Murder and Manslaughter Offences

Question 1

What is the legal definition of Murder?

Answer 1

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 any person, though he may have desired that his object should be effected without hurting any one.

168 Further definition of murder
(1) Culpable homicide is also murder in each of the following cases, whether the offender means or does not mean death to ensue, or knows or does not know that death is likely to ensue:
(a) If he 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, and death ensues from such injury:
(b) If he administers any stupefying or overpowering thing for any of the purposes aforesaid, and death ensues from the
effects thereof:
(c) 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.

Question 2

How do we assess Intent?

Answer 2

Deliberate act:
“Intent” means that act or omission must be done deliberately. The act or omission must be more than involuntary or accidental.

Intent to produce a result:
The second type of intent is an intent to produce a specific result. In this context result means “aim, object, or purpose”. Simester and Brookbanks4

Question 3

What do you need to prove if charging someone with Murder?

Answer 3

If you are charging an offender with murder under s167 you must show that the defendant:
• intended to cause death, or
• knew that death was likely to ensue, or
• was reckless that death would ensue.

If such intent is not present the offence is manslaughter unless it falls within the provisions of infanticide (section 178).

Question 4

What is Recklessness in relation to Murder?

Answer 4

Acting “recklessly” involves consciously and deliberately taking an unjustifiable risk.

It must be proved not only that the defendant was aware of the risk and proceeded regardless (a subjective test), but also that it was unreasonable for him to do so (an objective test).

To show that the defendant’s state of mind meets the provisions of s167(b), you must 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

Question 5

Killing in pursuit of an unlawful object

Answer 5

This is assessed by the court on the following issues:
• whether the defendant knew the acts were likely to cause death, and
• whether the defendant’s original intent amounted to an unlawful object.

The distinction is made between an unlawful object and an object that may be illicit or immoral. Where the object is unlawful, the actions of the defendant are covered by paragraph (d) provided the defendant knows that their action is likely to cause somebody’s death.

The jury decides whether the defendant had such knowledge at the time by drawing inferences from all the circumstances, including what the defendant said and did at the time.

Question 6

Definition of Parties to?

Answer 6

66 Parties to offences
(2) Where 2 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.

Question 7

How does joint responsibility work for s168

Answer 7

Whether reliance is placed on subsection (1) or subsection (2) of s66, it is not necessary to show that the secondary party knew the death was a probable consequence of their carrying out the primary purpose. Rather it must be shown that the secondary party knew 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.

Question 8

what is the punishment for Murder?

Answer 8

172 Punishment of murder
(1) Every one who commits murder is liable to imprisonment for life.
(2) Subsection (1) is subject to section 102 of the Sentencing Act 2002.

Question 9

What is s102 of the Sentencing Act?

Answer 9

102 Presumption in favour of life imprisonment for murder
(1) 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.
(2) If a court does not impose a sentence of imprisonment for life on an offender convicted of murder, it must give written reasons for not doing so.

Question 10

What is Attempted Murder?

Answer 10

Section 173 creates a separate offence of attempted murder. With an attempt to murder charge, the Crown is responsible for establishing the mens rea and actus rea as set out in s72:

Definition of attempts
(1) Every one 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, whether in the circumstances it was possible to commit the offence or not.
(2) The question whether an act done or omitted with 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.
(3) An act done or omitted with intent to commit an offence may constitute an attempt if it is immediately or proximately connected with the intended offence, whether or not there was any act unequivocally showing the intent to commit that offence.

Question 11

What intent must be shown for Attempted Murder?

Answer 11

The requirement for “intent” in section 72(1) suggests that only an intention to commit the offence will be sufficient and that there cannot be an attempt where an offence is defined solely in terms of recklessness or negligence.

Therefore, this requirement on the Crown means that attempted murder is one of the most difficult offences in the Crimes Act to prove beyond a reasonable doubt.

Question 12

What is the rule normally used to assess how close to Murder, the attempted murder is?

Answer 12

Generally, to prove an attempt the defendant must have done or omitted to do some act(s) that is/are sufficiently proximate (close) to the full offence. Effectively, the defendant must have started to commit the full offence and have gone beyond the phase of mere preparation – this is the “all but” rule.

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.

Question 13

What is the test for Proximity?

Answer 13

Simester and Brookbanks9 suggests the following questions should be asked in determining the point at which 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?
If the answer to either question is “yes” then we can say there has been an attempt as a matter of law. If not, the conduct can be classed as preparation and is not an offence.

Question 14

Punishment of attempted murder

Answer 14

173 Attempt to murder
Every one who attempts to commit murder is liable to imprisonment for a term not exceeding 14 years.

Question 15

What is the offence for Counselling or attempting to procure murder

Answer 15

174 Counselling or attempting to procure murder
Every one 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.

Question 16

Does section 174 apply if the Murder is committed?

Answer 16

Section 174 applies where murder is not in fact committed. If the person incited or counselled commits murder, the parties’ provisions of s 66(1)(d) will apply to the inciter or counsellor.

Where murder is attempted but not in fact committed, an inciter, counsellor or procurer will be liable as a party under s 66(1)(d) to an attempt to murder under s 173.

Question 17

Conspiracy to murder

Answer 17

175 Conspiracy to murder
(1) Every one 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.
(2) For the purposes of this section, the expression To murder 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.

Section 175 may apply regardless of whether murder is committed or not.

Question 18

Accessory after the fact to murder`

Answer 18

176 Accessory after the fact to murder
Every one is liable to imprisonment for a term not exceeding 7 years who is an accessory after the fact to murder.

The definition of an accessory after the fact is given in section 71(1) of the Crimes Act 1961

Question 19

Does Culpable homicide always amount to murder?

Answer 19

Except in cases of infanticide, culpable homicide that does not amount to murder is treated as manslaughter. As mentioned in Chapter 1, the key difference between manslaughter and murder depends on the mental element that must be established to support the charge.

Question 20

What is voluntary Manslaughter?

Answer 20

Mitigating circumstances, such as a suicide pact, reduce what would otherwise be murder to manslaughter, even though the defendant may have intended to kill or cause grievous bodily harm.

Question 21

What is Involuntary manslaughter?

Answer 21

Covers those types of unlawful killing in which the death is caused by an unlawful act or gross negligence. In such cases there has been no intention to kill or to cause grievous bodily harm.

Manslaughter, then, includes culpable homicide that:
• does not come within s167 or s168
• comes within ss167 and 168, but is reduced to manslaughter because the killing was a part of a suicide pact as defined in s180(3) of the Crimes Act 1961.

Question 22

Killing someone in a sudden fight

Answer 22

When you come across a killing that is a result of a sudden fight, you need to consider whether there was:
• self-defence
• the requisite mens rea for a murder charge.

It is crucial for you to consider these issues if you are to decide the way in which the killing should be viewed:
• If the homicide can be justified as having arisen out of self-defence (s48) the proper verdict is 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 section 167, the proper verdict is manslaughter.

Question 23

How do you Prove Manslaughter by unlawful act?

Answer 23

Section 160(2) deals with deaths that occur by way of an unlawful act.

An English matter, Newbury and Jones outlines a four-point test 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

Question 24

What is Manslaughter by negligence?

Answer 24

The situations that may give rise to a charge of manslaughter by negligence are diverse, and include negligence while in charge of or using trains, factory machinery, mines, motor vehicles, ships or weapons, or while administering medical or surgical treatment.

Remember that in many instances the defendant will have been engaged in a dangerous act or in charge of a dangerous thing, so you need to follow the standards set out in s155 and 156 to establish what, if any, negligence there has been.

Question 25

Can Negligent Drivers be convicted of Manslaughter?

Answer 25

Juries have been reluctant to convict negligent drivers of manslaughter, so alternative offences have been formulated. These are contained in s36A, 38, 39 and 39AA of the Land Transport Act 1998 and relate to aggravated careless, dangerous and reckless driving causing death.

These charges carry lesser penalties. Consult with Legal Section to decide what would be the most appropriate charge. In many cases there is little point charging the person with manslaughter, as the driver may receive a lesser penalty than, for example, the maximum penalty of 10 years contained in s36AA of the Land Transport Act 1998.

On occasions, the particular circumstances surrounding the death may include a number of aggravating contributory factors that may indicate that a charge of manslaughter is preferable. In such cases, consult with Legal Section for guidance. It may be appropriate to file a separate charging document under the Land Transport Act 1998.

Question 26

What is the legislation behind gross negligence?

Answer 26

150A Standard of care applicable to persons under legal duties or performing unlawful acts
(1) This section applies in respect of—
(a) the legal duties specified in any of sections 151, 152, 153, 155, 156, and 157; and
(b) an unlawful act referred to in section 160 where the unlawful act relied on requires proof of negligence or is a strict or absolute liability offence.
(2) For the purposes of this Part, a person is criminally responsible for omitting to discharge or perform a legal duty, or performing an unlawful act, to which this section applies only if, in the circumstances, 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.

Question 27

What is the ‘Major Departure’ test?

Answer 27

The ‘major departure’ test in s 150A(2) requires a high degree of negligence, corresponding to the common law standard of gross negligence, if a person is to be criminally responsible under s 160(2)(b) for manslaughter by negligent omission to perform or observe any of the legal duties specified in s 150A(1)(a) or under s 160(2)(a) for manslaughter by an unlawful act requiring proof of negligence or imposing strict or absolute liability.

The ‘major departure’ test also applies where a negligent omission results in endangerment or injury contrary to s 153(2). See also ss 195(1) and 195A(1)(a)(ii) which, as from 19 March 2012, extend the ‘major departure’ test to the offences of ill-treatment or neglect of a child or a vulnerable adult and failure to protect a child or vulnerable adult.

Question 28

What is the objective test for gross negligence?

Answer 28

The test to be applied in determining whether an defendant has been negligent, and whether the negligence has been a major departure, is an objective test:

The test of gross negligence is objective and that the defendant’s state of mind is not a prerequisite to conviction for manslaughter by gross negligence. All the circumstances of the case must be considered and a defendant’s state of mind may be relevant to whether there was gross negligence. This may be more readily found if, for example, the defendant knowingly ran a risk or was indifferent to an obvious risk of death.

Question 29

What is the Punishment of manslaughter?

Answer 29

177 Punishment of manslaughter
(1) Every one who commits manslaughter is liable to imprisonment for life.
However, the judge, taking all matters into consideration, may impose any penalty from a fine to life imprisonment, depending on the circumstances.