Homicide law Flashcards
(204 cards)
1
Q
What is the title of Section 159?
A
Killing of a child
2
Q
What are the critical factors to consider for a charge of murder?
A
Whether the offender intended to:
Kill the person or
Cause bodily injury that the offender knew was likely to cause death
3
Q
If neither intentions, or critical factors, can be proven what is the most likely charge?
A
Manslaughter
4
Q
What is an example of a situation where someone is culpable for death but it does not amount to murder?
A
Failing to perform a legal duty (seeking medical treatment for an ill person) OR
Having acted unlawfully but not imagining the possibility of death occurring (driving whilst intoxicated and killing someone)
5
Q
What may the jury do if they do not believes the prosecution proved murder?
A
They may return a verdict of manslaughter
6
Q
What is the survivor of a suicide pact likely to be liable for?
A
Manslaughter
7
Q
What is the definition of homicide?
A
Homicide is the killing of a human being by another, directly or indirectly, by any means whatsoever.
8
Q
What can an organisation be convicted of?
A
An organisation can be convicted as a party to the offence of manslaughter but cannot be convicted as either a principle offender or party to the offence of murder.
9
Q
Why can’t an organisation be convicted of murder?
A
Because murder carries a mandatory life sentence
10
Q
When does a child become a human being within the meaning of S159 crimes Act 1961?
A
A child becomes a human being when it has proceeded in a living state from the body of its mother, whether it has:
- Breathed or not
- An independent circulation or not
- The navel string is severed or not
11
Q
When is the killing of a child (that meets the criteria set out in S159 CA 61) a homicide?
A
If it dies in consequence of injuries received before, during or after birth
12
Q
What can homicide be?
A
Culpable or not culpable
13
Q
When is homicide culpable?
A
When it consists in the killing of any person
- By an unlawful act or
- By an omission without lawful excuse to perform or observe any legal duty; or
- By both combined; or
- By causing that person by threats or fear of violence, or by deception, to do an act which causes his death; or
- By wilfully frightening a child under the age of 16 years or a sick person
14
Q
Is non-culpable homicide an offence?
A
No
15
Q
Unlawful act definition
A
Means a breach of any act, regulation, rule or bylaw
16
Q
What do you need to prove culpable homicide?
A
You need to prove that death was caused (at least in part) by the breach of an act, regulation, rule or bylaw.
17
Q
What does the “unlawful act” need to be?
A
The common law requires that the act must be one that is likely to do harm or that is inherently dangerous as well as being unlawful.
18
Q
What “unlawful act” or breach would not be sufficient to meet the definition of a culpable homicide?
A
The breach of an electoral law because although it is unlawful, it is not likely to do harm to the deceased and is not inherently dangerous.
19
Q
Does “public safety” have to be the primary objective in the act, regulation, rule or bylaw for it to be included in “unlawful act”?
A
No, it need not be the primary objective.
20
Q
It was confirmed in R v Lee that the act must be objectively dangerous, what does this mean?
A
That a reasonable person in the shoes of the defendant would know that the harm existed.
21
Q
What else was held in R v Lee?
A
That “some” harm means more than trivial harm
22
Q
For an act to be “unlawful” what must be met?
A
All elements of the offence, including mens rea and it must be done without lawful justification or excuse.
23
Q
What is an example of an unlawful act leading to death? What must be proven?
A
An assault that leads to death of the victim. It must be proved that the defendant intended to assault the victim and didn’t have a defence such as self defence.
24
Q
When will someone be criminally responsible against S150A relating to standard of care applicable to persons under legal duties or performing legal acts?
A
They will only be criminally responsible if the unlawful act is a MAJOR departure from the standard of care expected from a reasonable person.
25
What does culpable homicide include?
Any death caused by an omission, without lawful excuse, to perform or observe any legal duty.
26
What is covered in homicide by omission to perform a legal duty?
It covers cases where nothing is done when there is a legal duty to act, and certain cases of positive conduct accompanied by a failure to discharge a legal duty.
27
What can a person who omitted to perform a legal duty be charged with?
Manslaughter, provided there was sufficient fault, or murder if the defendant had the requisite mens rea.
28
What is a legal duty?
This term refers to those duties imposed by statute or common law including uncodified common law duties.
29
What are "duties" defined as under the Crimes Act ?
- Provide the necessaries and protect from injury
- Provide necessaries and protect from injury to your charges when you are a parent or guardian
- Provide necessaries as an employer
- Use reasonable knowledge and skill when performing dangerous acts (surgery)
- Take precautions when in charge of dangerous things, such as machinery
- Avoid omissions that will endanger life
30
What must be proved for an omission of a legal duty to be a homicide?
That the death would not have occurred as and when it did had the defendant performed the duty in question and it must have been a “substantial and operative cause of death”
31
In some cases, both unlawful acts and the omission to perform a legal duty are applicable to the same act. What is an example of this?
E.g. To drive a car so recklessly that you kill a pedestrian is both an unlawful act and an omission to observe your duty to take precautions when you are in charge of a dangerous thing.
32
In common law, what allegations of culpable homicide have been supported?
Where the offender has caused death by;
- 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 then 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
33
Can threats, fear of violence and deception lead to culpable homicide?
Yes
34
What do you need to prove for threats, fear of violence or deception to be culpable homicide?
You must prove that the fear of violence was well founded, but you do not need to show the deceased’s action was the only means of escape.
35
What did R v Corbett identify in relation to Threats, fear of violence and deception?
The victims conduct should be
- Reasonably foreseen
- Proportionate to the threat OR
- Within the ambit of reasonableness
Although the victim might do the wrong thing or act unwisely, it is sufficient if the reaction is in the foreseeable range.
36
What are examples of culpable homicide caused by actions prompted by threats, fear of violence or deception?
Are when a person
- Jumps or falls out of a window and dies because they think they are going to be assaulted
- Jumps into a river to escape an attack and drowns
- Who has been assaulted and believes their life is in danger, jumps from a train and is killed.
37
For the offence of “frightening a child or sick person” under S160, what does this need to be as a result of?
It need not be a result of fear of violence but may be caused by any act that frightens the child or sick person, so long as it is done wilfully
38
“Wilfully frightening” definition
“Intending to frighten or at least being reckless as to this”
39
What does Simester and Brookbanks suggest in regards to “Wilfully frightening”?
It would require that the offender intended to frighten, or is at least subjectively reckless as to the risk of that.
Mens rea should be interpreted as applying to all elements so that the defendant must at least have been aware of a real risk the victim is under 16 or sick.
40
Does the defendant need to know that the victim is under 16 or sick for a charge under S160?
The defendant must, at least, have been aware of a real risk that the victim was under 16 or sick.
41
Is “Killing by influence on the mind” an offence?
Alone it is not an offence, except as provided in S163 which applies to someone who mentally tortures another person who is already mentally or physically sick, so that the victim has a mental breakdown and commits suicide.
42
What is an example of an offence under S163 (Killing by influence on the mind)?
If a man took tests in hospital for an ongoing stomach complaint and someone at the hospital says he has terminal cancer (as a joke) and the man commits suicide as a result, the sender could be charged.
43
Can you consent to death?
No one has the right to consent to being killed.
Consent will not affect the criminal responsibility of anyone involved in the killing.
44
Can a person be charged for a death relating to lawful games and contests?
Generally in lawful contests and games (boxing, wrestling, football and hockey) the death of a participant from injuries received during the game is normally treated as non-culpable homicide.
45
When can a person be charged for a death relating to lawful games and contests?
If a contestant causes the death of another by an act that is likely to cause serious injury, they can be found guilty of manslaughter.
46
What must you do to establish / prove a death?
You must prove the:
- Death occurred
- Deceased is identified as the person who has been killed
- The killing is culpable
47
How can death be proved?
By direct and / or circumstantial evidence.
48
Can a charge of murder be made even when a body has not been located?
Yes
49
When an act (resulting in death) is justified, what does this mean?
That the perpetrator is exempt from both criminal and civil liability
50
What is an example of “Justified” acts that are exempt from both criminal and civil liability?
- Homicide committed in self-defence
- Homicide committed to prevent suicide or commission of an offence which would be likely to cause immediate and serious injury to the person or property of any-one
51
For a “justified act” resulting in death, what amount of force is required for it to be justified?
The force is limited to that which is reasonably necessary in the circumstances.
52
What are other non-culpable homicides protected from?
Criminal responsibility only.
53
When is culpable homicide defined as murder? (S167)
If the offender:
- Intends to cause the death
- Intends to cause bodily injury to the person killed knowing it would likely cause death AND is reckless as to whether death ensues
- Intends to cause death or being reckless as to whether death occurs, means to cause bodily injury, and by accident or mistake kills another person without meaning to hurt that person
- For any unlawful object does an act that he knows is likely to cause death and kills any person, though he may have desired that this be effected without hurting anyone
54
Section 168
Culpable homicide is also murder in each of the following cases, whether or not the offender means or does not mean death to ensue, or knows or does not know that death is likely to ensue:
- If he means to cause GBH for the purpose of facilitating the commission of any of the offences in sub 2, 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
- If he administers any stupefying or overpowering thing for any of the purposes aforesaid, and death ensues from the effects thereof
- 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.
55
Intent definition
There must be an intention to commit the act and an intention to get a specific result
56
Deliberate act definition
Intent means that an act or omission must be done deliberately. The act or omission must be more than involuntary or accidental.
57
Example of a deliberate act
A person intends to strike the victim with their fist on the right side of the face above the eye
58
Result definition
In this context, result means “Aim, object or purpose”
59
When charging an offender with murder under S167, you must show that the defendant:
Intended to cause the death, or
Knew that the death was likely to ensue or
Was reckless that death would ensue.
60
If the intention requirements under S167 are not met, what does this mean RE charging decision?
If the intent is not present, the offence is manslaughter UNLESS it falls under the provisions of infanticide.
61
What does “Acting recklessly” involve?
Consciously and deliberately taking an unjustifiable risk.
62
What must be proved for “acting recklessly”?
That not only was the defendant AWARE of the risk and proceeded regardless, but also that it was unreasonable for him to do so.
63
What does “A real possibility” mean under the Cameron test?
Is completely subjective and is the same as something that “could well happen”
64
If there is some social utility in applying the ‘cameron test’ what will the charging depend on?
Where there is some social utility in the actions of the defendant, whether those actions were unreasonable will depend on “whether a reasonable and prudent person would have taken the risk”
65
What is an example of no social utility?
A game of Russian roulette or personal violence with a risk of serious injury or death
66
What is an example of high social utility?
A surgeon undertaking a risky but lifesaving surgery.
67
What “general rule” for recklessness was established in R v Tipple?
That the offender know of, or have a conscious appreciation for the relevant risk, and it may be said that it requires “a deliberate decision to run the risk”.
68
To show that the defendants state of mind meets the provisions of s167, what must you establish?
- 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
69
What will the court look at in regards to killing in pursuit of an unlawful object?
- Whether the defendant knew the acts were likely to cause death, and
- Whether the defendants original intent of indecent assault amounted to an unlawful object
70
In relation to ‘whether the defendant knew the acts were likely to cause death’, what did the court find?
That the series of acts of violence by the accused were continuous and within a very short space of time. There was no evidence to suggest that his state of mind or purpose changed. The combination of acts resulted in death and there is no requirement to prove that the accused foresaw exactly how death would occur.
71
In relation to ‘whether the defendants original intent of indecent assault amounted to an unlawful object’, what did the court find?
It does not need to be the same as that injury that causes death. Here the indecent assault can be such an unlawful object where other person injuries are inflicted in the knowledge that they are likely to cause death.
72
Who decides whether the defendant knew that his / her actions at the time were likely to cause death?
The jury.
73
What informs a jury’s decision as to whether the defendant knew their actions were likely to cause death?
By drawing inferences from all circumstances, including what the defendant said and did at the time.
74
What distinction is made with an unlawful object?
A distinction is made between an unlawful object and an object that may be illicit or immoral.
75
What is covered under S66?
Parties to offences
76
What do Sections 66 (parties to offences) and 168 (Extended definition of murder) both cover?
They both provide for the criminal responsibility of people who are in the course of carrying out an unlawful purpose when one of them kills someone.
77
When can you be charged as parties to an offence?
When 2 or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein.
78
If you are a ‘party’ to an offence, what are you liable for?
Each of them is party to every offence committed by any one of them in the prosecution of the common purpose
79
What makes you liable for every offence committed (parties to)?
If the commission of that offence was known to be a probable consequence of the prosecution of the common purpose
80
What is “Grievous bodily harm”
Very serious harm, such as an injury to a vital organ
81
To come under S168(c), what must the stopping of the victims breath be?
It must be done wilfully
82
Do you have to show that the secondary party (to murder) knew the death was a probable consequence?
No, it is not necessary to show that the secondary party knew the death was a probable consequence of their carrying out their primary purpose.
83
What must the secondary party know to be a party to and jointly responsible for murder?
They must know that it was a probable consequence that the principal might do an act that would, if death ensued, bring their conduct within the terms of section 168.
84
What is the sentence for murder?
Life imprisonment
85
What Section outlines the sentence for murder?
Section 172 Crimes Act 1961
86
Are their exceptions to “life imprisonment” for murder?
Yes, under Section 102 Sentencing Act 2002 - Presumption in favour of life imprisonment for murder
87
What are the exceptions to “life imprisonment” under S102 Sentencing Act 2002?
They MUST be sentenced to imprisonment for life, unless, given the circumstances for the offence and the offender, a sentence of imprisonment for life would be manifestly unjust.
88
What must the court do if they do not impose life imprisonment for murder?
It must give written reasons for not doing so
89
What offence is outlined in section 173 Crimes Act 1961?
Attempted murder
90
With an attempt to murder charge, what is the crown responsible for establishing?
The mens rea and actus rea as set out in S72 (Attempts)
91
What is the definition of an attempt under S72 CA 61?
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.
92
Does it matter if it was possible to commit the offence for an attempt?
No, the person is guilty of an attempt, whether in the circumstances it was possible to commit the offence or not
93
In regards to an attempt, what is a question of law?
Whether an act done or omitted with an 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.
94
When may an act done or omitted with intent constitute an attempt?
If it is immediately or proximately connected with the intended offence, whether or not there was any act showing the intent to commit that offence
95
What is the requirement of “intent” In regards to an attempt?
It suggests that only an intention to commit the offence will be sufficient. There cannot be an attempt where an offence is defined by recklessness or negligence.
Therefore, this requirement means that attempted murder is one of the most difficult offences to prove beyond a reasonable doubt.
96
What must the defendant have done to “be sufficiently proximate to the full offence”?
The defendant must have started to commit the full offence and have gone beyond the phase of mere preparation
97
What is the “all but” rule in relation to an attempt?
That the defendant must have started to commit the full offence and have gone beyond the phase of mere preparation
98
How else can an “attempt” be proved?
Independent acts, which if looked at in isolation, might simply be construed as prepatory, can take on a different context when looked at collectively and therefore amount to a criminal attempt.
99
How can proximity be determined?
The determination of proximity is an inconclusive one and will come down to the circumstances as they exist for each individual offence that is being investigated.
100
What must you ask yourself when determining proximity?
Do the facts show mere preparation, or are the defendants acts or omissions immediately or sufficiently proximate to the intended offence
101
What questions are suggested under case law Simester and Brookbanks to ask when determining at which point an act of mere preparation may become an attempt?
- 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?
102
What is proximity a question of? Law or fact?
It is a question of law and must be decided by the judge based on the assumption that the facts of the case are proved.
103
What is the punishment for attempted murder?
14 years imprisonment under S173
104
What offence is outlined in S174 CA 61?
Counselling or attempting to procure murder
105
What are the elements of “Counselling or attempting to procure murder” in S174?
Anyone who
- Incites
- Counsels or
- Attempts to procure
Any person to murder any other person in NZ
When that murder is not committed
106
What are the limitations of “counselling or attempting to procure murder”?
It only applies where murder is not in fact committed.
107
What if the murder is succeeded after a person counsels or procures it?
Then the inciter or counsellor will be parties to murder under the S66 provisions.
108
What if the murder is attempted after a person counsels or procures it?
An inciter, counsellor or procurer will be liable as a party under s66 to an attempt to murder under s173.
109
What does S175 CA 61 cover?
Conspiracy to murder
110
What are the elements of “Conspiracy to murder”?
Anyone who
- Conspires or
- Agrees
With any person to murder any person
Whether the murder is to take place in New Zealand or elsewhere
111
What is included in the definition of “murder” for Conspiracy to murder?
It includes to cause the death of another person out of New Zealand in circumstances that would amount to murder if the act were committed in New Zealand.
112
What is the key difference between manslaughter and murder?
The mental element that must be established to support the charge.
113
What does common law draw further distinction between?
Voluntary manslaughter and
Involuntary manslaughter
114
What is included in “voluntary manslaughter”?
Mitigating circumstances, such as a suicide pact, reduce what would otherwise be murder to manslaughter, event thought he defendant may have intended to kill or cause GBH.
115
What does “Involuntary manslaughter” cover?
The types of unlawfully killing in which the death is caused by an unlawful act or gross negligence.
In these cases, there is no intention to kill or cause GBH.
116
Based on the voluntary / involuntary manslaughter definitions, what culpable homicide does manslaughter include?
- Culpable homicide that does not come within S167 and S168
- Comes within Ss167 and 168, but is reduced to manslaughter because the killing was a part of a suicide pact
117
What needs to be considered when a killing that is a result of a sudden fight?
Self-defence
The requisite mens rea for a murder charge
118
If the homicide can be justified as being arisen from self-defence, what is the proper verdict?
An acquittal
119
If the fact that the death came from a fight negates that the defendant had the mens rea, what is the proper verdict?
Manslaughter
120
What is the four-point test for proving an unlawful act for manslaughter?
- The defendant must intentionally do an act
- The act must be unlawful
- The act must be dangerous
- The act must cause death
121
What situations give rise to a charge of manslaughter by negligence?
The situations that give rise to this are diverse and include negligence while in charge of or using trains, factory machines, mines, motor vehicles, ships or weapons, or while administering medical or surgical treatment.
122
Can negligent drivers be convicted of manslaughter?
They can be but juries have been reluctant to do so. In many cases there is little point as the driver may receive a lesser penalty than an alternate offence.
123
What alternative charge (to manslaughter) can a negligent driver be charged with?
Aggravated careless, dangerous and reckless driving causing death
124
When can a negligent driver be charged with manslaughter?
When there are a number of aggravating contributory factors that may indicate that a charge of manslaughter is preferable.
125
What must be taken into account when deciding if a negligent driver can be charged with manslaughter?
You must take into account the facts of the case and consider the offenders degree of negligence.
You should also consider the type of intent or act that caused the death.
126
What is an example of the consideration for a negligent driver being charged with manslaughter?
If the offender was “playing chicken” with an oncoming train, or if they had bet passengers in a vehicle they were driving that they could beat a train and cross a railway track, and in the process had killed the passengers.
127
For a conviction of manslaughter for a negligent driver, what is the degree of negligence that must be proved?
Gross negligence or a very high degree of negligence.
128
What is provided for in Section 150A CA 61?
Standard of care applicable to persons under legal duties or performing unlawful acts
129
What does Section 150A CA 61 (Standard of care applicable to persons under legal duties or performing unlawful acts) apply to?
It applies to
- The legal duties specified in
duty to provide necessaries / protect from injury
- Duty of parent / guardian to provide necessaries / protect from injury
- Duty of employers to provide necessaries
Abandoning a child under 6
- Duty of a persons doing dangerous acts
- Duty of persons in charge of dangerous things
- Duty to avoid omissions dangerous to life
- And an unlawful act referred to in “Culpable homicide” where the unlawful act relied on requires proof of negligence or is a strict or absolute liability offence
130
For the purposes of Section 150A CA 61 (Standard of care applicable to persons under legal duties or performing unlawful acts) when is a person criminally responsible?
If they omitted to discharge or perform a legal duty OR
Performing an unlawful act
To which this section applies
In circumstances where the omission or unlawful act is a major departure from the standard of care expected of a reasonable person to whom that legal duty applies or who performs that unlawful act
131
What does the “major departure test” require in relation to standard of care?
It requires that the high degree of negligence be met for someone to be criminally responsible for manslaughter by negligent omission to perform or observe any of the legal duties specified under S150A or 160(2)(a) for manslaughter by an unlawful act.
132
Where else does the “major departure test” apply?
Major departure test applies
- Where a negligent omission results in endangerment or injury AND
- To offences of ill treatment or
neglect of a child or vulnerable adult AND
- Failure to protect a child or vulnerable adult
133
When must gross negligence be shown?
Whether the case relates to an unlawful act or an omission
134
What is the test for gross negligence?
The test is objective and the defendants state of mind is not a prerequisite to conviction for manslaughter by gross negligence. All circumstances of the case must be considered and the defendants state of mind may be relevant to whether the was gross negligence.
135
What is “the essence” of gross negligence?
Whether, 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
136
What is the punishment for manslaughter?
Everyone is liable to imprisonment for life - however the judge can take all matters into consideration and may impose any penalty from a fine to life imprisonment.
137
What is provided for under S178 CA 61?
Infanticide
138
Elements of infanticide?
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
- The effect of lactation or
Any disorder consequent upon child birth or lactation
- To such an extent that she should not be held fully responsible
139
What must the killing of a child amount to for infanticide?
It must amount to culpable homicide
140
What else must be established for a charge of infanticide?
You must prove that the mothers mind was disturbed as a consequence of the birth of that child or another child.
141
If the jury believes a woman’s state of mind is due to the effects of childbirth and that woman is charged with murder or manslaughter, what must they do?
Return a special verdict of acquittal on account of insanity caused by childbirth.
142
If the ‘defence’ of infanticide is expected, what can the prosecution do?
File charging documents for both infanticide and murder of an infant. It is then up to the jury to decide on the mothers state of mind.
143
Section 151 - Duty to provide the necessaries and protect from injury - what are the elements
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
- To provide that person with necessaries and
- To take reasonable steps to protect that person from injury
144
Section 152 - Duty of parent or guardian to provide necessaries and protect from injuries - what are the elements?
Everyone 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
- To provide that person with necessaries and
- To take reasonable steps to protect that person from injury
145
Section 153 - Duty of employers to provide necessaries - What are the elements?
Every one who as an employer
Has contracted to provide necessary food, clothing or lodging for any servant or apprentice under the age of 16 years
Who is under a legal duty to provide the same AND
Is criminally responsible for omitting without lawful excuse
To perform such duty if the death of that servant / apprentice is caused OR if his life is endangered OR if his health permanently injured, by such an omission
146
What is the definition of a “vulnerable adult”?
A person unable to withdraw him/herself from the care or charge of another person; by reason of detention, age, sickness, mental disorder or any other caused. This can be permanent or temporary and is a matter for objective determination and should not be based on subjective opinion.
147
What is the definition of “necessaries”?
The necessaries of life which include commodities and services necessary to sustain life, e.g. food, clothing, housing, warmth and medical care
148
What does “duty to protect from injury” mean?
It means to take reasonable steps to protect a vulnerable adult or child from injury
149
What does injury cover?
Not only bodily harm directly caused by other persons but also harm arising from human activities and non-human sources.
150
What does S154 - abandoning a child under 6 - cover?
A person who unlawfully abandons or exposes any child under the age of 6
151
Section 155 - what is the title?
Duty of persons doing dangerous acts
152
Section 155 - Duty of persons doing dangerous acts - what does it outline?
Everyone who undertakes (except for necessity) to administer surgical or medical treatment OR
Do any other lawful act the doing of which is or may be dangerous to life
Is under a legal duty to have AND to use reasonable knowledge, skill and care in doing any such act
AND is criminally responsible for the consequences of omitting without lawful excuse to discharge that duty
153
Section 156 - what is the title?
Duty of persons in charge of dangerous things
154
Section 156 - Duty of persons in charge of dangerous things - what does it outline?
Everyone who has in his charge or under his control
Anything whatever, whether animate or inanimate OR who erects, makes, operates or maintains anything whatever
Which, in the absence of precaution or care, may endanger human life
Is under a legal duty to take reasonable precautions against AND use reasonable care to avoid such danger AND is criminally responsible for the consequences of omitting without lawful excuse to discharge that duty
155
What is the definition for “anything whatever” under S156 ?
It is wide and includes things such as motor vehicles, trains, animals, ships, weapons, machinery and explosives. It has also been held to include machinery used in a mussel factory, scaffolding that collapses due to faulty erection, unfenced holes or other industrial incidents.
156
Section 157 - What is the title?
Duty to avoid omissions dangerous to life
157
Section 157 - Duty to avoid omissions dangerous to life - what does it outline?
Everyone who undertakes to do any act
The omission to do which is or may be dangerous to life
Is under a legal duty to do that act
And is criminally responsible for the consequences of omitting without lawful excuse to discharge that duty
158
Section 163 - What is the title?
Killing by influence on the mind
159
What does “killing by influence of the mind” mean?
If someone was driven into an extreme anxiety state by work or domestic pressures, but had no previous mental or physical ailment, and committed suicide, the person causing the anxiety would not be culpable for the death.
160
Section 164 - What is the title?
Acceleration of death
161
Section 164 - Acceleration of death - what does it outline?
Everyone who by act or omission
Causes the death of another person
Kills that person
Although the effect of the bodily injury cases to that person was merely to hasten his death while labouring under some disorder or disease arising from some other cause
162
What do Sections 165 and 166 deal with?
Causing death, either by not preventing it where it was possible, or by injuring someone so that they need treatment and their injuries cause their death.
163
What is the title of Section 165?
Causing death that might have been prevented
164
What is covered in section 165 – Causing death that might have been prevented?
Everyone who
By act or omission
Causes the death of another person
Kills that person
Although death from that cause might have been prevented by resorting to proper means
165
What is the title of Section 166?
Causing injury the treatment of which causes death
166
What is covered in section 166 – Causing injury the treatment of which causes death?
Everyone who
Causes to another person any bodily injury, in itself of a dangerous nature
From which death results
Kills that person
Although the immediate cause of death be treatment, proper or improper, applied in good faith
167
What does Section 165 impose a liability for?
A person who is responsible for a death if an injury inflicted by him is an operative cause of death (directly or through some secondary condition such as tetanus) even though it could have been prevented with proper treatment.
168
What does liability under Section 165 depend on?
It depends on the mens rea not on the victims subsequent actions
169
What situations are covered for in Section 166 being Causing injury, the treatment of which covers death?
It covers situations where a person dangerously injures the victim and, as a result, treatment is administered to the victim, and that treatment is the immediate cause of the victims death.
170
Who is liable if the victim dies from treatment after a serious injury? (S166) What are they liable for?
The person who caused the injury is liable for the injury and its consequences. The degree of that liability will rely on the mens rea element.
171
What if the victim dies from treatment that was improper following a serious injury?
The person who caused the original injury is still liable for the death, so long as the treatment was applied in good faith.
172
What did the judge hold in R v Kirikiri in relation to S166 causing injury, the treatment of which covers death?
The judge held that it was a matter of fact for the jury to decide whether the defendant had inflicted dangerous bodily injury which remained an operating cause at the time of death.
173
Is the removal of life support a treatment for S166?
No. To withdraw life support does not cause death but removes the possibility of extending the persons life through artificial means.
174
In relation to S166, causing injury, the treatment of which covers death, what were the two rules that were stated by The English Court of Appeal?
Death resulting from any normal treatment used to treat the injury may be treated as being caused by the injury
In other circumstances, it is a question of fact to establish the causal connection between the death and the injury
175
What if a treatment is not considered “normal” under S166?
It means that if treatment is so unusual that it broke the causal chain, the defendant would not be liable for the death.
176
What is the definition of Novus Acus Interviens?
A new intervening act and an act that breaks causation
177
What is an example of an act that breaks causation?
A person is stabbed, the wound was healing but the dr used a drug to which the patient was allergic. The patient then died as a result.
178
What is an example of an act that does not break causation?
If a woman gives her husband arsenic and he is treated in hospital for alcoholism – while the treatment is unsatisfactory, it does not break the chain of causation.
179
What is the fundamental position in New Zealand in relation to S165 and 166?
That the injury must remain a substantial cause of death which grew from the subsequent effects and risks.
180
A person was wounded in a duel and died as a result of the surgical operation made necessary by the wound. In this example what was found?
The person who inflicted the wound was guilty of murder.
181
The deceased had been severely kicked by the defendant. A surgeon gave the deceased some brandy to restore her, but some of it went into her lungs. It was suggested this was the immediate cause of death. In this example, what was found?
The court held that this did not affect the defendants criminal responsibility.
182
It was necessary to operate on a person as a result of an assault on him by the defendant. The person died under the administration of anaesthetic. What was found?
It was held that this did not affect the defendants criminal responsibility.
183
What do sections 179 and 180 deal with?
Suicides and suicide pacts.
184
Section 179 – What is the title?
Aiding and Abetting suicide
185
What are the elements of Section 179 being Aiding and Abetting suicide?
Everyone is liable to imprisonment for a term not exceeding 14 years who –
Incites, counsels or procures any person to commit suicide, if that person commits or attempts to commit suicide in consequence thereof; or
Aids or abets any person in the commission of suicide
186
Section 180 – What is the title?
Suicide pact
187
In circumstances where a person kills another person as part of a suicide pact, what are they liable for?
Manslaughter, not of murder.
188
In circumstances where 2 or more persons form a suicide pact and one or more of them kills themselves, what is any survivor guilty of?
Being a party to a death under a suicide pact. They shall not be convicted of an offence against S179 (Aiding and abetting suicide)
189
What is the definition of a suicide pact?
A common agreement between two or more persons for the death of all of them to occur. Whether or not each is to take his own life or not.
Nothing done by a person who enters into a suicide pact shall be treated as done by them in pursuance of the pack unless it is done when they have a settled intention of dying in pursuance of the pact.
190
What is the definition of aiding and abetting for suicide?
There is a requirement for someone to “do something” in order to assist the suicide of another
An example of this would be giving a tetraplegic an overdose at their request
191
What does Section 179 make it an offence for?
A person to assist another person to commit suicide without the first person having any intention of committing suicide themselves.
192
What is another example of aiding and abetting suicide?
If a terminally ill person asks their partner to help them commit suicide and their partner does.
193
What does Section 180 make an offence of?
It makes it an offence to enter into a suicide pact and only one person dies as a result of an action by another person.
194
What is an example of a suicide pact in which liability remains with the surviving party?
IF both person A and B self-administer a high dosage of morphine and person A dies but B survives. Person B would be guilty of being a party to a death under a suicide pact.
195
Section 181 – What is the title?
Concealing dead body of a child
196
What are the elements of Section 181 being concealing dead body of a child?
Everyone who
Disposes of the dead body of nay child
In any manner with intent to conceal the fact of its birth
Whether the child died before, or during, or after birth.
197
Is the term “child” defined?
No but it is intended to refer to a child of comparatively recent birth.
198
What must the body be prior to disposal?
The body must be dead. If the child was alive when disposed of it may come under murder, manslaughter or infanticide.
199
Does the body of a child have to be found?
No, it is not necessary that the body should be found and identified.
200
When will the requirement that the disposal must be done with the intent of concealing the birth be satisfied?
It may be satisfied if the birth was known to some people but not others. It is sufficient that the intent was to conceal the birth from a particular individual.
201
When is a hearsay statement admissible in a proceeding?
If the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
The maker of the statement is unavailable as a witness or
The judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness.
202
What circumstances are to be considered when determining the reliability of a hearsay statement and its maker?
- The nature of the statement
- The contents 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.
203
What if a witness has died prior to court (hearsay)?
A statement taken from a person who may die can be presented as evidence to court if they are dead at the time of the hearing and reasonable assurance of the statements reliability can be shown.
204
