Flashcards in Homicide law and defences 013 Deck (101)
What three criteria are used to test the degree of force used?
- What are the circumstances that the defendant genuinely believes exist (whether or not mistaken)?
- Do you accept that the defendant genuinely believed those facts?
- Is the force used reasonable in the circumstances believed to exist?
R v Harpur
The Court may have regard to the conduct viewed cumulatively up to the point when the conduct in question stops...the defendant's conduct may be considered in its entirety. Considering how much remains to be done is always relevant, though not determinative.
s71(1), CA 1961
An accessory after the fact to an offence is one who, knowing any person to have been a party to the offence, receives, comforts, or assists that person or tampers with or actively suppresses any evidence against him or her, in order to enable him or her to escape after arrest or to avoid arrest or conviction.
R v Mane (accessory after the fact)
Short version: To be considered an accessory the acts done by the person must be after the completion of the offence.
Long version: For a person to be an accessory the offence must be complete at the time of the criminal involvement. One cannot be convicted of being an accessory after the fact of murder when the actus reus of the alleged criminal conduct was wholly completed before the offence of homicide was completed.
What is an offence called that does not require an intent and how can a defendant escape liability for such an offence?
It's called a strict liability offence and the only way to escape liability is to prove total absence of fault.
In what situations might intoxication be a defence?
- Where the intoxication causes a disease of the mind so as to bring s23 into effect
- If intent is required as an essential element and the drunkenness is such that the defence can plead a lack of intent
- Where the intoxication causes a state of automatism (complete acquittal)
A child aged 10-13 yrs is alleged to have committed murder or manslaughter.
In what court are charges filed?
In what court will the first appearance be?
To what court does the case automatically transfer?
What are the acts in s168(1)(b) and (c)?
(b) If he or she administers any stupefying or overpowering thing
(c) If he or she by any means wilfully stops the breath of any person
Explain the s48 tests.
Subjective - the defendant's decision that force is required based on his subjective view of the circumstances
Objective - the reasonableness of the degree and manner of force used
When charging someone as a party to murder under s66(1) or (2), what must be shown in regards to the secondary party's knowledge?
It is not necessary to show that they knew the death was a probable consequence of carrying out the primary purpose. It must be shown that they knew it was a probably consequence that the principal might do an act that would, if death ensued, bring their conduct within the terms of s168.
Who decides whether a particular condition is a disease of the mind?
Define the term 'mistake' as a defence.
Ignorance as to matters of fact
Explain the only 3 situations in which proceedings may lawfully be commenced under the Criminal Procedure Act 2011 against a child alleged to have committed an offence in s272(1), CYPF Act 1989.
(a) where the child is of or over the age of 10 years, and the offence is murder or manslaughter:
(b) where the child is aged 12 or 13 years, and the offence is one (other than murder or manslaughter) for which the maximum penalty available is or includes imprisonment for life or for at least 14 years:
(c) where the child is aged 12 or 13 years and is a previous offender under subsection (1A) or (1B), and the offence is one (other than murder or manslaughter) for which the maximum penalty available is or includes imprisonment for at least 10 years but less than 14 years.
Describe 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.
According to s163, noone is criminally responsible for the killing of another by any influence on the mind alone or by any disorder or disease arising from such influence, with two exceptions. What are those exceptions?
Wilfully frightening a child under the age of 16 years or a sick person
Whenever a defendant puts forward an alibi under s22(1) the OC case must ensure what are prepared on the witness?
QHA and active charges report
R v Forrest and Forrest
The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victim's age.
What are the intents in s168?
If he or she means to cause grievous bodily injury for the purpose of
- facilitating the commission of any of the offences mentioned in subsection (2) of this section, or
- facilitating the flight or avoiding the detection of the offender upon the commission or attempted commission thereof, or
- for the purpose of resisting lawful apprehension in respect of any offence whatsoever
175 Conspiracy to murder
(1) Everyone is liable to imprisonment for a term not exceeding 10 years who conspires or agrees with any person to murder any other person, whether the murder is to take place in New Zealand or elsewhere.
s181, CA 1961
181 Concealing dead body of child
Every one is liable to imprisonment for a term not exceeding 2 years who disposes of the dead body of any child in any manner with intent to conceal the fact of its birth, whether the child died before, or during, or after birth
s174, CA 1961
174 Counselling or attempting to procure murder
Everyone is liable to imprisonment for a term not exceeding 10 years who incites, counsels, or attempts to procure any person to murder any other person in New Zealand, when that murder is not in fact committed.
R v Codere
The nature and quality of the act means the physical character of the act. The phrase does not involve any consideration of the accused's moral perception nor his knowledge of the moral quality of the act. Thus a person who is so deluded that he cuts a woman's throat believing that he is cutting a loaf of bread would not know the nature and quality of his act.
In the case of a death from lawful games or contests in what situation would a contestant possibly be found guilty of manslaughter?
If the contestant causes the death of another by an act that is likely to cause serious injury.
Explain the element of immediacy in s24. (Not verbatim)
The threats must be operating on the person's mind at the time of the act and be so grave that they might well have caused a reasonable person placed in the same situation to act in the same way.
When there is a killing in a sudden fight, outline the different ways in which the killing could be viewed.
- Homicide could be justified as having arisen out of self-defence (s48). Proper verdict would be an acquittal.
- If the fact there was a fight negates that the defendant had the required mens rea to bring a charge of murder within s167 the proper verdict is manslaughter.
R v Murphy (proving an attempt )
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.
What are the two questions suggested by Simester and Brookbanks as a test for proximity?
- Has the offender done anything more than getting himself into a position from which he could embark on an actual attempt?
- Has the offender actually commenced execution; that is to say, has he taken a step in the actual offence itself?
R v Myatt
Before a breach of any Act, regulation or bylaw would be an unlawful act under s160 for the purposes of culpable homicide it must be an act likely to do harm to the deceased or to some class of persons of whom he was one.
Definition of automatism in R v Cottle
Doing something without knowledge of it and without memory afterwards of having done it - a temporary eclipse of consciousness that nevertheless leaves the person so affected able to exercise bodily movements.