Homicide Flashcards
(117 cards)
1
Q
Homicide definition
A
Killing of a human being by another (direct/ indirectly) by any means whatsoever.
2
Q
What must a homicide be
+ 2 exceptions
A
Must be capable.
Eg of when not culpable;
1) Murder - org can’t be convicted as a principle/ party because has max penalty of life
2) Manslaughter - org can’t be convicted as principle but can be as party
3
Q
Murray Wright Ltd
Killing case law
A
Killing must be done by a human being, an organisation (eg hospital or food company) cannot be convicted as a principle offender
4
Q
Killing Child
S.159 CA 2961
A
Child becomes “human being” when’s it’s completely proceeded in living state from body of mother (whether breathed, independent circulation, navel string severed)
Killing is homicide if dies in consequences of injuries received before/ during/ after birth
5
Q
Culpable homicide
S.160 CA 1961
A
- Homicide can be culpable or not. No offence if not culpable.
- Homicide is culpable when kill person;
a) by u/l act
b) by omission w/out lawful excuse to not perform/ observe legal duty
c) by both of above
d) causing person by threats/ fear violence/ deception do act causing his death
e) wilfully frightening child under 16 or sick person - Except as provided in s.178 culpable homicide is either murder/ manslaughter
6
Q
Meaning of culpable and what offences are included?
A
Killing is blameworthy. Murder, manslaughter, infanticide.
7
Q
Killing by “unlawful act”
S.160(2)(a) CA1961
A
Unlawful act = breaching any act/ regulation/ rule/ bylaw
8
Q
R v Myatt
Unlawful Act
A
Before any breach of any act/ regulation or bylaw would be an u/l act under s.160 for the purpose of culpable homicide
Must prove u/l act was likely do harm to V or class of persons V was (eg breach electoral law not suffice even though u/l because not act likely harm to V) (conduct must be objectively dangerous, would reasonable person know risk of harm existed).
9
Q
Killing by omission w/out lawful excuse to perform/ observe legal duty
S.160(2)(b) CA1961
A
Prove death wouldn’t have occurred if performed/ observed duty. Omission must’ve been substantial/ operative cause of death.
“Legal duty” - duty imposed by statute/ common law.
10
Q
Killing by “both of above”
S.160 (2) (c) CA1961
A
Applies when u/l act and omission perform legal duty applicable to same act. Eg drive car recklessly and kill is u/l act and omission perform duty take care w a dang thing.
11
Q
Killing by “causing person by threats/ fear violence/ deception do act causing his death”
S.160 (2)(d) CA 1961
A
Prove fear of violence was well founded. Don’t need show V action was only means escape.
12
Q
R v Tomars
Threat, fear of violence and deception
A
- Was V threatened by/ in fear of/ deceived by D?
- Did threats/ fear/ deception cause V to do the act causing death?
- Was act natural consequences of D actions and reasonable person foresee outcome?
- Did foreseeable actions of V contribute in significant way to death?
13
Q
Killing by “wilfully frightening child under 16 or sick person”
S.160 (2)(e) CA1961
A
Wilfully frightening = intending/ recklessly frightens.
Fright doesn’t need to be result of fear/ violence. Must’ve been at least aware of real risk that V is under 16 or is sick.
14
Q
Killing by influence on the mind
A
- no one criminally responsible for killing another by influence on mind alone. OR killing another by any disorder/ disease arising from such influence.
- exception if wilfully frighten child under 16 or sick person.
15
Q
Proof of death - have to prove;
A
- death occurred (can be proved by direct/ circumstantial evidence)
- deceased ID as person who was killed
- killing was culpable
16
Q
R v Horry
No body located
A
Death should be proved rendering it morally certain and leave no grounds for reasonable doubt. Circumstantial evidence should be so compelling to convince jury was murdered.
17
Q
What must be within a year and a day
A
Death
Applies to murder/ manslaughter/ infanticide
- no one criminally responsible for killing another unless dies within a year and a day after cause of death
- time starts from day of last u/l act or omission contributing cause of death
If life support withdrawn good faith doesn’t matter if could’ve lived longer than 1 year on it.
18
Q
Murder
S.167 CA 1961
A
Culpable homicide is murder if;
a) means to cause death of person killed
b) means to cause person killed bodily injury knowing likely cause death and reckless if death ensues
c) means to cause death/ being reckless means to cause bodily injury to one person but by accident/ mistake kills another
d) for unlawful object does act knows likely to cause death and kills any person. Even though may have desired object effected w/out hurting anyone.
19
Q
Concealment of a child’s body
S.181 CA 1961
A
-Liable 2 years
- if dispose of body (child of recent birth)
- in any manner with intent to conceal its birth whether it died before/ during/ after
20
Q
What must they show otherwise it’s manslaughter
A
Intended to cause death or knew death likely to ensue or reckless death would ensue
21
Q
R v Desmond
Killing in pursuit of an u/l object
A
Not not 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.
22
Q
Infancy
S.21 CA 1961
A
Not convicted of offence because act done/ omitted when under 10. Have absolute defence but still have to establish if guilty
23
Q
Justified meaning
A
Person isn’t guilty of offence and not liable civilly.
24
Q
Protected from criminal responsibility
A
Not guilty of offence but civil liability may still arise
25
General rule about justification
S.20 CA 1961
All common law defences retained as long as not inconsistent with CA or other enactments.
26
Hearsay Statements
S.18(1) EA 2005
Hearsay statements admissible if:
Circumstances relating statement provide reasonable assurance is reliable
AND/EITHER
- maker of stx unavailable as witness OR
- judge considers undue expense/ delay caused if maker required as witness
27
S.16(1) EA 2016
To be admissible consider
Must be satisfied content/ person who made it is reliable
Consider:
- nature and contents
- circumstances relating to making stx
- veracity
- accuracy of obs
28
Suicide Pact
S.180 CA 1961
- suicide pact and kills person guilty of manslaughter not murder
- 2+ people enter suicide pact and 1+ dies. The survivor guilty of being party to and liable 5 years but won’t be convicted of aiding and abetting suicide.
- suicide pact is a common agreement between 2+ people with object being death of all whether or not each is to take own life
29
Aiding and abetting suicide
S.179 CA 1961
Liable 14 years
Incites/ counsels/ or procures any person to commit suicide if that person commits or attempts to in consequence thereof or
Aids/ abets any person in commission of suicide
30
R v Blaue
Preventable death
V stabbed, refused transfusion because of religion. Argued refusal to have transfusion was unreasonable and broke chain causation. Held if use violence take victim as find them.
Those who use violence must take their victims as they find them.
31
Acceleration of death
S.164 CA 1961
Act/ omission causes death = kills that person even though effect of bodily injury caused was to hasten death while were labouring under disease/ disorder arising from other cause.
32
Causing death that might have been prevented
S.165 CA 1961
Act/ omission causes death = kills person although death might’ve been prevented by resorting to proper means.
33
Causing injury the treatment of which causes death
S.166 CA 1961
Causes bodily injury that in itself a dangerous nature from which death results = kills person although immediate cause of death be treatment (proper/ improper) applied in good faith.
34
Murder
S.168 CA 1961
Culpable homicide is murder whether means for death ensue or knows likely ensue
- means to cause grievous bodily injury for purpose facilitating commission of any offences below:
- facilitating flight/ avoiding detection upon commission/ attempted comm
- resist lawful apprehension and death ensues from injury
- administers/ stupefying/ overpowering thing for purpose above and death ensues
- wilfully stops breath of any person for purpose above and death ensues
35
What isn’t covered under S.166 CA1961
Withdrawing life support isn’t treatment. To withdraw life support removes the possibility of extending the persons life through artificial means.
36
Duty to avoid omissions dangerous to life
S.157 CA1961
Everyone who undertakes do any act the omission to do which is/ may be dangerous to life under legal duty do act.
Criminally responsible for consequences omitting without lawful excuse to discharge duty
37
An injury must remain a substantial cause of death (jury decides)
Novus acus interviens= intervening act breaking chain of causation so not guilty.
38
Duty of persons in charge of dangerous things
S.156 CA1961
Has in his charge/ control anything (animate/ inanimate) or erects/ makes/ operates/ maintains anything whatever which in absence precaution/ care may endanger human life under legal duty take reasonable precautions against and use reasonable care to avoid such danger.
Criminally responsible for consequences omitting without lawful excuse discharge duty
Anything whatever means:
Motor vehicles, trains, animals, ships.
39
Murder penalty
=life imprisonment subject to section 102 sentencing act 2002
(S.102 = must be life sentenced unless given circumstances of offence/ of D life manifestly unjustified. Must give written reasons if not imposing life)
40
Intent
Intent to commit the act (must be deliberate not accidental or involuntary)
To get a specific result (aim/object/ purpose)
41
Recklessness
2 Tests
Subjective= aware of the risk and proceeded regardless
Objective= what would a reasonable person think
42
R v Piri
Recklessness
Degree of risk of death foreseen under s.167(b)/(d) must be more than negligible or remote. Must recognise real or substantial risk death would be caused.
43
Murder committed in execution of common purpose s.66(2) CA 1961
2+ people form common intent prosecute unlawful purpose and assist each other each of them is party to every offence committed by other in prosecution of common purpose if commission of offence known to be probable consequence.
44
Attempted Murder
S.173 CA1961
Penalty = 14 years
Crown have to prove AR & MR in S.72 CA1961
MR: intent to commit offence. Show D intent was to commit the substantive offence (r v Murphy). Doesn’t include if offence required recklessness/ negligence.
AR: does/ omits to do act for purpose committing offence whether possible to commit offence or not. Act/ omission must be more than mere preparation.
Proximity: act/ omission must be proximate to offence. Conduct considered in entirety, what remains to be done is relevant but not determinative (r v harpur). Ask if done more that get into position to commit offence AND he commenced execution. Q of law.
45
Conspiracy to commit murder
S.175 CA1961
Liable 10 years
If conspires/ agrees with any person to murder any person. Whether murder takes place in NZ or not.
“To murder” included causing death of person outside NZ in circumstances that would amount to murder if act committed in NZ
46
Counselling or attempting to procure murder
S.174 CA 1961
Liable 10 years
If incite/ counsel/ attempt to procure any person to murder other person in NZ.
47
Accessory after the fact
S.176 CA 1961
Penalty - 7 years
Accessory to after the fact to murder
48
R v Mane
Accessory
Offence must be complete at time of involvement. Can’t be convicted as accessory to murder if AR for accessory was completed before homicide was complete.
49
Difference between manslaughter and murder + penalty
Mens Rea is key difference.
Penalty is life imprisonment but judge considers all matters may impose penalty from fine to life depending on circumstances.
50
Voluntary manslaughter
Mitigating circumstances reduce what otherwise be murder to manslaughter even though may have intended to kill/ cause gbh
51
Definition of accessory after the fact
S.71(1) CA 1961
Knowing person party to offence receives/ comforts/ assists/ tampers or suppresses evidence in order to enable escape after arrest or avoid arrest conviction
52
Gross Negligence
S.150A CA1961
Section applies in relation to legal duties specified in sections
151, 152, 153, 155, 156, 157 and U/L acts referred under S.160 where U/L act relied on proof of negligence or is strict or absolute liability offence.
Criminally responsible for omitting to discharge/ perform legal duty or performing U/L act if js major departure from standard of care expected of reasonable person to whom duty applies
53
Major departure test
PLS prove very high degree of negligence (gross neg). Having regard risk of death of D so bad amounts to criminal act/ omission. Objective test.
54
Manslaughter by U/L act
S.160(2)(a) CA 1961
Deals with deaths occurring by unlawful act. 4 point test
- D must intentionally do an act
- act must be unlawful
- act must be dangerous
- act must cause death
55
Involuntary manslaughter
Death caused by unlawful act/ gross negligence.
No intent to kill/ cause GBH.
Including culpable homicide that doesn’t come within S.167 or 168 (murder + def)
OR
Comes within sections but reduced to manslaughter because killing part of suicide pact.
56
Infanticide
S.178 CA1961
Liable 3 years
Not murder or manslaughter
Woman causes death of her child under 10 in a manner culpable of homicide
At time of offence balance of mind disturbed as not fully recovered from giving birth to that child or another or because of lactation or because of disorder consequent on childbirth/ lactation to extent shouldn’t be held fully responsible
57
Jury state of mind
Infanticide
Charged with murder/ manslaughter but jury believes state of mind due to effects of child birth return special verdict of acquittal because insane.
If charged infanticide + murder up to jury to decide state of mine.
Eg crazy South African lady timaru
58
Killing in sudden fight
Example of manslaughter
Consider if homicide. Can it be justified as self defence so should be acquitted OR
If in fact was a fight means not have requirements MR so should be manslaughter.
59
Provision of necessaries
S.151 CA 1961
Actual care/ charge of vulnerable adult who unable to provide self necessaries is under legal duty
To provide necessaries AND
Take reasonable steps to protect from injury
60
Manslaughter by negligence
Must cases will engaged in dangerous act/ in charge dangerous thing so need to follow standards in S155/ 156 to eat if negligence. Example:
- if V contributed to own death through own negligence. No defence (contributory negligence)
- if death during lawful contest/ game death is non culpable unless D’s actions were likely to cause serious injury
- juries reluctant convict negligence drivers of manslaughter so alternative offences formulated in LTA 1998 (eg reckless driving causing death)
61
Definition of vulnerable adult
Person unable by reason of detention, age, sickness, mental impairment, other cause to withdraw self from care or charge of another. Can be short lived. Objective test.
62
Definition of protect from injury
Bodily harm caused directly by person, harm arising from human act. And non human sources.
63
Dangerous Acts or things
S.155 CA1961
Undertakes (except when it’s a necessity) to administer surgical/ medical treatments or do other lawful act which may be dangerous to life
Under legal duty have/ use reasonable knowledge/ skill/ care and criminally responsible for consequences of omitting without lawful excuse to discharge duty.
64
Children between 10 and 14
S.22 CA 1961
Not convicted of offence because of act done/ omitted when 10 but under 14 unless knew act/ omission was wrong or contrary to law.
65
Definition of necessaries
Used to be “necessaries of life” which included commodities/ services necessary to sustain life like food, clothing, housing but now with broader concept
66
Attainment of particular age
S.5 CA 1961
Time person attains particular age is commencement anniversary of date of birth.
67
S.152 CA 1961
Protect child
Parent/ person in place of parent with actual care/ charge of child under 18 under legal duty
- to provide necessaries AND
- take reasonable steps to protect child from injury
68
S.153 CA1961
Employer of person under 16
Employer who contracted provide necessary food/ clothing/ lodging for servant/ apprentice under 16 under legal duty provide and criminally responsible for omitting without lawful excuse to perform duty if death caused/ life endangered/ health permanently injured.
69
S.154 CA1961
Abandoning child
Liable 7 years
If unlawfully abandon/ exposes child under 6
70
R v Forrest and Forrest
Proving age
The best evidence possible in circumstances should be adduced as to age. Produce evidence of age (birth cert) and evidence identifying as person named in certificate.
71
Insanity
S.23 CA 1961
Presumed sane at time of doing/ omitting act until contrary proved
Not convicted of offence because of act done/ omitted when labouring under natural imbecility/ disease of mind to extent to render incapable;
- understanding nature/ quality of actions
- knowing act/ omission morally wrong having regard commonly accepted standards right/ wrong.
Insanity before/ after time did/ omitted the act and insane delusions (even if partial) may be evidence offender was in a condition of mind that renders irresponsible.
72
What is automatism?
Total blackout when person isn’t conscious of actions/ not in control
Two types
1. Sane automatism = result of sleepwalking, blow to head, drugs. If negate intent/ response for AR= unqualified acquittal. (Action or conduct constitutes crime)
2. Insane automatism = result of mental disease. Treated by law as insanity and leg test in S23 applies.
73
Definition of consent
Must be conscious and voluntary agreement to something desired/ proposed by another. Must be full, free, voluntary, informed, given by person in position to form rational judgement.
74
Children under 10
Have a defence to any charge brought against them. Even though they can’t be convicted you still have to establish whether or not they are guilty.
75
General rule with children
Referred to OT care and protection co-ordinator until 14
76
Offences committed by children under 10
When action necessary consider dealing with as care and protection matter by reporting to OT care and protection co-ordinator.
77
Children 10-13 years charged with murder/ manslaughter
Usually dealt with under youth justice provisions of OT Act 1989. Charges filed in DC first. First appearance takes place in YC then automatically transferred to HC.
78
Can children be imprisoned?
Can be imprisoned and detained in CYF youth justice residence under custody chief executive MSD. Child offenders declared in need care and protection can be detained in care and protection residence under custody chief executive MSD.
79
Prosecuting children 12-13 years
S272(1) OT Act 1989 option to prosecute for certain offences punishable by 14+ years to life if are previous offender for serious crime punishable 10-14 years.
80
YP 14-6 years charged with murder/ manslaughter
Usually dealt with under youth justice provisions OT Act 1989. Charges filed in DC. First appearance takes place in youth court then automatically transferred to high court.
81
Young Persons imprisonment
Can be imprisoned for murder/ manslaughter, cat 3/ 4 offences where max penalty is 14+ years or life. Can be detained in CYF justice residence under custody chief executive of MSD.
82
What is disease of mind
Mental derangement in the widest sense. Including if not damage to brain/ other organ because it’s concerned with the mind (reason/memory/understanding etc). Not including temp mental disorder caused by an external factor (eg blow to head or taking drugs)
83
Who has to raise issue of insanity?
1. Pose risk to community procedure allowing become “restricted patient” (S.54(1) MHA 1992)
2. But insanity matter for D to raise. PPS prohibited adducing evidence of insanity even if D sought acquittal because state of mind not amounting to insanity. Any relevant evidence PPS have should be given to D.
3. In exceptional cases judge can put issue before jury if strong evidence indicating insane. Must direct jury attention to defence and tell them in summing up before deliberate if acquitted must be specific whether on grounds of innocence or insanity.
84
Burden of proof
Burden on D. Legal q not medical but usually addressed by evidence from medical experts.
85
R V Cottle
Insanity
Sufficient if insanity established in burden of proof without necessary excluding all reasonable doubt.
86
R v Clark
Insanity
Insanity for jury to decide and verdict inconsistent with medical evidence not necessarily unreasonable. Where unchallenged medical evidence supported by surrounding facts jury verdict must be founded on that evidence.
87
M’Naghtens Test
What are the rules for?
To establish if insane based on ability to think rationally. If insane were acting under such a defect of reason from disease of mind didn’t know
- nature/ quality of actions OR
- what did was morally wrong
88
How likely is defence to succeed?
Unlikely suceed cos intent require most offences isn’t easy to negate.
D needs to prove reasonable doubt about state of mind required
Normally used mitigate penalty (not permitted violence/ danger person)
89
R v Codere
Nature and quality of actions
Nature/ quality of act means physical character. Not involve considerations of moral perception/ knowledge of act. Cut throat believing loaf of bread = don’t know nature/ quality of the act.
90
If convicted of imprisonable offence what power does judge have?
1. Commit person hospital/ secure facility or instead passing sentence order treated as patient under MHA 1992. Cares for as care recipient under intellect disability act 2003. Can do if satisfied in D interests or for public safety.
2. Considering circumstances/ evidence health assessor’s may order immediate release (but in homicide attorney general can direct held as patient/ care recipient because of public interest).
91
When can intoxication be a defence?
If causes disease of mind so s.23 applies (insanity)
If intent required and so intoxicated plead lack of intent
If causes state of automatism
92
R v Cottle
Automatism
Doing without knowledge and without memory afterwards. Temp eclipse of consciousness that nevertheless leaves the person so affected to exercise bodily movements.
Eg: act done by muscles without control of mind - spasm, reflex, sleepwalking
Eg: caused by medical condition
Brain tumour, epilepsy
Eg: consumption alcohol/ drugs
Voluntary intake may be reluctant accept actions involuntary or offender lacked intent
93
Defense on balance of probabilities
Can raise defence even for strict liability offences eg EBA. Prove total absence of fault on BOP. Disallow when state of mind self induced, person blameworthy, consequences expected.
94
Ignorance of law
Ignorance of law isn’t excuse for any offence committed by him.
Exception for children s.22 CA1962
Child not know act wrong or contrary to law not liable.
95
Compulsion/ duress
S.24 CA1961
Commits offence under compulsion by threats of immediate death/ GBH from person present when offence committed protected from criminal responsibility if believes threats will be carried out.
What must threats be?
Operating on mind at time of act and so grave reasonable person act same. Different standards when women and children are involved.
Believes - must believe threat is genuine
96
R v Joyce
Immediate and present - threats must be immediate
Compulsion must be made by person when offence committed. Has to be threatened with immediate death/ GBH.
97
Difference between mistake/ entrapment
Mistake
Except when MR unnecessary bona fide mistake/ ignorance about matters of fact = defence. No obligation on D to prove RG for belief. Reasonableness may indicate whether belief actually held.
Entrapment
Deliberately cause person to commit offence. Courts rejected entrapment as a defence. Rely on judge to exclude unfair evidence against D.
98
Note for entrapment
If entrapment unfair it may result in excluding evidence to prevent abuse process through unfairness. Examine why reason targeted and way offending initiated.
99
Self defence
S.48 CA 1961
Justified in defence of self or another using force as in circumstances believes is reasonable to use
100
Decision to use force
Use force is a subjective test
Can use before any actual bodily harm/ threat received to escape threatening/ dangerous situations (pre emptive strike). Once decided to use force object test of reasonableness about degree/ manner force used. If force unreasonable liable under excess force S.62 CA 1961
Ask yourself -
What circumstances did you genuinely believe existed?
Do you accept genuinely believed circumstances existed?
Was force reasonable??
101
Definition of alibi
Plea in a criminal charge of having been elsewhere at the material time.
102
S.20 criminal disclosure act 2008
Court/ register give D written notice req S.22/23 if pleads NG or child/ YO make first appearance in YC.
103
S.22 criminal disclosure act 2008
If D intends to adduce evidence in support of an alibi must give written notice to PPS of particulars
Notice must be given within 10 working days after D is given notice under section 20
Must:
Incl names/ address of witness or if it isn’t known any matter known that might provide material assisting finding
Take all reasonable steps to ensure name/ address is confirmed
If name/ address isn’t incl in notice but find out or become aware of matter that might assist finding as soon as pract give written notice
If notified by PPS witness not traced as soon as practicable give written notice of matter that might assist finding
104
OC case role in relation to alibi witnesses
Ensure QHA/ active charges are prepared on witness
Make enquiries to confirm/ rebut evidence in support of alibi
Info provided to PPD as soon as reasonably practicable
105
Procedure for interviewing alibi witnesses
Don’t interview unless PPS request
1. Advise D counsel of interview and give reasonable opportunity to be present.
2. If D not represented ensure witness interviewed in presence of independent person ( not police)
3. Make copy of STX available to D counsel. Info relating to credibility can be withheld under s.16(1)(o)
106
Expert evidence
If D intends to call expert witness must disclose to PPS
- brief of evidence or any report provided by witness OR
- if brief not available summary of evidence to be given and conclusions of report to be provided.
- disclosed at least 10 working days before trial.
107
108
When is consent a defence?
General rule acts criminal when done against will person affected/ owner of property involved. PPS must prove no consent ( but only arises if evidence where consent can be inferred)
109
Assault
Harmless acts lawful in normal circumstances become unlawful if done without permission without consent
Guide:
Everyone has right to consent to surgical op
Everyone has right to consent to infliction of force not involving bodily harm
No one right to consent to death OR injury likely to cause death
No one right to consent to bodily harm in manner that amounts to breach of peace OR prize fight calculated to collect together disorderly people
Uncertain extent right consent put in danger of death/ bodily harm by another’s act
110
111
Cameron v R
Recklessness established if:
D recognised that there was a real probability that:
His/ her actions would bring about a proscribed result and/ or
That the proscribed circumstances existed and
Having regard to that risk those actions were unreasonable
112
113
114
R v Murphy
Attempts
To prove an attempt it must be shown the intention was to commit substantive offence. Eg: attempted murder, crown must show an actual intent to kill.
115
116
R v Harpur
Attempts
The court may have regard to the conduct viewed cumulatively up to the point when the conduct in question stops. D conduct may be considered in its entirety. Considering how much remains to be done is always relevant but not determinative.
117
