the purpose of facilitating the commission of any offences, facilitating flight, avoiding detection or resisting lawful apprehension in respect of any offence, and death ensues from such injury.
b. administers any stupefying or overpowering thing, for the aforesaid purposes, and death ensures from the effects
c. by any means wilfully stops the breath of any person, for any of the purposes aforesaid, and death ensues from such stopping of breath.
What are the one of the three things that must be shown for a person to be charged with murder under s167?
1) intended to cause death
2) knew that the death was likely to ensue
3) was reckless that the death would ensue
What is the case law regarding recklessness?
Recklessness means the conscious and deliberate taking of an unjustified risk. In NZ it involves proof that the consequences complained of could well happen, together with an intention to continue the course of conduct regardless of risk.
(R v Harney)
What is the case law, specific to s167(b) or (d), regarding recklessness?
Recklessness involves a conscious, deliberate risk taking. The degree of risk of death foreseen by the accused under either s167(b) or (d) must be more than negligible or remote. The accused must recognise a “real or substantial risk” that death would be caused.
(R v Piri)
What is the case law regarding in pursuit of an unlawful act/object?
Not only must the object be unlawful, but also the accused must know that his act is likely to cause death. It must be shown that his knowledge accompanied the act causing death.
(R v Desmond)
What is the legislation for parties to offences, s66(2)? This can provide criminal responsibility for people who are carrying out an unlawful purpose when one of them kills someone.
Where 2 or more persons have a common intention to prosecute any unlawful purpose, each of them is a party to every offence committed by any one of them if the commission of that offence was known to be a probably consequence of the prosecution of the common purpose.
What must be shown for joint responsibility?
it is not necessary to show that the secondary party knew the death was a probably consequence of their carrying out the primary purpose.
Rather it must be shown that the secondary party knew it was a probably consequence that the principal might do an act that would, if death ensued, bring their conduct within terms of s168.
What is the punishment for murder, s172?
Every one who commits murder is liable to imprisonment for life.
What is the effect of the Sentencing Act 2002, s102?
- An offender who is convicted of murder must be sentenced to imprisonment for life unless, given the circumstances of the offence and the offender, a sentence of imprisonment for life would be manifestly unjust.
- If a court does not impose a sentence of imprisonment for life on an offender convicted of murder, it must give written reasons for not doing so.
What is the definition of an attempt to commit an offence, s72?
Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.
What is the case law regarding proving an attempt to commit an offence?
When proving an attempt to commit an offence it must be shown that the accused’s intent was to commit the substantive offence. For example, in a case of attempted murder it is necessary for the Crown to establish an actual intent to kill.
(R v Murphy)
What is the case law regarding cumulative conduct?
The Court may have regard to the conduct viewed cumulatively up to the point when the conduct in question stops. The defendant’s conduct may be considered in its entirety. Considering how much remains to be done…is always relevant, though not determinative.
(R v Harpur)
What is the punishment for attempted murder, s173?
Every one who attempts to commit murder is liable to imprisonment for a term not exceeding 14 years.
What is the legislation for counselling or attempting to procure murder?
Every one is liable to imprisonment for a term not exceeding 10 years who incites, counsels, or attempts to procure any person to murder any other person in NZ, when that murder is in fact not committed.
What is the legislation for conspiracy to murder, s175?
Every one is liable to imprisonment for a term not exceeding 10 years who conspires or agrees with any person to murder any other person, whether the murder is to take place in NZ or elsewhere.
What is the legislation for accessory after the fact to murder, s176?
Every one is liable to imprisonment for a term not exceeding 7 years who is an accessory after the fact to murder.
What is the case law regarding accessory after the fact to murder?
For a person to be an accessory the offence must be complete at the time of the criminal involvement. One cannot be convicted of being an accessory after the fact of murder when the actus reas of the alleged criminal conduct was wholly completed before the offence of homicide was completed.
(R v Mane)
What is the key difference between murder and manslaughter?
it depends on the mental element that must be established to support the charge..
What is an example of voluntary manslaughter?
mitigating circumstances, such as a suicide pact, reduce what would otherwise be murder to manslaughter, even though the defendant may have intended to kill or cause GBH.
What is covered by involuntary manslaughter?
covers those types of unlawful killing in which the death is caused by an unlawful act or gross negligence. In such cases there has been no intention to kill or cause GBH.
What is required to be proved for an unlawful act for manslaughter?
1) the defendant must intentionally do an act
2) the act must be unlawful
3) the act must be dangerous
4) the act must cause death.
What is the punishment for manslaughter, s177?
Every one who commits manslaughter is liable to imprisonment for life.
What are included within the elements of accessory after the fact?
- tampers with
- actively suppresses evidence
- in order to enable them to escape arrest or avoid conviction