Homicide 013 COPY

Question 1

What are the critical factors to consider when deciding whether a charge should be murder or manslaughter? ( must know) 2 consideration.

Kill
Cause

Answer 1

Whether the offender intended to:
- kill the person or
- cause bodily injury that the offender knew was likely to cause death

Question 2

Homicide s158, CA 1961 (Must Know)

Answer 2

s158 Homicide defined
Homicide is the killing of a human being by another, directly or indirectly, by any means whatsoever.

Question 3

Murray Wright Ltd (case law)

Answer 3

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.

Question 4

When does a child become a human being according to s159(1)-(2) CA 1961? (Must Know)

Answer 4

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.

2 The killing of such child is homicide if it dies in consequence of injuries received before, during, or after birth.

Question 5

s160(2) Culpable homicide, CA 1961 (Must Know)

Answer 5

(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.

Question 6

What are the four questions posed in R v Tomars relating to s160(2)(d)? (Must Know)

Answer 6

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?

Question 7

Murder Definition - s167, CA 1961 (Must Know)

Answer 7

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.

Question 8

What needs to be established to show that the defendant’s state of mind meets the provisions of s167(b)? Murder defined (Must Know)

Answer 8

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

Question 9

R v Desmond (Must Know)

Answer 9

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.

Question 10

Attempts - S72 CA 1961 (Must Know)

Answer 10

S72 Attempts
(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.

Question 11

What are the two questions suggested by Simester and Brookbanks as a test for proximity? (Test for proximity) (Must Know)

Answer 11

• Has the offender done anything more than getting himself into a position from which he could embark on an actual attempt?
  OR
• Has the offender actually commenced execution; that is to say, has he taken a step in the actual offence itself?

Question 12

What is the punishment for attempted murder? S173 (Must Know)

Answer 12

s173 - Everyone who attempts to commit murder is liable to imprisonment for a term not exceeding 14 years

Question 13

Counselling or attempting to procure murder- s174, CA 1961 10y, (Must Know)

Answer 13

174 Counselling or attempting to procure murder
Everyone 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 New Zealand, when that murder is not in fact committed.

Question 14

What would be the appropriate charge for someone who incites, counsels or procures where murder is attempted but not committed. Include act and section.

Answer 14

Party to Attempt to Murder
s173 and 66(1)(d), CA 1961

Question 15

175 Conspiracy to murder- 10y (Must Know)

Answer 15

175 Conspiracy to murder
(1) Everyone 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 New Zealand or elsewhere.

Question 16

Identify and explain the two different types of manslaughter in common law. (Must Know)

Answer 16

Voluntary manslaughter - mitigating circumstances (eg. suicide pact) reduce what would otherwise be murder to manslaughter even though defendant may have had intent to kill or cause GBH.

Involuntary manslaughter - Death is caused by an unlawful act or gross negligence. No intent to kill or cause GBH.

Question 17

When you come across a killing that is a result of a sudden fight, what needs to be considered? (Must Know)
S 48 or men’s rea

Answer 17

Whether there was
- self-defence
- the requisite mens rea for a murder charge

Question 18

When there is a killing in a sudden fight, outline the different ways in which the killing could be viewed. (Must Know)
Arisen out of 48
fight negates.

Answer 18

• Homicide could be justified as having arisen out of self-defence (s48). Proper verdict would be an acquittal.
• If the fact there was a fight negates that the defendant had the required mens rea to bring a charge of murder within s167 the proper verdict is manslaughter.

Question 19

What is the four point test outlined in Newbury and Jones for proving an unlawful act for manslaughter? (Must Know)

Answer 19

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

Question 20

infanticide s178(1), CA 1961 (Must Know)

Answer 20

Where a woman causes the death of any child of hers under the age of 10 years in a manner that amounts to culpable homicide, and where at the time of the offence the balance of her mind was disturbed,
by reason of her not having fully recovered from the effect of giving birth to that or any other child, or
by reason of the effect of lactation, or
by reason of any disorder consequent upon childbirth or lactation,
to such an extent that she should not be held fully responsible, she is guilty of infanticide and not of murder or manslaughter, and is liable to imprisonment for a term not exceeding three years.

Question 21

In charges of infanticide, who decides on the mother’s state of mind? (Must Know)

Answer 21

The jury

Question 22

154 Abandoning child under 6 CA 1961 7y, (Must Know)

Answer 22

Every one is liable to imprisonment for a term not exceeding 7 years who

unlawfully abandons or exposes any child under the age of 6 years.

Question 23

Killing by influence on the mind s163, CA 1961 (Must Know)

Answer 23

Killing by influence on the mind

No one is criminally responsible for the killing of another by any influence on the mind alone,

except by wilfully frightening a child under 16 years or

a sick person, nor for the killing of another by any disorder or disease arising from such influence, except by wilfully frightening any such child as aforesaid or a sick person.

Question 24

Suicide pact 180(1) and (2), CA 1961 (Must Know)

Answer 24

180 Suicide pact

(1) Every one who in
pursuance of a suicide pact kills any other person is guilty of manslaughter and not of murder,
and is liable accordingly.

(2) Where 2 or more persons enter into a suicide pact, and in pursuance of it 1 or more of them kills himself or herself, any survivor is guilty of being a party to a death under a suicide pact contrary to this subsection

and is liable to imprisonment for a term not exceeding 5 years; but he or she shall not be convicted of an offence against section 179 ( aiding or abetting)

Question 25

Concealing dead body of child s181, CA 1961 - 2y (Must Know)

Answer 25

181 Concealing dead body of child

Every one is liable to imprisonment for a term not exceeding 2 years who,

Disposes of the dead body of any child in any manner
with intent to conceal the fact of its birth,
whether the child died before, or during, or after birth

Question 26

Define the term ‘justified’. (Must Know)

Answer 26

The person is not guilty of an offence and is not liable civilly.

( person is NG of a criminal offence or civilly )

Question 27

Outline the defences for children including section. (Must Know)

Answer 27

Short version - same shit

( S21-1 a child under 10 cannot be convicted of an offence
S22-1 a child aged 10-14y cannot be convicted of an offence unless they knew that their action or omission was was wrong or contrary to the law. )

21 Children under 10
(1) No person shall be convicted of an offence by reason of any act done or omitted by him or her when under the age of 10 years.

22 Children between 10 and 14
(1) No person shall be convicted of an offence by reason of any act done or omitted by him or her when of the age of 10 but under the age of 14 years, unless he or she knew either that the act or omission was wrong or that it was contrary to law.

Question 28

Explain the only 3 situations in which proceedings may lawfully be commenced under the Criminal Procedure Act 2011 against a child alleged to have committed an offence in s272(1), CYPF Act 1989.

page 67-68

Answer 28

(a) where the child is of or over the age of 10 years, and the offence is murder or manslaughter:

(b) where the child is aged 12 or 13 years, and the offence is one (other than murder or manslaughter) for which the maximum penalty available is or includes imprisonment for life or for at least 14 years:

(c) where the child is aged 12 or 13 years and is a previous offender under subsection (1A) or (1B), and the offence is one (other than murder or manslaughter) for which the maximum penalty available is or includes imprisonment for at least 10 years but less than 14 years.

Question 29

Burden of proof, for children aged 10-13 years what must be shown? (Must Know)

Answer 29

it must be shown that the child knew their act was wrong or contrary to law.

Question 30

Insanity s23(2), CA 1961 (Must Know)

Answer 30

23 Insanity

(2) No person shall be convicted of an offence by reason of an act done or omitted by him or her when labouring under natural imbecility or disease of the mind to such an extent as to render him or her incapable—
(a) of understanding the nature and quality of the act or omission; or
(b) of knowing that the act or omission was morally wrong, having regard to the commonly accepted standards of right and wrong.

Question 31

Outline M’Naghten’s rules. (Must Know)

Answer 31

If a person is insane they were acting under such a defect of reason from a disease of the mind that they did not know:
- the nature and quality of their actions OR
- that what they were doing was wrong.

Question 32

Who decides whether a particular condition is a disease of the mind?

Answer 32

Judge.

Question 33

Define automatism. (Must Know)

Answer 33

A state of total blackout during which a person is not conscious of their actions and not in control of them.

Question 34

Definition of automatism in R v Cottle (Must Know)

Answer 34

Doing something without knowledge and memory of it, afterwards of having done it -

a temporary eclipse of consciousness that nevertheless leaves the person so affected able to exercise bodily movements.

Question 35

Describe the two types of automatism. (Must Know)

Answer 35

Sane automatism - The result of somnambulism (sleepwalking), a blow to the head or the effects of drugs.

Insane automatism - The result of a mental disease.

Question 36

In what situations might intoxication be a defence? (Must Know)

Answer 36

• Where the intoxication causes a disease of the mind so as to bring s23 into effect
• If intent is required as an essential element and the drunkenness is such that the defence can plead a lack of intent
• Where the intoxication causes a state of automatism (complete acquittal)

Question 37

Ignorance of law s25, CA 1961 (Must Know)

Answer 37

25 Ignorance of law

The fact that an offender is ignorant of the law is not an excuse for any offence committed by him.

Question 38

Explain the element of immediacy in s24- compulsion . (Not verbatim)

Answer 38

The threats must be operating on the person’s mind at the time of the act and be so grave that they might well have caused a reasonable person placed in the same situation to act in the same way.

Question 39

Outline R v Joyce re compulsion and the findings. (Must Know)

Answer 39

Three offenders, Pihema, Munro and Joyce, went to Auckland service station. Pihema, with firearm, entered alone and demanded money. There was a struggle and attendant shot. All three charged with agg robbery. One defence from Joyce was compulsion. Pihema pointed rifle at him and threatened to shoot if he didn’t cooperate. Pihema inside service station while Joyce outside. Joyce therefore not threatened with immedate death or GBH by person present.

R v Joyce
The Court of Appeal decided that the compulsion must be made by a person who is present when the offence is committed.

Question 40

Explain the New Zealand courts’ attitude towards the defence of entrapment. (Must Know)

Answer 40

The courts have rejected entrapment as a defence per se, preferring instead to rely on the discretion of the trial judge to exclude evidence that would operate unfairly against the defendant.

Question 41

Explain the s48 tests. (Must Know)

Answer 41

Subjective - the defendant’s decision that force is required based on his subjective view of the circumstances
Objective - the reasonable degree and manner of force used

Question 42

Define the term ‘alibi’. (Must Know)

Answer 42

The plea in a criminal charge of having been elsewhere at the material time: the fact of being elsewhere.

Question 43

When a defendant intends to use an alibi witness how many days do they have to written notice to the prosecutor after notice is given under S20? (Must Know).

Answer 43

Must be given within 10 working days:
after the defendant is given notice under section 20

Question 44

If the defendant intends to call an expert witness, what must they disclose to the prosecutor and in what time frame? (Must Know).

Answer 44

(
Any brief of EV or report or a summary of EV, must disclosed within 10 days before the trial date.)

Any brief of evidence to be given or any report provided by that witness OR

if that brief or any such report not available, a summary of evidence to be given and conclusion of any report provided.

Must be disclosed at least 10 working days before date of trial or any further time allowed by court.

Question 45

A hearsay statement is only admissible in a proceeding if certain conditions are met. What are those conditions and where are they found? (Must Know)

Answer 45

s18(1), Evidence Act 2006
(1) A hearsay statement is admissible in any proceeding if
(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable, and
(b) either
(i) the maker of the statement is unavailable as a witness or
(ii) the Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness.

Question 46

Crimes Act definition of unlawful act. (Must Know)

Answer 46

A breach of any Act, regulation, rule or bylaw (s2, CA 1961)

Question 47

Explain s160(2)(b) (Must Know)

Answer 47

This covers cases where nothing is done when there is a legal duty to act, or sometimes positive conduct followed by failure to discharge a legal duty. If death results it’s manslaughter (if sufficient fault) or murder (if requisite mens rea).

Question 48

What were the findings in R v Ranger (not verbatim). (Must Know).

Answer 48

If this defendant did really think that the lives of herself and her son were in peril because of the deceased, enraged after the struggle, might attempt to shoot them with a rifle near at hand, then it would be going too far, we think, to say that the jury could not entertain a reasonable doubt as to whether a pre-emptive strike with a knife would be reasonable force in all the circumstances.

Question 49

Define Unlawful Act (Must Know)

Answer 49

Means a breach of any Act, regulation, rule, or bylaw

Question 50

List 6 examples of culpable homicide where the offender has caused death (Must Know)

Answer 50

•committing arson
•giving a child an excessive amount of alcohol to drink
•placing hot cinders and straw on a drunk person to frighten them
•supplying heroin to a person who subsequently dies from an overdose
•throwing a large piece of concrete from a motorway overbridge into the path of an approaching car
•conducting an illegal abortion where the mother dies.

Question 51

Duties imposed by statute are mainly common law duties that have been embodied in statute. The Crimes Act 1961 defines those duties, what are they? (6) (Must Know)

Answer 51

•provide the necessaries and protect from injury (s151)
•provide necessaries and protect from injury when you are a parent or guardian (s152)
•provide necessaries as an employer (s153)
•use reasonable knowledge and skill when performing dangerous acts,such as surgery (s155)
•take precautions when in charge of dangerous things, such as machinery(s156)
•avoid omissions that will endanger life (s157).

Question 52

Define Wilfully frightening (Must Know)

Answer 52

“Wilfully frightening” is regarded as “intending to frighten, or at least be reckless as to this”.

Simester and Brookbanks3 suggest “wilfully” would require that the offender intended to frighten, or is at least subjectively reckless as to the risk of that.

Question 53

Is anyone criminally responsible for killing by influence on the mind? (Must Know) s163

Answer 53

No one is criminally responsible for the killing of another by any influence on the mind alone,

except by wilfully frightening a child under the age of 16 years or

a sick person, nor for the killing of another by any disorder or disease arising from such influence,

except by wilfully frightening any such child as aforesaid or a sick person.

Question 54

Can anyone consent to death? (Must Know)

Answer 54

No one has the right to consent to being killed (s63). This means that, if someone is killed, the fact they gave their consent will not affect the criminal responsibility of anyone else involved with the killing.

Question 55

Further definition of murder S168 CA (Must Know)

Answer 55

(1)Culpable homicide is also murder in each of the following cases, whether the offender means or
does not mean death to ensue, or
knows or
does not know that death is likely to ensue:

(a)If he means to cause grievous bodily injury for the purpose of facilitating the commission of any of the offences mentioned in subsection (2) of this section,or facilitating the flight or avoiding the detection of the offender upon the commission or attempted commission thereof, or for the purpose of resisting lawful apprehension in respect of any offence whatsoever, and death ensues from such injury:

(b)If he administers any stupefying or overpowering thing for any of the purposes aforesaid, and death ensues from the effects thereof:

(c)If he by any means wilfully stops the breath of any person for any of the purposes aforesaid, and death ensues from such stopping of breath.

Question 56

Proximity is a question of law (Must Know)

Answer 56

Proximity is a question of law; it is a question that is decided by the judge based on the assumption that the facts of the case are proved.

Question 57

For a conviction of manslaughter under S150A(1) the prosecution must prove what? (Must Know)

Answer 57

the prosecution must prove a “very high degree” of negligence or “gross negligence”.

Question 58

-Duty to provide the necessaries and protect from injuryS151 (1) (Must Know)

Answer 58

Duty to provide the necessaries and protect from injury
(1)Every one who

has actual care or charge of a person who is a vulnerable adult and who is unable to provide himself or herself with necessaries is under a legal duty—
(a)to provide that person with necessaries; and
(b)to take reasonable steps to protect that person from injury

Question 59

Duty of parent or guardian to provide necessaries and protect from injury- S152 (1) (Must Know)

Answer 59

Duty of parent or guardian to provide necessaries and protect from injury
(1)Every one who is
a parent, or is a person in place of a parent, who has actual care or charge of a child under the age of 18 years is under a legal duty—
(a)to provide that child with necessaries; and
(b)to take reasonable steps to protect that child from injury

Question 60

Define suicide pact S180(3) (Must Know)

Answer 60

Suicide pact

means a common agreement between 2 or more persons having for its object the death of all of them, whether or not each is to take his own life; but nothing done by a person who enters into a suicide pact shall be treated as done by him in pursuance of the pact unless it is done while he has the settled intention of dying in pursuance of the pact.

Question 61

What intent is required around disposing of the body in relation to S181? (Must Know)

Answer 61

The requirement that the act of disposal must be done

with the intent of concealing the fact of birth may be satisfied even though the birth was known to some people but not others.

Thus it will be enough that the intent was to conceal the birth from a particular individual.

Question 62

What is the general rule for child offenders? (Must Know)

Answer 62

As a general rule, all child offenders will be referred to the Care and Protection Coordinator until they reach the age of 14 years.

Question 63

What do you do when a child under the age of 10 murders someone? (Must Know)

Answer 63

When offences are being committed by children aged under 10 years and some action is desirable or necessary,

consider having the child and family dealt with as a Care and Protection matter.
Consider the option of arrest if the circumstance permit but no charges laid.
A child aged under 10 years has an absolute defence to any charge brought against them.

Question 64

Disease of the mind question of law? (Must Know)

Answer 64

Whether the particular condition is a disease of the mind is a question of law for the Judge.

Question 65

Definition of Automatism (Must Know)

Answer 65

Automatism can best be described as a state of total blackout, during which a person is not conscious of their actions and not in control of them.

Question 66

How is the court likely to view a defence based on automatism arising from voluntary consumption of alcohol or drugs? (Must Know)

Answer 66

The courts indicate that cogent (convincing) evidence is necessary to support it, and only in very rare cases will it be enough for a person to say that they did not know or cannot remember what happened, or that they had a blackout. Such statements have been called “one of the first refuges of a guilty conscience and a popular excuse”.

Question 67

Is ignorance of the law a defence? (Must Know)

Answer 67

s25 of the Crimes Act 1961 states that the fact that an
offender is ignorant of the law is not an excuse for any offence committed by them.

This ruling applies whether the offender is from this country or from overseas.

Question 68

The O/C case should not interview an alibi witness unless the prosecutor requests them to do so. If an interview is requested, what are the 3 steps? (Must Know)

Answer 68

1. Advise the defence counsel of the proposed interview and give them a reasonable opportunity to be present
2. If the defendant is not represented, endeavour to ensure the witness is interviewed in the presence of some independent person not being a member of the Police.
3. Make a copy of a witness’s signed statement taken at any such interview available to defence counsel through the prosecutor. Any information that reflects on the credibility of the alibi witness can be withheld under s16(1)(o).

Question 69

Culpable Homicide -
Section 160 (1) & (2) Crimes Act (Must Know)

Answer 69

160 Culpable homicide
(1) Homicide may be either culpable or not culpable.
(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.

Question 70

What is the morally wrong test used to determine? (Must Know)

Answer 70

The test is that the defendant knew that their acts were morally wrong
– they do not need to know that they were legally wrong.

Question 71

Can automatism induced by drink or drug be a defence? (Must Know)

Answer 71

The position in New Zealand as to whether someone has become an automaton by ingesting so many drugs or so much alcohol that they are not responsible for their actions,

(Is a defence that is available if the evidence of the defence can clearly raise the issue.)

Question 72

Application in court of self induced automatism from drink or drug? (Must Know)

Answer 72

In New Zealand, the courts are likely to steer a middle course, allowing a defence of automatism arising out of taking alcohol and drugs, to offences of basic intent only. They are likely to disallow the defence where the state of mind is obviously self-induced, the person is blameworthy, and the consequences could have been expected.

Question 73

If a person has some “dutch courage” can automatism be a defence? (Must Know)

Answer 73

If a person formed an intent to commit a crime and then took drink or drugs as part of the method
of committing the crime (gaining Dutch courage) will disqualify a defence of drunkenness or automatism.

Question 74

In regard to ignorance of the law who does the ruling apply to? (Must Know)

Answer 74

This ruling applies whether the offender is from this country or from overseas.

Question 75

Consent R v Cox (Must Know)

Answer 75

Consent must be “full, voluntary, free and informed … freely and voluntarily given by a person in a position to form a rational judgment.”