Homicide

Question 1

What is consent? And case law?

Answer 1

Consent is a person’s conscious and voluntary agreement to something desired or proposed by another.

R v Cox - Consent must be full, voluntary, free and informed, freely and voluntarily given by a person in a position to form a rational judgment.

Question 2

R v Tarei

Answer 2

The withdrawal of any form of life support system is not ‘treatment’ under s.166 Crimes Act 1961. To withdraw life support does not cause death but removes the possibility of extending the person’s life through artificial means.

Question 3

What is the penalty for attempted murder?

Answer 3

Under s.173 Crimes Act 1961

Every one who attempts to commit murder is liable to imprisonment for a term not exceeding 14 years.

Question 4

Section 181 Crimes Act 1961

Answer 4

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 it’s birth, whether the child died before, or during, or after birth.

Question 5

In which Court does a child or youth facing a charge of murder or manslaughter appear?

Answer 5

Both are dealt with via the youth justice provisions of the Oranga Tamariki Act 1989. The charges will be laid in the district court with first appearance at youth court with files then transferred to the High Court for the remainder of the proceeding.

Question 6

A question of law relating to a disease of the mind is answered by whom?

Answer 6

The judge

Question 7

The accused’s state of mind at the time of the offence is a question decided by whom?

Answer 7

The jury

Question 8

What is the burden of proof for insanity?

Answer 8

The burden of proof lies with the defence and it must be shown on the balance of probabilities to the satisfaction of the jury.

Question 9

S.153 Crimes Act 1961, what is the relevant age of the person who is employed?

Answer 9

Under the age of 16 years.

Question 10

In a charge of infanticide, who decides in the mother’s state of mind?

Answer 10

The jury

Question 11

Pursuant to s.22(3)(a) if the Criminal Disclosure Act 2008, the notice under subsection (1) must include ….

Answer 11

The name and address of the witness, or if that is not known to the defendant, any matter known by the defendant that might be of material assistance in finding that witness.

Question 12

Before a conviction for manslaughter where s.150A(1) is referenced, what must the prosecution prove?

Answer 12

A very high degree of negligence or gross negligence.

Question 13

Proximity is a question of law decided by whom?

Answer 13

The judge

Question 14

Written notice if an alibi is to be given by the defendant when?

Answer 14

Within 10 working days after the defendant is given notice under s.20 of the Criminal Disclosure Act 2008

Question 15

As a general rule, most offences within the Crimes Act 1961 require an intent (mens rea). Outline a defence that would therefore be generally available?

Answer 15

The defence of intoxication will be available to the defence to establish that the defendant did not have the required intent to carry out the offence.

Question 16

Provide an overview of the culpability of persons involved in suicide pacts.

Answer 16

Under s.180(1) a person is culpable if they kill another person and attempt to kill themselves but then survive the attempt themselves. They will be guilty of manslaughter (not murder) and liable as such.

Under s.180(2) where both person’s do an act in attempt to take their own lives and one is successful and one lives, the person who survived is a party to death under a suicide pact and is liable to imprisonment for a term not exceeding 5 years.

Question 17

Section 25 Crimes Act 1961

Answer 17

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

Question 18

Outline M’Naghten’s Rules

Answer 18

The M’Naghten’s rukes (or test) is frequently used to establish whether or not a defendant is insane. It is based on the person’s ability to think rationally so that 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 19

List the statutory legal duties in respect of the Crimes Act 1961

Answer 19

Legal duty refer to those duties imposed by statute or common law.

The Crimes Act 1961 defines duties to:

• provide the necessaries and protect from injury (s.151)
• provide necessaries and protect from injury to your charges when you are a parent or guardian (s.152)
• provide necessaries as an employer (s.153)
• use reasonable knowledge and skills when performing dangerous acts, such as surgery (s.155)
• take precautions when in charge of dangerous things, such as machinery (s.156)
• avoid omissions that will endanger life (s.157)

Question 20

List the difference between counselling or attempting to procure murder (s.174) and conspiracy to murder (s.175)

Answer 20

Counselling or procuring a person to murder requires that the offence is to be committed within NZ whereas conspiracy to murder, the murder can take place within NZ or elsewhere.

Counselling or attempting to procure murder only applies if the murder is not in fact committed, whereas conspiracy to murder applies regardless of whether murder is committed or not.

Question 21

Detail the provisions of Section 159(1) & (2) Crimes Act 1961

Answer 21

(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, or whether it has an independent circulation or not, or 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 22

Section 158 Crimes Act 1961 - define homicide

Answer 22

Homcidie is the killing of a human being by another, directly or indirectly, by any means whatsoever

Question 23

Section 178 Crimes Act 1961 - Infanticide

Answer 23

(1) 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 3 years.

Question 24

In general noone is criminally responsible for the killing of another by any influence of the mind. What are the two exceptions to this rule?

Answer 24

• Wilfully frightening a child under 16 years of age.

* Wilfully frightening a sick person (mentally or physically)

Question 25

Section 163 Crimes Act 1961 - Killing by influence on the mind

Answer 25

Noone 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 the killing of another by any disorder or disease arising from such influence, except by wilfully frightening a child as aforesaid or a sick person.

Question 26

What is meant by the term “justified”? Provide two examples

Answer 26

S.2 Crimes Act 1961 provides that when an act is justified, the perpetrator is exempt from both criminal and civil liability.

Examples include:
• homicide committed in self-defence (s.48)
• homicide committed in preventing suicide or commission of an offence which would be likely to cause immediate and serious injury to the person or property of any one (s.41)

Question 27

Ingredients for Accessory After The Fact of Murder?

Answer 27

Knowing any person to have been party to murder, receives, comforts or assists that person, or tampers with or actively suppresses any evidence against that person in order to enable him to escape after arrest or to avoid conviction.

Question 28

Define the term Suicide Pact under s.180(3) Crimes Act 1961

Answer 28

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 29

How do NZ Courts deal with a defence of Automatism arising out of taking alcohol and/or drugs?

Answer 29

In NZ, 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 30

List the ingredients of Section 48 Crimes Act 1961

Answer 30

Everyone is justified in using, in the defence of himself or another, such force as, in the circumstances as he believes them to be, it is reasonable to use.

Question 31

What was held in R v Ranger?

Answer 31

If the accused really did think that the lives if 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 32

Provide the guidelines in respect of consent regarding assault

Answer 32

1. Everyone has a right to consent to a surgical operation.
2. Everyone has a right to consent to the infliction of force not involving bodily harm.
3. No one has a right to consent to their death or injury likely to cause death.
4. No one has a right to consent to bodily harm in such a manner as to amount to a breach of the peace, or in a prize fight or other exhibition calculated to collect together disorderly persons.
5. It is uncertain to what extent any person has a right to consent to their being put in danger of death or bodily harm by the act of another.

Question 33

In common law, allegations of culpable homicide have been supported in cases where the offenders have caused death by particular circumstances. Give examples of these:

Answer 33

• 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 oncoming car.
• Conducting an illegal abortion where the mother dies.

Question 34

In relation to Section 160(2)(d) Crimes Act 1961, give examples of culpable homicide which has been caused by the victim’s actions, prompted by threats or fear of violence.

Answer 34

1. Jumps or falls out of a window and dies because they think they are going to be assaulted.
2. Jumps into a river to escape an attack and drowns.
3. Having been assaulted and fearing for their life, jumps from a train and is killed.

Question 35

To establish proof of death, in relation to homicide, you must prove three key elements, they are:

Answer 35

• Death occurred.
• Deceased is idenfitied as the person who has been killed.
• The killing is culpable.

Death can be proved by direct and/or circumstantial evidence.

Question 36

Section 168(1)(a) Crimes Act 1961 refers to “grievous bodily injury” what does this mean and give an example of such injury.

Answer 36

Grievous bodily injury means harm that is really serious, such as an injury to a vital organ.
To come within subsection (1)(c), the stopping of the victim’s breath must be done wilfully.

Question 37

Simester and Brookbanks suggest the following questions should be asked to determine the point an act of mere preparation may become an attempt. What are the two questions?

Answer 37

1) Has the offender done anything more than getting himself into a position from which he could embark on an actual attempt?
2) Has the offender actually commenced execution? I.e. has he taken a step in the actual crime itself?

Question 38

Give an example of when murder might be reduced to manslaughter even though the accused intended to kill or cause grievous bodily harm.

Answer 38

Mitigating circumstances, such as a suicide pact, reduce what would otherwise be murder to manslaughter even though the accused may have intended to kill or cause grievous bodily harm.

Question 39

What is involuntary manslaughter?

Answer 39

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 to cause grievous bodily harm.

Question 40

Define alibi

Answer 40

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

Question 41

What must the defendant include in a notice of alibi?

Answer 41

The name and address of the witness or if that is not known to the defendant when the notice is given, any matter that is known by the defendant that might be of material assistance in finding that witness.

Question 42

Define “Attempts” under Section 72(1) Crimes Act 1961

Answer 42

Everyone 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.

Question 43

Outline culpable homicide under Section 160(1)&(2) Crimes Act 1961

Answer 43

(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 44

Define “wilfully frightening”

Answer 44

Is regarded as “intending to frighten or at least be reckless as to this”

Question 45

What are the legal duties of a parent/guardian under Section 152 Crimes Act 1961?

Answer 45

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 46

What are the ingredients of Section 154 Crimes Act 1961?

Answer 46

Every one is liable to imprisonment to a term not exceeding 7 years who unlawfully abandons or exposes any child under the age of 6 years

Question 47

Outline the culpability for children under 10 and children 10-13 years?

Answer 47

• Under 10 - a child under 10 has an absolute defence to any charge brought against them. Nevertheless even though the child cannot be convicted, you still have to establish whether or not they are guilty.
• 10-13 years - For children aged 10-13 years inclusive, it must be shown that the child knew their act was wrong or contrary to law. If this knowledge cannot be shown, the child cannot be criminally liable for the offence.

Question 48

Insanity legislation under Section 23(2) Crimes Act 1961

Answer 48

Section 23(2) Crimes Act 1961

No person shall be convicted of an offence by reason of an act done or omitted by him when labouring under natural imbecility or disease of the mind to such an extent as to render him 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 49

What is a strict liability offence?

Answer 49

Any offence that does not require an intent. The only way a defendant can escape a strict liability offence is to prove a total absence of fault. Example, driving with excess breath alcohol

Question 50

What 3 points must be satisfied before a defence of compulsion can be used?

Answer 50

A person is protected from criminal responsibility if they have been compelled to commit the offence by someone at the scene who had threatened them that they would otherwise be killed or caused grievous bodily harm. The accused must have genuinely believed the threats and must not be party to any association or conspiracy involved in the carrying out the threats.

Question 51

Explain entrapment

Answer 51

Entrapment occurs when an agent of an enforcement body deliberately causes a person to commit an offence, so that person can be prosecuted.

Question 52

Give two circumstances where culpable homicide is murder

Answer 52

S.167 Crimes Act 1961

(1) Culpable homicide is murder in 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 any person, though he may have desired that his object should be effected without hurting anyone.

Question 53

Define “legal duty”

Answer 53

Legal duty refers to those duties imposed by statutes and common law.

Question 54

What is the required state of mind for s.167(b) Crimes Act 1961?

Answer 54

To meet this section, you must establish:

• an intention 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 55

You cannot use the defence of consent to assault in the following cases:

Answer 55

• Aiding suicide
• Criminal actions
• Injury likely to cause death
• Bodily harm likely to cause a breach of the peace
• Indecency offences
• The placing of someone in a situation where they are at risk of death or bodily harm

Question 56

A hearsay statement is admissible in any proceeding if -

Answer 56

S.18 Evidence Act 2006

(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 57

Define “Automatism”

Answer 57

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

Question 58

What is “Sane” and “Insane” Automatism?

Answer 58

Automatism may be quite different and distinct from insanity, although it may be due to a disease of the mind. Hence it is necessary to distinguish between:

Sane Automatism - The result of sonambulism (sleepwalking), a blow to the head or the effect of drugs.

Insane Automatism - The result of a mental disease

Question 59

What is the courts view on entrapment?

Answer 59

In New Zealand the courts have rejected entrapment as a defence per se preferring instead to rely on the discretion if the trial judge to exclude evidence that would operate unfairly against the accused.

Question 60

Outline the subjective and objective tests relating to s.48 Crimes Act 1961

Answer 60

Once the accused has decided that use of force was required (a subjective view of the circumstances as the accused believed them), Section 48 then introduces a test of reasonableness which involves an objective view as to the degree and manner of the force used.

Question 61

What is the procedure when alibi witnesses are interviewed?

Answer 61

The O/C case should not interview an alibi witness unless the prosecutor requests them to do so. If an interview is requested, follow this procedure:

• Advise the defence counsel of the proposed interview and give them a reasonable opportunity to be present.
• If the accused is not represented, endeavour to ensure the witness is interviewed in the presence of some independent person not being a member of Police.
• 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 s.16(1)(o).

Question 62

If the defendant intend to call an expert witness during proceedings, what must they disclose to the Prosecution?

Answer 62

• Any brief of evidence to be given or any report provided by that witness, or
• If that brief or any such report is not available, a summary of the evidence to be given and the conclusions of any report to be provided.
• This information must be disclosed at least 14 days before the date fixed for the defendant’s hearing or trial, or within any further timeframe that the court may allow (s23(1)).

Question 63

Degree of force under self defence

Answer 63

The degree of force permitted is tested initially under the following subjective criteria:

• What are the circumstances that the defendant genuinely believes exist (whether or not it is a mistaken belief)
• Do you accept that the defendant genuinely believes those facts?
• Is the force used reasonable in the circumstances believed to exist?

Question 64

Section 168 Crimes Act 1961 - Murder Further Defined

Answer 64

(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 purposes 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 65

Definition of Insanity

Answer 65

Insanity is a question of law for the judge to decide. Classification by medical witnesses is not final and whether the particular condition is a disease of the mind is a question of law for the judge.

Question 66

General rules relating to intoxication

Answer 66

In the past intoxication was considered to be no defence to a criminal charge and deemed an aggravating factor rather than a mitigating one. The general rule has been that intoxication may be a defence to the commission of an offence:

• Where the intoxication causes a disease of the mind so as to bring s.23 (Insanity) Crimes Act 1961 in to effect
• If intent is required as an essential element of the offence and the drunkenness is such that the defence can plead a lack of intent to commit the offence.
• Where the intoxication causes a state of Automatism.

Question 67

What people are considered unable to give consent?

Answer 67

• a child
• unable to rationally understand the implications of their defence
• subject to force, threats of force or fraud

Question 68

What actions do not allow for a defence of consent?

Answer 68

• aiding suicide
• criminal actions
• injury likely to cause death
• bodily harm likely to cause a breach of the peace
• indecency offences
• the placing of someone in a situation where they are at risk of death or bodily harm.

Question 69

What is section 154 Crimes Act 1961?

Answer 69

Everyone 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 70

Reasonable assurance under section 16(1) Crimes Act 1961

Answer 70

Circumstances to consider:

• the nature of the statement
• the content of the statement
• the circumstances relating to the making of the statement
• circumstances relating to the veracity of the person making the statement
• circumstances relating to the accuracy of the observation of the person.