Murder and Manslaughter Offences

Question 1

Murder defined

Answer 1

167
Murder defined

Culpable homicide is murder if the offender

(a) means to cause the death of the person killed:
(b) 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) 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) 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.

Question 2

Further definition of murder

Answer 2

168
Further definition of murder

(1) Culpable homicide is also murder in each of the following cases, whether the offender means death to ensur or not, or knows that death is likely to ensue or not:

(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 3

Intent

Answer 3

In a criminal law context there are two specific types of intention in an offence. Firstly there must be an intention to commit the act and secondly, an intention to get a specific result.

Question 4

If you are charging an offender with murder under s167 you must show that the defendant:

Answer 4

• 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 5

Recklessly

Answer 5

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

Question 6

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

Answer 6

• 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 7

Where can a person be charged with parties to murder

Answer 7

People who are in the course of carrying out an unlawful purpose when one of them kills someone. The secondary party must know the principal party might do the act that causes death.

Question 8

I respect of parties to the offence it is not necessary to show that

Answer 8

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 9

Punishment of murder

Answer 9

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 10

Presumption in favour of life imprisonment for murder

Answer 10

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 11

Attempt to murder

Answer 11

173
Attempt to murder

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

Question 12

What must the crown prove for an attempted murder charge?

Answer 12

the Crown is responsible for establishing the mens rea and actus rea as set out in s72

Question 13

Definition of attempts

Answer 13

Section 72, Crimes Act 1961 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 14

In respect of an attempt what is the test for proximity?

Answer 14

• 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?

Question 15

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

When does Counselling or attempting to procure murder apply

Answer 16

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.

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.

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.

Question 19

Accessory after the fact

Answer 19

71
Accessory after the fact
(1) 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, in order to enable him to escape after arrest or to avoid arrest or conviction.

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

Question 22

What culpable homicide is included under manslaughter?

Answer 22

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 23

When you come across a killing that is a result of a sudden fight, you need to consider whether there was:

Answer 23

• self-defence

* the requisite mens rea for a murder charge.

Question 24

In a killing in a sudden fight, It is crucial for you to consider these issues if you are to decide the way in which the killing should be viewed:

Answer 24

• 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 25

An English matter, Newbury and Jones outlines a four-point test for proving an unlawful act for manslaughter.

Answer 25

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 26

The situations that may give rise to a charge of manslaughter by negligence are diverse, and include negligence while in charge of or using

Answer 26

trains
factory machinery
mines
motor vehicles
ships or weapons
while administering medical or surgical treatment

Question 27

Example of manslaughter by negligence

Answer 27

it would be no defence against a manslaughter charge to say the deceased agreed to ride on the bonnet of a car you drove dangerously, knowing the deceased was in that position.

Question 28

What is important to note about negligent drivers?

Answer 28

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.

Question 29

Before a conviction can be obtained for manslaughter where one of the sections referred to in s150A(1), Standard of care applicable to persons under legal duties or performing unlawful acts the prosecution must prove

Answer 29

a “very high degree” of negligence or “gross negligence”. The expressions “very high degree of negligence” and “gross negligence” are not defined by statute.

Question 30

Standard of care applicable to persons under legal duties or performing unlawful acts

Answer 30

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 31

The essence of gross neglect as discussed in R v Adomako12 is

Answer 31

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.

Question 32

Punishment of manslaughter

Answer 32

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

Question 33

What are the associated murder charges?

Answer 33

− attempt to murder
− counselling or attempting to procure murder
− conspiracy to murder
− accessory after the fact to murder.