Homicide Flashcards
(107 cards)
1
Q
Define: Homicide (s)
A
s158 CA61
The killing of a human being by another, directly or indirectly, by any means whatsoever.
2
Q
Can an organisation be a party to Manslaughter?
A
Yes
3
Q
Can an organisation be a principal offender or party to Murder?
A
No. Because murder carries a mandatory life sentence.
4
Q
Case: Murray Wright Ltd
A
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.
5
Q
When does a child become a human being? (s)
A
s159(1)
When it has completely proceeded in a living state from the body of its mother, whether or not it has breathed, has an independent circulation or the naval string is severed.
6
Q
When is the killing of a child homicide (and section?)
A
s159(2)
The killing of a child is homicide if it dies as a result of injuries received before, during or after birth.
7
Q
When is homicide culpable? (s)
A
160(2)
Homicide is culpable when it consists of the killing of any person:
(a) by an unlawful act
(b) by an omission, without lawful excuse, to perform or observe any legal duty
(c) both
(d) by causing that person by threats or fear of violence, or by deception, to do an act which causes his death
(e) wilfully frightening a child under the age of 16 years or a sick person.
8
Q
Define: Unlawful act
A
s2
means a breach of any Act, regulation, rule or bylaw
9
Q
Case: Myatt
A
[for the purposes of culpable homicide] the unlawful act must be one likely to do harm to the deceased or to some class of person of whom he was one.
10
Q
List the legal duties that are imposed by statute (6)?
A
- if have care or charge of vulnerable adult: provide the necessaries and protect from injury (s151)
- if parent/guardian of under 18: provide the necessaries and protect from injury (s152)
- if contracted provide food, clothing, shelter to apprentice under 16: provide necessaries as an employer (s153)
- use reasonable knowledge and skill when performing dangerous acts (s155)
- take precautions when in charge of dangerous things, such as machinery (s156)
- avoid omissions that will endanger life (s157)
11
Q
Case: Tomars
A
Regarding s160(2)(d):
- Was the deceased threatened by, in fear of or deceived by the defendant?
- If so, did that cause them to do the act that caused their death?
- Was the act a natural consequence of the actions of the defendant and would a reasonable person in the defendant’s shoes foresee it?
- Did these foreseeable actions of the victim contribute in a [significant] way to his death?
12
Q
Can a person consent to being killed? (s)
A
No. s63 Crimes Act 1961
13
Q
Case: Horry
A
Where no body can be found a person can still be charged with murder so long as:
the circumstantial evidence is so compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for.
14
Q
List the two justifications for homicide?
A
- s48 - self-defence
- s41 - to prevent
- suicide or
- an offence likely to cause immediate and serious injury to any person or property
15
Q
What must you prove to establish death? (3)
A
- death occurred
- deceased is identified as the person who has been killed
- the killing is culpable
16
Q
When is culpable homicide murder (s)?
A
s167
culpable homicide is murder if:
(a) 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 they know is 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 any one.
17
Q
Case: Harney
A
Recklessness means the conscious and deliberate taking of an unjustified risk.
18
Q
What is required to prove recklessness under s167(b)?
A
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
19
Q
Case: Piri
A
The degree of risk of death foreseen by the defendant under s167(b) or (d) must be more than neglible or remote, they must recognise a real and substantial risk that death would be caused.
20
Q
Case: Desmond
A
relates to s167(d):
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.
21
Q
Punishment of Murder (Crimes Act and Sentencing Act)
A
s172
(1) liable to life imprisonment
(2) ss1 subject to s102 of the Sentencing Act 2002
s102 Sentencing Act 2002
(1) Convicted of murder then must get life unless, given the circumstances of the offence and the offender, a sentence of imprisonment for life would be manifestly unjust.
(2) Court must give written reasons for not imposing a life sentence.
22
Q
What is the section/penalty (they are the same) for attempted murder? (s)
A
s173
(1) If attempt to commit murder then liable 14 years.
23
Q
Counselling or attempting to procure murder
A
s174
Liable 10 years who incites, counsels, or attempts to procure any person to murder any other person in NZ, when that murder is not in fact committed.
24
Q
Case: Murphy
A
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
25
Case: Harpur
The defendant’s conduct may be considered in its entirety. Considering how much remains to be done ... is always relevant, though not determinative.
26
Conspiracy to murder
_s175_
Liable 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.
27
Accessory after the fact to murder
_s176_
Liable 7 years who is an accessory after the fact to murder.
28
Case: Mane
To be considered an accessory the acts done by the person must be after the completion of the offence.
29
What is the difference between voluntary manslaughter and involuntary manslaughter?
_Voluntary manslaughter_
* mitigating circumstances.
* e.g. suicide pacts, reduce what would otherwise be murder to manslaughter, even though the defendant may have intended to kill or cause grievous bodily harm.
_Involuntary manslaughter_
* killing caused by an unlawful act or gross negligence. Where no intention to kill.
30
List common circumstances for manslaughter?
1. killing in a sudden fight
2. manslaughter by an unlawful act
3. manslaughter by negligence
4. negligent drivers
31
What things should be considered for a killing in a sudden fight and why?
* self-defence
* the requisite mens rea for a murder charge
why?
* if self-defence is an option then acquittal is appropriate
* if the fight negates that the defendant had the required mens rea for murder then it is manslaughter
32
List the four-point *Newbury and Jones* outlines in manslaughter by an unlawful act.
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
33
What are three things to be aware of in manslaughter by negligence cases?
1. consent of the person who died is no excuse e.g. agreeing to get shot
2. if the death occurs during a lawful game or contest, e.g rugby, then it is non-culpable unless the defendant's actions were likely to cause serious injury.
3. even if the deceased contributed to their own death by negligence that does not offer a defence to a defendant. contributory negligence is no defence.
34
What is the 'Major Departure' test in s150A(2)?
* An Objective test
* **Adomaki:**having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount to a criminal act or omission.
35
What is the punishment for manslaughter?
Life imprisonment but, circumstances dependent, the judge can may impose any penalty from a fine upwards.
36
List the four associated murder charges
1. attempt to murder
2. counselling or attempting to procure murder
3. conspiracy to murder
4. accessory after the fact to murder.
37
If an offender intends to kill A but inadvertently strikes the fatal blow to B, is the offender still guilty of murder?
Yes. s167(c).
38
In a charge of attempt to murder, what is the Crown required to prove?
* the mens rea and actus rea as set out in s72
* An intention to kill must be proved.
39
Define: Infanticide
s178:
- Where a woman causes the death of her child (\< 10), AND
- at the time the balance of her mind was disturbed because she had not fully recovered from the effect of giving birth to that or any other child OR
- the effects 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
=\> THEN she is guilty of infanticide, not murder or manslaughter, and liable 3 years.
40
Who decides a mother's state of mind in relation to infanticide?
The jury
41
Define: vulnerable adult
a person unable, by reason of:
- detention,
- age,
- sickness,
- mental impairment, or
- any other cause,
to withdraw himself from under the care or charge of another person
42
Is a 'vulnerable adult' a subjective or objective assessment?
Objective
43
What is s154?
Liable 7 years who unlawfully abandons or exposes any child under the age of 6 years.
44
Can a person be criminally responsible for killing another by influencing their mind?
_s163_
No. Not for killing by influencing their mind OR by any disorder or disease arising from such influence.
**Except** by wilfully frightening a child \< 16 years or a sick person. e.g. driving someone to suicide.
45
Case: Blaue
Those who use violence must take their victims as they find them.
46
Does the withdrawal of life support amount to 'treatment'
under s166?
No. It does not cause death but removes the possibility of extending the person’s life through artificial means.
47
What is *Novus acus Interviens*?
An intervening act that breaks the chain of causation
48
What are the two sections around culpability for suicide?
_s179_
Liable 14 years who—
(a) Incites, counsels, or procures any person to commit suicide, if that person commits or attempts to commit suicide in consequence thereof; or
(b) Aids or abets any person in the commission of suicide.
_s180_
(1) If kill another in pursuance of a suicide pact = manslaughter, not murder.
(2) Liable 5 years where 2+ people enter suicide pact and one kills themself, then any survivor is guilty of being a part to the death under a suicide pact. **But** not liable under s179.
49
What is a suicide pact?
_s180(3)_
suicide pact = Common agreement between 2+ people, the object of which the death of all of them, whether they taking their own lives or not.
50
what is s181: concealing the body of a child?
Liable 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.
51
When is hearsay admissible?
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.
52
What are the **circumstances** relating to the admissibility of a hearsay statement? (s16 Evidence Act 2006)
* nature of the statement
* contents of the statement
* the circumstances relating to making the statement
* circumstances relating to maker's veracity
* circumstances relating to accuracy of observation
53
Define: Justified
not guilty of an offence and not liable civilly.
54
Define: Protected from criminal responsibility
not guilty of an offence but civil liability may still arise.
55
What are the two defences for Infancy?
s21 _Children under 10_
(1) No person shall be convicted of an offence by reason of any act done or omitted by him 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 when of the age of 10 but under the age of 14 years, unless he knew either that the act or omission was wrong or that it was contrary to law.
56
Case: Forrest and Forrest
The best evidence possible in the circumstances should be adduced by the prosecution in proof of [the victim's] age
- generally a birth certificate together with corroborating evidence.
57
What type of defence does a child under 10 have to any charge brought against them?
An **absolute defence**. Nevertheless you still need to establish whether they are guilty or not
58
When interviewing 10 – 13-year-old children for the offence of murder, what must be shown in addition to the mens rea and actus reus requirements for the child to be held criminally liable for the offence?
That they ... understood that act was unlawful or wrong
59
A 13-year-old charged with murder, having been the subject of a committal hearing in the Youth Court, will be remanded to appear next in which court to have the matter heard?
10 to 13-year-olds charged with murder or manslaughter are usually dealt with under the youth justice provisions of the CYPF Act, although charges of murder and manslaughter will be heard in the High Court following the committal process in the Youth Court.
60
- and what is the presumption around it? (s)
- Define insanity
- what is some evidence that they were insane?
- and what is the bit about parties?
_s23_
(1) presumed sane till proven otherwise
(2) cannot be convicted of act done or omitted when labouring under a 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.
(3) insanity before and after and insane delusions
61
What are the four other homicide related sections?
s163 - no criminal responsibility for killing another by influence on the mind alone. (Except wilfully frightening child/sick person)
s164 - homicide if do an act or omission that kills a person though the effect of the act or omission was to accelerate the of death of a person labouring under disorder/disease.
s165 - homicide if cause death that might have been prevented by resorting to proper means
s166 - homicide if cause dangerous bodily injury and the treatment of which causes death if treatment, proper or improper, applied in good faith.
62
What may contribute to proving that a person was insane at the time of offending?
_s23(3)_
Insanity and insane delusions before or after the act/omission may be evidence that the offender was in such a condition of mind as to render him irresponsible for that act/omission.
63
Whose role is it to raise the issue of insanity?
Defence. Prosecution is prohibited from adducing evidence of insanity .
A judge may put the issue of insanity to a jury.
64
if there is strong evidence to indicate that the defendant did commit the alleged offence but was insane at the time what must be done?
A judge must direct the jury's attention to the defence of insanity. If a jury acquits the defendant they must be specific as to whether this is on the grounds of insanity or innocence.
65
Where does the burden of proof lie when regarding insanity?
With the defence.
66
Case: Cottle (insanity)
The degree of proof the defence been to prove insanity to is the balance of probabilities.
67
Case: Clark
Insanity is a legal question, not a medical one. A jury may return a verdict inconsistent with medical evidence and this would not be unreasonable.
68
What are M'Naghten's Rules?
A person is insane if 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.
69
Does a 'disease of the mind' include a temporary mental disorder?
No. E.g. drugs or alcohol.
70
Case: Codere
The nature and quality of the act means the physical character of the act. The phrase does not involve the morality of the act.
71
Case: Cottle (authomatism)
Doing something without knowledge of it and without memory afterwards of having done it.
72
Is there culpability for actions done in automatism?
Generally no
73
What are the two types of automatism?
**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.
74
What is the important point about insane automatism?
it may lead to a finding of insanity, even if the defendant has not raised this defence and has pleaded automatism alone.
75
What is the definition of a *'*strict liability' offence?
it requires no mens rea
76
When may intoxication be a defence to the commission of an offence? (3)
1. where the intoxication causes a disease of the mind so as to bring s23 (Insanity) of the Crimes Act 1961 into effect
2. 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.
3. where the intoxication causes a state of automatism (complete acquittal).
77
Is ignorance of law an excuse for any offence committed?
No.
_s25_
The fact that an offender is ignorant of the law is not an excuse for any offence committed by him.
78
Define: automatism?
Automatism is a state of total blackout when a person is not conscious of, nor in control of, their actions.
79
What may a defence of automatism depend on?
A defence of automatism may depend on whether the state of automatism is involuntary or self-induced and whether intent is present.
80
Can intoxication be used as a defence to any offence that involves mens rea?
Yes.
81
Define: Compulsion
_s24_
Subject to the provisions of this section, a person who commits an offence under compulsion by threats of immediate death or grievous bodily harm from a person who is present when the offence is committed is protected from criminal responsibility if he believes that the threats will be carried out and if he is not a party to any association or conspiracy whereby he is subject to compulsion.
82
Case: Joyce
The compulsion must be made by a person who is present when the offence is committed.
83
Case: Lavelle
It is permissible for undercover officers to merely provide the opportunity for someone who is ready and willing to offend, as long as the officers did not initiate the person’s interest or willingness to so offend.
84
Define: Self-defence
_s48_
Every one 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.
85
What criteria is initially used to determine the degree of force permitted? (3)
1. What circumstances did the defendant believed existed (mistaken or not)?
2. Does the jury/court accept they believed them?
3. Was the force used reasonable in those circumstances?
86
Define: Alibi
as the plea in a criminal charge of having been elsewhere at the material time: the fact of being elsewhere.
87
What is the procedure where alibi witnesses are interviewed?
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).
88
If defence intends to call an expert witness what must they do?
1. any brief of evidence to be given or any report provided by that witness, OR
2. 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 10 working days before the date fixed for the defendants trial, or within any further time that the court may allow (s23(1)).
89
Can a person licence another to commit a crime?
No.
90
What are the guidelines around consent and force?
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.
91
Is entrapment a defence in NZ?
No. A judge will decide on the fairness or unfairness of how the evidence was collected and whether it should be excluded.
92
In relation to compulsion, what does “immediate” mean?
at the scene from a person present at the time
93
What in effect is a defence of mistake?
A defence of mistake is in effect a denial of intent.
94
Who decides whether there is evidence of self-defence?
Evidence of self-defence is decided by the judge.
95
What actions do not allow for a defence of consent?
You cannot use the defence of consent in cases involving:
− 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.
96
What people are considered unable to give consent? (3)
People are considered to be unable to give their consent if they are:
1. a child
2. unable to rationally understand the implications of their defence
3. subject to force, threats of force or fraud.
97
Case: Tarei
Withdrawing life support is not "treatment" under s166. It does not cause death but removes the possibility of extending the person’s life through artificial means.
98
A Question of Law relating to whether the condition is a disease of the mind is answered by whom?
The Judge
99
What the accused’s state of mind was at the time of the offence is a question decided by whom?
The Jury
100
Case: Kamipeli
It does not have to be shown that the defendant was incapable of forming the mens rea, merely that, because of their drunken state, they did not have the proper state of mind to be guilty
101
What is the burden of proof for insanity?
The accused is not required to prove the defence of insanity beyond reasonable doubt, but to the satisfaction of the jury on the balance of probabilities.
102
Case: Cox
Consent must be full, free, voluntary and and informed.
103
List the difference between counselling or attempting to procure murder (s174) and conspiracy to Murder (s175)
Counselling or attempting to procure murder requires that the offence is to be committed in New Zealand, whereas with conspiracy to murder, the murder can take place in New Zealand 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.
104
What happened in R v Ranger?
Defendant thought that partner was going to get a gun and kill her and the children. She pre-emptively stabbed him with a knife. Judge ruled that these circumstances could be put to the jury as self-defence.
105
In common law, allegations of culpable homicide have been supported where the offenders have caused death by particular circumstances. Name any four of these circumstances.
1. Committing arson
2. Giving a child an excessive amount of alcohol to drink
3. Placing hot cinders and straw on a drunk person to frighten them
4. Supplying heroin to the deceased
5. Throwing a large piece of concrete from a motorway over bridge into the path of an approaching car
6. Conducting an illegal abortion.
106
In relation to Section 160(2)(d), give two practical examples of culpable homicide which has been caused by the victims actions, prompted by threats on fear of violence
1. Jumps or falls out of a window because they think they are going to be assaulted
2. Jumps into a river to escape an attack and drowns
3. Who has been assaulted and believes their life is in danger, jumps from a train and is killed.
107
Give an example when murder might be reduced to manslaughter even though the accused intended to kill or cause grievous bodily harm
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.
