Flashcards in Homicide law and defences 013 Deck (101)
List the three main types of culpable homicide.
Murder, manslaughter, infanticide
What are the critical factors to consider when deciding whether a charge should be murder or manslaughter?
Whether the offender intended to:
- kill the person or
- cause bodily injury that the offender knew was likely to cause death
s158, CA 1961
s158 Homicide defined
Homicide is the killing of a human being by another, directly or indirectly, by any means whatsoever.
Can an organisation be convicted of murder or manslaughter?
An organisation can be convicted as a party to manslaughter (s66(1)).
For murder, an organisation cannot be convicted either as a principal offender or a party because the offence carries a mandatory life sentence.
Murray Wright Ltd (case law)
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.
When does a child become a human being according to s159(1), CA 1961?
159 Killing of a child
(1) A child becomes a human being within the meaning of this Act when it has completely proceeded in a living state from the body of its mother, whether it has breathed or not, whether it has an independent circulation or not, and whether the navel string is severed or not.
s160(2), CA 1961
s160 Culpable homicide
(2) Homicide is culpable when it consists in the killing of any person
(a) By an unlawful act or
(b) By an omission without lawful excuse to perform or observe any legal duty or
(c) By both combined or
(d) By causing that person by threats or fear of violence or by deception to do an act which causes his death or
(e) By wilfully frightening a child under the age of 16 years or a sick person.
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.
Explain the test contained in s150A(2), CA 1961.
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.
What are the four questions posed in R v Tomars relating to s160(2)(d)?
1. Was the deceased threatened by, in fear of or deceived by the defendant?
2. If they were, did such threats, fear or deception cause the deceased to do the act that caused their death?
3. Was the act a natural consequence of the actions of the defendant, in the sense that a reasonable and responsible person in the defendant's position at the time could reasonably have foreseen the consequences?
4. Did these foreseeable actions of the victim contribute in a significant way to his death?
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.
What must be done to establish/prove the death?
- death occurred
- deceased is identified as the person who has been killed
- the killing is culpable
R v Horry (where a body is not located)
Death should be provable by such circumstances as render it morally certain and leave no ground for reasonable doubt - that the circumstantial evidence should be so cogent and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for.
Explain the time limits outlined in s162, CA 1961.
(1) No one is criminally responsible for the killing of another unless the death takes place within a year and a day after the cause of death.
(2) The period of a year and a day shall be reckoned inclusive of the day on which the last unlawful act contributing to the cause of death took place.
(3) Where the cause of death is an omission to fulfil a legal duty, the period shall be reckoned inclusive of the day on which such omission ceased.
(4) Where death is in part caused by an unlawful act and in part by an omission, the period shall be reckoned inclusive of the day on which the last unlawful act took place or the omission ceased, whichever happened last.
s167, CA 1961
167 Murder defined
Culpable homicide is murder in each of the following cases:
(a) If the offender means to cause the death of the person killed:
(b) If the offender means to cause to the person killed any bodily injury that is known to the offender to be likely to cause death, and is reckless whether death ensues or not:
(c) If the offender means to cause death, or, being so reckless as aforesaid, means to cause such bodily injury as aforesaid to one person, and by accident or mistake kills another person, though he does not mean to hurt the person killed:
(d) If the offender for any unlawful object does an act that he knows to be likely to cause death, and thereby kills the person, though he may have desired that his object should be effected without hurting anyone.
What are the two types of intention in an offence?
An intention to commit the act and an intention to get a specific result.
If you are charging an offender with murder under s167, what must you show in relation to the offender's intent to cause death?
- intended to cause death or
- knew that death was likely to ensue or was reckless that death would ensue
R v Harney re recklessness
Recklessness means the conscious and deliberate taking of an unjustified risk. In New Zealand it involves proof that the consequences complained of could well happen, together with an intention to continue the course of conduct regardless of the risk.
What needs to be established to show that the defendant's state of mind meets the provisions of s167(b)?
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
R v Piri
Recklessness here involves a conscious, deliberate risk taking. The degree of risk of death foreseen by the accused under either s167(b) or (d) must be more than negligible or remote. The accused must recognise a "real or substantial risk" that death would be caused.
R v Desmond
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.
s66(2), CA 1961
66 Parties to offences
(2) Where two or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose.
s66(1), CA 1961
(1) Every one is a party to and guilty of an offence who—
(a) actually commits the offence; or
(b) does or omits an act for the purpose of aiding any person to commit the offence; or
(c) abets any person in the commission of the offence; or
(d) incites, counsels, or procures any person to commit the offence.
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.
s102(1), Sentencing Act 2002
An offender who is convicted of murder must be sentenced to imprisonment for life unless, given the circumstances of the offence and the offender, a sentence of imprisonment for life would be manifestly unjust.
s72(1), CA 1961
Everyone who, having an intent to commit an offence, does or omits and act for the purpose of accomplishing his object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.
R v Murphy
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.
Explain the term 'sufficiently proximate'.
The defendant must have started to commit the full offence and have gone beyond the phase of mere preparation.
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.
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?
What is the punishment for attempted murder?
s173 - Everyone who attempts to commit murder is liable to imprisonment for a term not exceeding 14 years
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.
What would be the appropriate charge for someone who incites, counsels or procures where murder is attempted but not committed. Include act and section.
Party to Attempt to Murder
s173 and 66(1)(d), CA 1961
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.
s176, CA 1961
s176 Accessory after the fact to murder
Everyone is liable to imprisonment for a term not exceeding 7 years who is an accessory after the fact to murder
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
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.
Identify and explain the two different types of manslaughter in common law.
Voluntary manslaughter - mitigating circumstances (eg. suicide pact) reduce what would otherwise be murder to manslaughter even though defendant may have had intent to kill or cause GBH.
Involuntary manslaughter - Death is caused by an unlawful act or gross negligence. No intent to kill or cause GBH.
When you come across a killing that is a result of a sudden fight, what needs to be considered?
Whether there was
- the requisite mens rea for a murder charge
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.
What is the four point test outlined in Newbury and Jones for proving an unlawful act for manslaughter?
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
What is the punishment for manslaughter?
Everyone who commits manslaughter is liable to imprisonment for life.
s178(1), CA 1961
Where a woman causes the death of any child of hers under the age of 10 years in a manner that amounts to culpable homicide, and where at the time of the offence the balance of her mind was disturbed, by reason of her not having fully recovered from the effect of giving birth to that or any other child, or by reason of the effect of lactation, or by reason of any disorder consequent upon childbirth or lactation, to such an extent that she should not be held fully responsible, she is guilty of infanticide and not of murder or manslaughter, and is liable to imprisonment for a term not exceeding three years.
In charges of infanticide, who decides on the mother's state of mind?
Define the term 'vulnerable adult'.
A person unable, by reason of detention, age, sickness, mental impairment, or any other cause, to withdraw himself or herself from the care or charge of another person.
s154, CA 1961
154 Abandoning child under 6
Every one is liable to imprisonment for a term not exceeding 7 years who unlawfully abandons or exposes any child under the age of 6 years.
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
s165, CA 1961
165 Causing death that might have been prevented
Every one who by any 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.
s166, CA 1961
166 Causing injury the treatment of which causes death
Every one 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.
Outline R v Blaue. What was the finding in this case?
The victim (JW) had been stabbed but refused blood transfusion on religious grounds. Despite warning she persisted and died the following day. Cause of death was bleeding into pleural cavity caused by stabbing. Appeal against conviction of manslaughter on ground that her refusal was unreasonable and broke chain of causation...dismissed.
R v Blaue
Those who use violence must take their victims as they find them.
What was held in R v Tarei in regards to life support? (Not verbatim)
The withdrawal of any form of life support system is not 'treatment' under s166, CA 1961. To withdraw life support does not cause death but removes the possibility of extending the person's life through artificial means.
What were the two rules stated by The English Court of Appeal in R v Jordan?
- Death resulting from any normal treatment employed to deal with a felonious injury may be regarded as caused by the injury.
- In other circumstances it is a question of fact to establish a causal connection between the death and the felonious injury,
Define the term 'novus actus interviens'.
[Latin: a new intervening act] An intervening act that breaks the chain of causation.
Outline R v Bristowe.
A woman placed weed killer in beer bottle to be drunk by her husband. Husband became ill and was treated in hospital for alcoholism over five days then died. Death found to be due to arsenic and Court ruled that causal chain of responsibility was not broken by unsatisfactory treatment.
s179(1), CA 1961
179 Aiding and abetting suicide
(1) Every one is liable to imprisonment for a term not exceeding 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) and (2), CA 1961
180 Suicide pact
(1) Every one who in pursuance of a suicide pact kills any other person is guilty of manslaughter and not of murder, and is liable accordingly.
(2) Where 2 or more persons enter into a suicide pact, and in pursuance of it 1 or more of them kills himself or herself, any survivor is guilty of being a party to a death under a suicide pact contrary to this subsection and is liable to imprisonment for a term not exceeding 5 years; but he or she shall not be convicted of an offence against section 179.
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
Define the term 'justified'.
The person is not guilty of an offence and is not liable civilly.
Define the term 'protected from criminal responsibility'.
The person is not guilty of an offence but civil liability may still arise.
Outline the defences for children including section.
21 Children under 10
(1) No person shall be convicted of an offence by reason of any act done or omitted by him or her 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 or her when of the age of 10 but under the age of 14 years, unless he or she knew either that the act or omission was wrong or that it was contrary to law.
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.
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.
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 was held in R v Clancy in relation to evidence of age? (Not verbatim)
The complainant's birth certificate was not produced, however it was held that in that case evidence of the complainant's date of birth given by her mother was sufficient.
s23(2), CA 1961
(2) No person shall be convicted of an offence by reason of an act done or omitted by him or her when labouring under natural imbecility or disease of the mind to such an extent as to render him or her 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.
R v Cottle re the defence of insanity
As to degree of proof, it is sufficient if the plea is established to the satisfaction of the jury on a preponderance of probabilities without necessarily excluding all reasonable doubt.
R v Clark re insanity
The decision as to an accused's insanity is always for the jury and a verdict inconsistent with medical evidence is not necessarily unreasonable. But where unchallenged medical evidence is supported by the surrounding facts a jury's verdict must be founded on the evidence which in this case shows that the accused did not and had been unable to know that his act was morally wrong.
Outline M'Naghten's rules.
If a person is insane they were acting under such a defect of reason from a disease of the mind that they did not know:
- the nature and quality of their actions OR
- that what they were doing was wrong.
Who decides whether a particular condition is a disease of the mind?
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.
A state of total blackout during which a person is not conscious of their actions and not in control of them.
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.
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.
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)
What does R v Kamipeli say about what is required for intoxication to succeed as a defence? (Not verbatim)
You just need to establish reasonable doubt about the defendant's required state of mind at the time of the offence.
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.
s25, CA 1961
25 Ignorance of law
The fact that an offender is ignorant of the law is not an excuse for any offence committed by him.
What is compulsion or duress?
The act of compelling a person to do something against their will.
Compulsion, s24(1), CA 1961
(1) 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 or she believes that the threats will be carried out and if he or she is not a party to any association or conspiracy whereby he or she is subject to compulsion
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.
Outline R v Joyce re compulsion and the findings.
Three offenders, Pihema, Munro and Joyce, went to Auckland service station. Pihema, with firearm, entered alone and demanded money. There was a struggle and attendant shot. All three charged with agg robbery. One defence from Joyce was compulsion. Pihema pointed rifle at him and threatened to shoot if he didn't cooperate. Pihema inside service station while Joyce outside. Joyce therefore not threatened with immedate death or GBH by person present.
R v Joyce
The Court of Appeal decided that the compulsion must be made by a person who is present when the offence is committed.
Define the term 'mistake' as a defence.
Ignorance as to matters of fact
Explain the New Zealand courts' attitude towards the defence of entrapment.
The courts have rejected entrapment as a defence per se, preferring instead to rely on the discretion of the trial judge to exclude evidence that would operate unfairly against the defendant.
Police v Lavelle
Police v 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.
s48, CA 1961
48 Self-defence and defence of another
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.
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
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?
s62, CA 1961
62 Excess of force
Every one authorised by law to use force is criminally responsible for any excess, according to the nature and quality of the act that constitutes the excess.
Who decides whether there is evidence of self-defence?
Define the term 'alibi'.
The plea in a criminal charge of having been elsewhere at the material time: the fact of being elsewhere.
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
If the prosecutor asks the OC case to interview an alibi witness, outline the procedure to be followed.
1 - Advise defence counsel of proposed interview and provide opportunity to be present
2 - If defendant not represented ensure they are interviewed in presence of independent person
3 - Make copy of signed statement available to defence through prosecutor. Any info that reflects on credibility of alibi witness can be withheld.
If the defendant intends to call an expert witness, what must they disclose to the prosecutor and in what time frame?
Any brief of evidence to be given or any report provided by that witness OR if that brief or any such report not available, a summary of evidence to be given and conclusion of any report provided.
Must be disclosed at least 10 working days before date of trial or any further time allowed by court.
A hearsay statement is only admissible in a proceeding if certain conditions are met. What are those conditions and where are they found?
s18(1), Evidence Act 2006
(1) A hearsay statement is admissible in any proceeding if
(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable, and
(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.
What are circumstances that need to be considered under s16(1), Evidence Act 2006?
- nature of the statement
- contents of the statement
- 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
Crimes Act definition of unlawful act.
A breach of any Act, regulation, rule or bylaw (s2, CA 1961)
This covers cases where nothing is done when there is a legal duty to act, or sometimes positive conduct followed by failure to discharge a legal duty. If death results it's manslaughter (if sufficient fault) or murder (if requisite mens rea).
Give three examples of culpable homicide caused by actions prompted by threats, fear of violence or deception.
- 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
What were the findings in R v Ranger (not verbatim).
If this defendant did really think that the lives of herself and her son were in peril because of the deceased, enraged after the struggle, might attempt to shoot them with a rifle near at hand, then it would be going too far, we think, to say that the jury could not entertain a reasonable doubt as to whether a pre-emptive strike with a knife would be reasonable force in all the circumstances.
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