Homicide Law & Defences - CIB013 Flashcards
(95 cards)
1
Q
What is the penalty for attempted murder?
A
- Everyone who attempts to commit murder is liable for a term of imprisonment not exceeding 14 yrs
2
Q
Define R v Tarei? (withdrawing life support).
A
- Withdraw of any form of life support is not “treatment” under S166 CA61.
- To withdraw it does not cause death
- But removes the chance of continuing life by artificial means.
3
Q
Outline S181 CA61 (Concealing a dead body of a child)
A
- Everyone is liable for imprisonment not exceeding 2 yrs
- Who disposes a dead body
- of any child in any manner
- with intent to conceal the fact of its birth
- whether the child died before, during or after birth.
4
Q
In which Court does a youth facing a charge of murder or manslaughter appear?
A
- Charges of murder or manslaughter will be heard in the High Court following the committal process in the Youth Court.
5
Q
A question of law relating to whether the condition is a disease of the mind is answered by who?
A
- Judge
6
Q
What the accused state of mind was at the time of the offence is a question decided by who?
A
- Jury
7
Q
What is held in R v Kamipeli (Incapable of mens Rea)
A
- It does not have to be shown the defendant was incapable of forming the mens rea
- because of their drunken state
- they did not have proper state of mind to be guilty
8
Q
What is the burden of proof for insanity?
A
- The accused is not required to prove the defence of insanity beyond reasonable doubt.
- But only to the satisfaction of the jury on the balance of probabilities.
9
Q
under S153 CA61 what is the relevant age of a person who is employed?
A
- Under 16yrs
10
Q
Where a charge of infanticide is laid who decides on the mothers state of mind?
A
- Jury
11
Q
Before a conviction can be obtained for manslaughter, where one of the sections referred to is S150A(1) CA61, what must the prosecution prove?
A
- A very high degree of negligence or gross negligence.
12
Q
Proximity is a question of law decided by who?
A
- Judge
13
Q
Written notice of an alibi is to be given by the defendant when?
A
- Within 10 working days after the defendant is given notice under S20 of the Criminal Disclosure Act 2008
14
Q
Define R v Cox?
A
- Consent must be full, voluntary, free and informed
- Freely and voluntary given by a person in a position to form a rational judgement
15
Q
As general guideline most offences in the Crimes Act will require an intent (Mens Rea) of some kind. Outline a defence that would therefore be generally available?
A
- The defence of intoxication is available to the defence.
- It is to establish that the defendant did not have the required intent to carry out the offence.
16
Q
Provide an overview of the culpability of a person involved in suicide pacts?
A
- Any survivor of pact is guilty of being party to a death (if a death to another occurs)
17
Q
Outline S25 of CA61 (ignorance of the law)
A
- The fact an offender is ignorant of the law is not an excuse for any offence committed by him.
18
Q
List 4 statutory legal duties in respect of CA61?
A
- Provide the necessaries and protect from injury
- Provide the necessaries as an employer
- Take precautions when in charge of dangerous things, such as machinery
- Avoid omissions that will endanger life.
19
Q
List the difference between Counselling or attempting to commit murder (S174) and conspiracy to murder (S175)?
A
Counselling or attempting to commit murder (S174)
- Requires that the offence is to be committed in NZ
- Only applies if the murder is NOT committed
Conspiracy to murder (S175)
- Murder can take place in NZ or anywhere else
- Applies whether or not the murder was actually committed
20
Q
Section 159(1) & (2) of CA61 define when a child becomes a human being and is therefore able to be murdered under S158. Detail the provisions of S159(1) &(2)?
A
159(1)
- A child becomes a human being
- 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
- Whether the navel string is severed or not
159(2)
- The killing of such a child is homicide if it dies from injuries received before, during or after birth
21
Q
Define homicide under S158 of CA 61
A
- Homicide is the killing of a human being by another
- Directly or indirectly
- By any means whatsoever
22
Q
What is meant by the term “justified”? Provide 2 examples?
A
Justified
- Some acts are justified even if they result in death. When it is justified that party is exempt from criminal and civil liability
eg
- Homicide committed in self-defence S48
- Homicide committed to prevent suicide or commission of an offence S41
23
Q
In general no one is criminally responsible for the killing of another by any influence of the mind. What are the exceptions to this rule?
A
- Wilfully frightening a child under 16 years
- Wilfully frightening a sick person (mentally or physically)
24
Q
What does the matter R v Myatt state about an unlawful act in respect of S160(2)(a) CA61?
A
R v MYATT
- Before any breach of any act, regulation or bylaw would be unlawful
- Under S160 for the purpose of culpable homicide
- It must be an act likely to
- Cause harm to the deceased or to some class of persons
25
Why is attempted murder one of the most difficult offence in the Crimes Act to prove beyond reasonable doubt? State the case law.
R v MURPHY
- It must be shown that the defendant's intention was to commit the offence.
- For attempted murder the Crown must show an actual intent to kill.
26
What are the elements to Accessory after the to murder?
- Knowing any person to have been party to murder
- Receives, comforts, assets that person
or
- Tampers with or actively suppresses evidence against that person
- In order to enable them escape after arrest
or
- Avoid conviction
27
List the elements of S48 CA61?
- Everyone is justified in using
- In the defence of himself or another
- Such force
- In the circumstances as he believes them to be
- Reasonable to use
28
Provide 3 guidelines in respect of consent regarding assault?
- Everyone has a right to consent to a surgical operation
- Everyone has a right to the infliction of force but not involving bodily harm
- No one has a right to consent to their death or injury likely to cause death
29
In common law allegations culpable homicide have been supported where the offenders have caused death by particular circumstances. Name any 4 of these circumstances? AAAH
- Committing arson
- Giving a child an excessive amount of alcohol to drink
- Conducting a illegal abortion
- Giving heroin to the deceased
30
In relation to S160(2)(d) CA61 give 2 practical examples of culpable homicide which has been caused by the victims actions, prompted by the threats or fear of violence? Think Operation JUTLAND
- Jumps or falls out of a window because they fear they will be assaulted
- Jumps into a river to escape an attack and drowns
31
To establish proof of death relation to homicide you must prove 3 keys elements. What are they?
1- Death occurred
2 - Deceased is identified as the person who has been killed
3- The killing was culpable.
32
What is the definition of the period "a year and a day" as outlined in Section 162(2) CA61?
- The period of a year and a day
- Shall be reckoned inclusive
- Of the day on which
- The last unlawfully act
- Contributing to the cause of death took place
33
Section 168(1)(a) CA61 refers to the term "grievous bodily harm" what does this mean and give an example?
GBH- Harm that is really serious
| eg - injury to a vital organ
34
In the test of proximity Simester and Brockbanks (Principle of Criminal Law 224) suggest the following questions should be asked in determining the point at which an act of mere preparation of committing a crime may become an attempt. What are those 2 questions?
1- Has the offender done anything more than getting himself into a position he could actually attempt the offence
or
2- Has the offender actually commenced execution? has he taken steps in the actual crime itself?
35
Give an example when murder might be reduced to manslaughter even though the accused intended to kill or cause GBH?
- The accused is part of a suicide pact. It would normally be murder but reduced
36
What is involuntary manslaughter?
- Unlawful killing
- Death is caused by unlawful act or gross negligence
- In cases of no intention to kill or do GBH.
37
Define Alibi?
- A plea in a criminal charge
- Having been elsewhere
- At the material time
38
What must the defendant include in a notice of alibi?
- Name and address of witness
- If known to the defendant when given the notice
- Any info known that might assist in finding that witness
39
Define culpable homicide S160(1) & (2) CA61
1 - Homicide maybe culpable or not culpable
2 - Homicide is culpable when it consists of the killing of any person
a -By any unlawful act or
b- By an omission without lawful excuse or legal duty or
c- by both combined or
d- By threats or fear of violence, or deception which causes that person to do an act which cause their death
e - wilfully frightening child under 16 years or sick person
40
Define wilfully frightening?
- Intend to frighten or at least be reckless as to this
41
Explain R v HORRY relating to the facts of murder?
- Death should be provable
- By circumstances that are morally certain
- And leave no grounds for reasonable doubt
- The evidence should be clear and compelling
- To convince a jury
- That no rational explanation
- Other than murder
- Can the facts be accounted.
42
What are the legal duties of a parent/guardian under S152 of CA61
- A parent or person in place of a parent
- with actual care of child under 18yrs
- Has a legal duty
- To provide necessaries and
- To protect that child from injury
43
What the elements of S154 CA61 - Abandoning a child under 6 yrs?
- Everyone is liable to imprisonment not exceeding 7yrs
- Who unlawfully abandons or exposes
- Any child under 6 yrs
44
Outline the culpability for children under 10yrs and 10-13yrs?
Under 10yrs
- Have a defence to any charge laid against them
- Even thought they cannot be convicted must still establish if they are guilty or not
10-13yrs
- It must be shown they knew their act was wrong and against the law
- If this cannot be shown
- Child cannot be criminal liable
45
What was held in R v COTTLE? - degree of proof of insanity?
R v COTTLE
- As to the degree of proof
- It is sufficient that the plea
- Is established to the satisfaction of the jury
- On a preponderance of probabilities
- Without excluding all reasonable doubt
46
# Define insanity by completing the sentence.
No person shall be convicted of an offence by reason of an act done or omitted by him when labouring under 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- knowing that the act or omission was morally wrong, having regard to the accepted standards of right and wrong.
47
What was held in R v LIPMAN? In relation to automatism of voluntary intake of alcohol or drugs.
R v LIPMAN
- Where automatism is brought about
- By voluntary intake of alcohol or drugs
- The Courts may be reluctant to accept
- The actions were involuntary or
- The offender lacked intention
48
What is a "Strict liability" offence?
- Offence that does not require an intent
- Only way a defendant can escape such offence
- Is to prove a total absence of fault.
49
What 3 points must be satisfied before a defence of compulsion can be used?
- Person compelled to commit offence by being threatened they would be killed or caused GBH
- Must believe the threats
- And not be party to any association or conspiracy in carrying out the threats
50
Explain entrapment?
- Agent of enforcement body
- Deliberately causes a person to commit an offence
- So person can be prosecuted
51
Give 2 examples where culpable homicide is murder?
- Offender means to cause death of the person
| - Offender means to cause bodily injury that is known to likely cause death or reckless as to that.
52
Define "legal duty"?
- Legal duty refers to those duties
- Imposed by statute or common law
- Including uncodified common law duties
53
What is the required state of mind for S167(b) of CA61? What must you establish for murder?
You must establish that the accused
- Intended to cause bodily harm
- Knew the injury would likely cause death
- Was reckless whether death occurred or not
54
You cannot use the defence of consent to assault in the following cases?
- Aiding suicide
- Bodily harm likely to cause death
- Criminal actions
- Placing someone in a situation where at risk of death or bodily harm
55
Outline R v BLAUE. How an offender finds their victim
R v BLAUE
| - Those who uses violence must take their victims as they find them.
56
A hearsay statement is admissible in any proceeding if?
- The circumstances relating to the statement provide reasonable assurance that the statement is reliable and
- the maker is available as a witness
57
What was held in R v CLANCY? in relation to the best evidence of birth
R v CLANCY
- The best evidence as to the date and place of a child birth
- will normally be provided by
a person attending the birth or the child mother
- production of the birth certificate may add to the evidence but is not necessary.
58
Define automatism?
- A state of blackout
- during which a person is not conscious
- of their actions
- and not in control of them
59
What is Sane and Insane Automatism?
Sane - The result of sleepwalking, a blow to the head or the effects of drugs
Insane - The result of a mental disease
60
What is the Courts view of entrapment?
- The Courts have rejected entrapment as a defence
- Preferring to instead to rely on discretion
- Of the trial judge
- To exclude evidence
- that would operate unfairly against the accused.
61
What is the procedure when alibi witnesses are interviewed? 4 steps
1 - OC case should not interview unless prosecutor requests them to
2 - Advise defence of the likely interview and give them chance to be present
3 - ensure the accused is interview in presence of an independent person if he is not represented
4- Make copy of signed FWS available to the defence via the prosecutor
62
If the defendant intends to call an expert witness during the proceedings what must they disclose to the prosecution?
1 - Any brief of evidence or report provided by the witness
2 - If they are not available a summary of the evidence to be given
3- The information must be disclosed at least 14 days before the date of the hearing
63
What question must be asked for a degree of force under self defence?
- What are the circumstances that the defendant believes exists
- Do you accept that the defendant believes those facts
- is the force used reasonable in the circumstances believe to exist?
64
Can an organisation as opposed to a human being be convicted of murder or manslaughter?
Murray Wright LTD
- No the killing must be done by a human being
- an organisation cannot be convicted as the principle offender.
- An organisation can be convicted to party of manslaughter.
65
Is a body required to prove the death of a person?
No a body is not required. explain R v HORRY
66
Would you be charged with any offence if you fatally injured another player during a rugby game? if so want charge?
- Normally you would not be charged if they died from injuries caused while playing.
- But you would be guilty of manslaughter if your action was considered likely to cause injury.
67
If an offender intents to kill person A but inadvertently strikes the fatal blow to person B is the offender still guilty of murder?
Yes S167(c) states that if the offender means to cause death but by mistake or accidents kills another then it is still murder.
68
Define voluntary manslaughter?
- Suicide pact reduced where the person intended to kill or case GBH
69
When considering what charge to lay where someone has been killed in a sudden fight what issues do you need to consider?
1 - Was there self defence?
| 2 - The requirements for mens Rea for a murder/manslaughter charge
70
What types of things fall into the category of dangerous things discussed in S156 of the CA61?
- motor vehicles
- trains
- ships
- weapons
71
In one incident a man stabs a woman repeatedly and the same things happens across town in a unrelated incident. As a result both women suffer heart failure in an unpredictable reaction to the anaesthetic, however the second woman although she suffers the same reaction and with the same result, wears a medic alert bracelet carrying information about her known heart condition and reaction to anaesthetic. Is there any difference in these cases? Is anybody held legally responsible for either of their deaths? if so who and what would the charge be?
- The first woman dies of heart attack where all precautions were taken.
- The stabber is liable not medial staff
- The stabber would not liable for the woman wearing the medic alert bracelet.
- The medical staff actions would be investigate under S155 CA61 duty of persons doing dangerous acts
72
Is a person who helps another person commit suicide criminally liable for their actions?
- S179 it is an offence to assist another person commit suicide without the intention of person A committing suicide themselves
- S180 it is an offence to enter a suicide pact and only one person dies
- The law does not recognise a consent to their own death
73
What does protected from criminal responsibility mean?
- Not guilty of an offence'
| - but civil liability may occur
74
What type of defence does a child under 10 years have?
An absolute defence
75
What is the standard proof required to prove a defence of insanity to the satisfaction of the jury?
- Balance of probabilities
76
Is the term disease of the mind a question of fact for the jury to decide or a question of law for the judge to decide?
Law for the judge
77
What are the two types of automatism?
Sane and insane
78
What is the likely result of a trial where the defendant is found to have been in a state of automatism from intoxication?
Complete acquittal
79
What is compulsion?
- An act of compelling someone to do something against their will
80
In relation to compulsion what does immediate mean?
- At the scene from a person present at the time
81
Who decides whether there is evidence of self defence?
The judge
82
What people are consider unable to give consent?
- A child
- A person unable to rationally understand the implication of their defence
- Someone subject to force, threats or fraud
83
What in effect is a defence of mistake?
- A defence of mistake is a denial of intent
84
What was held in R v MANE?
- 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 offence
- was fully completed before the homicide was completed
85
Define the term Suicide pact under S180(3) CA61
- A common agreement between 2 or more people
- having its object the death of all of them
- whether or not each take their own life
- but nothing done by a person
- shall be taken as done by him
- in engagement of the pact
- unless it is with the intention of dying in the engagement of the pact
86
Define Attempts under S72(1) CA61?
- everyone who
- having the intent to commit an offence
- does or omits an act
- for the purpose of accomplishing his object
- is guilty of attempting to commit the offence
- whether or not it was possible
- to commit the offence or not
87
DPP v Newbury and Jones states the 4 point test for proving an unlawful act for manslaughter?
- Defendant intentionally did an act
- Act is unlawful
- Act is dangerous
- Act caused death
88
What is the penalty for person who enters a suicide pact?
- Imprisonment not exceeding 5 years
89
For a statement to be considered admissible as evidence under S18(1) of the evidence act 06 the courts must be satisfied of the content and person who made it. What are 3 circumstances to be considered?
- Nature and contents of the statement
- Circumstances relating to the making of it
- The accuracy of the observation of the person
90
As general rule all child offenders will be referred to who until they reach the age of 14 years?
- Care and protection co-ordinater
91
Police v Lavelle
Police v Lavelle
- It is allowed
- for an undercover officer
- to provide an opportunity
- for someone who is ready and willing to offend
- as long as the officer doesn't initiate
- the persons interest or willingness to offend
92
Outline the subjective and objective tests relating to S48 of CA61?
- Once the accused has decided that force was required
- being a subjective view of the circumstance as he believed them
- s48 then introduces a test of reasonableness
- which involves a objective view of the degree and manner of force used.
93
What is infanticide and the penalty?
- A charge against a mother
- who killed her child under 10 years
- in a manner that is culpable homicide
- as a result of her mind
- being unbalance from the effects
- of giving birth or lactation
- liable for term of imprisonment not exceeding 3 years
94
Explain what is meant in 160(2)(b) an omission without lawful excuse or legal duty?
- This cover cases where nothing is done when there is legal duty to act
- and certain cases of positive conduct by a failure to discharge a legal duty and duty of care
95
What is the key difference between murder and manslaughter?
- The mental element must be establish to support the charge
| - Common law draws further distinction between voluntary and involuntary manslaughter
