Flashcards in Homicide 013 Deck (124)
List the three main types of culpable homicide.
Murder, manslaughter, infanticide
What are the critical factors to consider when deciding whether a charge should be murder or manslaughter?
Whether the offender intended to:
- kill the person or
- cause bodily injury that the offender knew was likely to cause death
s158, CA 1961 (Must Know)
s158 Homicide defined
Homicide is the killing of a human being by another, directly or indirectly, by any means whatsoever.
Can an organisation be convicted of murder or manslaughter?
An organisation can be convicted as a party to manslaughter (s66(1)).
For murder, an organisation cannot be convicted either as a principal offender or a party because the offence carries a mandatory life sentence.
Murray Wright Ltd (case law)
Because the killing must be done by a human being, an organisation (such as a hospital or food company) cannot be convicted as a principal offender.
When does a child become a human being according to s159(1), CA 1961? (Must Know)
159 Killing of a child
(1) A child becomes a human being within the meaning of this Act when it has completely proceeded in a living state from the body of its mother, whether it has breathed or not, whether it has an independent circulation or not, and whether the navel string is severed or not.
s160(2), CA 1961 (Must Know)
s160 Culpable homicide
(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 fear of violence or by deception to do an act which causes his death or
(e) By wilfully frightening a child under the age of 16 years or a sick person.
R v Myatt
Before a breach of any Act, regulation or bylaw would be an unlawful act under s160 for the purposes of culpable homicide it must be an act likely to do harm to the deceased or to some class of persons of whom he was one.
Explain the test contained in s150A(2), CA 1961. (Nice to know)
The omission or unlawful act is a major departure from the standard of care expected of a reasonable person to whom that legal duty applies or who performs that unlawful act.
What are the four questions posed in R v Tomars relating to s160(2)(d)? (Must Know)
1. Was the deceased threatened by, in fear of or deceived by the defendant?
2. If they were, did such threats, fear or deception cause the deceased to do the act that caused their death?
3. Was the act a natural consequence of the actions of the defendant, in the sense that a reasonable and responsible person in the defendant's position at the time could reasonably have foreseen the consequences?
4. Did these foreseeable actions of the victim contribute in a significant way to his death?
In the case of a death from lawful games or contests in what situation would a contestant possibly be found guilty of manslaughter?
If the contestant causes the death of another by an act that is likely to cause serious injury.
What must be done to establish/prove the death?
- death occurred
- deceased is identified as the person who has been killed
- the killing is culpable
R v Horry (where a body is not located)
Death should be provable by such circumstances as render it morally certain and leave no ground for reasonable doubt - that the circumstantial evidence should be so cogent and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for.
s167, CA 1961 (Must Know)
167 Murder defined
Culpable homicide is murder in each of the following cases:
(a) If the offender means to cause the death of the person killed:
(b) If the offender means to cause to the person killed any bodily injury that is known to the offender to be likely to cause death, and is reckless whether death ensues or not:
(c) If the offender means to cause death, or, being so reckless as aforesaid, means to cause such bodily injury as aforesaid to one person, and by accident or mistake kills another person, though he does not mean to hurt the person killed:
(d) If the offender for any unlawful object does an act that he knows to be likely to cause death, and thereby kills the person, though he may have desired that his object should be effected without hurting anyone.
What are the two types of intention in an offence?
An intention to commit the act and an intention to get a specific result.
If you are charging an offender with murder under s167, what must you show in relation to the offender's intent to cause death?
- intended to cause death or
- knew that death was likely to ensue, or
- was reckless that death would ensue
R v Harney
Recklessness means the conscious and deliberate taking of an unjustified risk. In New Zealand it involves proof that the consequences complained of could well happen, together with an intention to continue the course of conduct regardless of the risk.
What needs to be established to show that the defendant's state of mind meets the provisions of s167(b)? (Must Know)
That the defendant:
- intended to cause bodily injury to the deceased
- knew the injury was likely to cause death
- was reckless as to whether death ensued or not
R v Piri
Recklessness (here) 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 Desmond (Must Know)
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.
s66(2), CA 1961 (Nice to know)
S66 Parties to offences
(2) Where two or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose.
s66(1), CA 1961 (Nice to know)
(1) Every one is a party to and guilty of an offence who—
(a) actually commits the offence; or
(b) does or omits an act for the purpose of aiding any person to commit the offence; or
(c) abets any person in the commission of the offence; or
(d) incites, counsels, or procures any person to commit the offence.
When charging someone as a party to murder under s66(1) or (2), what must be shown in regards to the secondary party's knowledge? (nice to know)
It is not necessary to show that they knew the death was a probable consequence of carrying out the primary purpose. It must be shown that they knew it was a probable consequence that the principal might do an act that would, if death ensued, bring their conduct within the terms of s168.
S72 CA 1961 (Must Know)
(1)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.
(2)The question whether an act done or omitted with intent to commit an offence is or is not only preparation for the commission of that offence, and too remote to constitute an attempt to commit it, is a question of law.
(3)An act done or omitted with intent to commit an offence may constitute an attempt if it is immediately or proximately connected with the intended offence, whether or not there was any act unequivocally showing the intent to commit that offence.
R v Murphy
When proving an attempt to commit an offence it must be shown that the accused's intention 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.
Explain the term 'sufficiently proximate'.
The defendant must have started to commit the full offence and have gone beyond the phase of mere preparation.
R v Harpur
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.
What are the two questions suggested by Simester and Brookbanks as a test for proximity? (Test for proximity) (Must Know)
- Has the offender done anything more than getting himself into a position from which he could embark on an actual attempt?
- Has the offender actually commenced execution; that is to say, has he taken a step in the actual offence itself?
What is the punishment for attempted murder? (Must Know)
s173 - Everyone who attempts to commit murder is liable to imprisonment for a term not exceeding 14 years