Murder and Manslaughter Offences

Question 1

define murder

Answer 1

s167 - murder defined

culpable homicide is murder in each of the following cases:

a) if the offender means to cause death of person killed
b) if the offender means to cause person killed any bodily injury 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 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 anyone

Question 2

what is the further definition of murder

Answer 2

s168
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 or she means to cause grievous bodily injury for the purpose of facilitating the commission of any of the offences mentioned in subsection (2), 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 or she administers any stupefying or overpowering thing for any of the purposes aforesaid, and death ensues from the effects thereof:
(c) if he or she 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

what is intent

Answer 3

intent means the desire to achieve a specific result, and acting with the aim and purpose of achieving it.

in criminal law it requires an intention to commit the act, and secondly to get a specific result

R v Waaka
A fleeting or passing thought is not sufficient, there must be a firm intent or a firm purpose to effect an act

Question 4

what is the intent required for the charge of murder under s167

Answer 4

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 then the offence is manslaughter unless it falls within the provisions of infanticide s178

Question 5

what must you establish to show that the defendants state of mind meets the provisions of s167(b)

Answer 5

you must establish that the defendant:

• intended to cause the 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

Question 6

what issues did the court consider in r v mckeown and what did the court find in relation to these issues

Answer 6

• whether the defendant knew the acts were likely to cause death, and
• whether the defendant’s original intent of indecent assault amounted to an unlawful object

Question 7

what did the court find in r v mckeown

Answer 7

in relation to the first issue the court held that there is no principle requiring proof that the accused foresaw precisely how death would occur

As to the second issue, it found that unlawful object referred to in section 167(d) does not need to be the same as that injury that causes death

the indecent assault was an unlawful object where other personal injuries were inflicted in the knowledge that they are likely to cause death

the jury decides whether the defendant knew that his actions at the time were likely to cause death

Question 8

what is parties to offences

Answer 8

s66
- 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

the secondary party must know that the principal might do the act that causes death

Question 9

is it necessary for the secondary party to know that death is a probable consequence of their carrying out their primary purpose

Answer 9

No it is not necessary, rather is 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 s168

Question 10

what is the punishment for murder

Answer 10

s172
- everyone who commits murder is liable to imprisonment for life

unless a sentence of life imprisonment is manifestly unjust, if a court does not impose a life sentence it must give written reasons for not doing so - s102 of sentencing act 2002

Question 11

what is the definition of attempts

Answer 11

s72 of CA 1961

1) everyone who, having an intent to commit an offence does or omits an act for the purpose of accomplishing his object
2) the question of how remote an act is 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 the offence

Question 12

to prove an attempt, what must you show the defendant has done

Answer 12

the defendant must have done or omitted to do some act that is/are sufficiently proximate to the full offence. Effectively the defendant must have started to commit the offence and have gone beyond the phase of mere preparation - this is the “all but” rule

Question 13

simester and brookbanks set out the test for proximity, what questions did simester and brookbanks suggest should be asked in determining the point at which an act of mere preparation may become a attempt

Answer 13

ask:

• 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 yes then it is an attempt, if not then it is not an offence

Question 14

who decides on the matter of proximity

Answer 14

proximity is a question of law so the judge decides on it, based on the assumption that the facts of the case are proved

Question 15

what is the punishment for attempted murder and for counselling or attempting to procure murder

Answer 15

s173 of ca 1961
everyone who attempts to commit murder is liable to imprisonment for a term not exceeding 14 years

s174 of ca 1961
everyone is liable to imprisonment not exceeding 10 years who incites, counsels or attempts to procure any person to murder any other person in new zealand

Question 16

if a murder is attempted but not committed, what is the correct charge for an inciter, counsellor or procurer to the attempted murder

Answer 16

the inciter, counsellor or procurer is liable as a s66(1)(d) party to the attempted murder (s173)

Question 17

what is conspiracy to murder

Answer 17

s175

1) everyone who conspires or agrees with any person to murder any other person whether the murder takes place in nz or elsewhere (10 yr imprisonment)
2) the expression to murder includes to cause death of another person out of nz in circumstances that would amount to murder if act was committed in nz

s175 applies whether or not the murder is committed

Question 18

what is an accessory after the fact

Answer 18

s71 of 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.

7 yrs imprisonment

Question 19

what is voluntary manslaughter

Answer 19

mitigating circs such as a suicide pact reduces what would otherwise be murder to manslaughter even though the defendant may have intended to kill or cause gbh

Question 20

what is involuntary manslaughter

Answer 20

covers killings where death is caused by an unlawful act or gross negligence. in such cases there has been no intention to kill or cause gbh

Question 21

if you come across a killing that is a result of a sudden fight what do you need to consider

Answer 21

• whether there was self defence

- whether there was the requisite mens rea intent for a murder charge

Question 22

what are common instances from which a charge of manslaughter may arise

Answer 22

• killing in a sudden fight
• manslaughter by unlawful act
• manslaughter by negligence
• negligent drivers

Question 23

what is the 4 point test for proving an unlawful act

Answer 23

Newbury and Jones:

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 are some examples of manslaughter by negligence

Answer 24

• negligence while in charge of or using trains, factory machinery, mines, motor vehicles, ships or weapons, or while administering medical or surgical treatment

Question 25

if a person consents to riding on the bonnet of a car which you drive dangerously resulting in their death, is it a defence that they consented to riding on the bonnet

Answer 25

no, you would be charged with manslaughter for using a dangerous thing riskily or negligently

Question 26

if a death occurs in a game or match and the defendants actions were likely to cause serious injury what is the defendant guilty of

Answer 26

manslaughter, if the defendants actions were not likely to cause serious injury then it would be non culpable homicide

Question 27

if the deceased contributed to their own death by their own negligence, does this afford the defendant a defence against manslaughter

Answer 27

no, contributory negligence is no defence

Question 28

what are the alternative offences to manslaughter in cases of negligent drivers

Answer 28

aggravated, careless, dangerous and reckless driving causing death

Question 29

under s150A, when is a person criminally responsible for omitting to discharge or perform a legal duty or performing an unlawful act

Answer 29

(2) 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 30

what does the major departure test require

Answer 30

the major departure test requires a high degree of negligence, corresponding to the common law standard of gross negligence if they are going to be criminally responsible for: - s160(2)(b) manslaughter by negligent omission to perform or observe any legal duties specified in s150A(1)(a) OR - under s160(2)(a) for manslaughter by an unlawful act requiring proof of negligence or imposing strict or absolute liability

Question 31

when else does the major departure test apply

Answer 31

it also applies where a negligent omission results in endangerment or injury contrary to s153(2) of ca 1961 and to offences of ill treatment or neglect of a child or a vulnerable adult and failure to protect a child or vulnerable adult

Question 32

what test is applied to determine whether a defendant has been negligent and to determine whether negligence has been a major departure

Answer 32

the objective test: the test of gross negligence is objective and the defendants 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 defendants state of mind may be relevant to whether there was gross negligence. This may be readily found if for example the defendant knowingly ran a risk or was indifferent to an obvious risk of death

Question 33

what is the distinguishing element in a murder charge

Answer 33

- the offenders awareness or recklessness of the knowledge that their actions are likely to result in death - the jury decides whether the offender had such knowledge at the time by drawing inferences from all the circumstances, and from what the offender said and did at the time

Question 34

what are the associated charges to murder

Answer 34

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

Question 35

if offender intends to kill A but inadvertently strikes the fatal blow to B is the offender still guilty of murder

Answer 35

yes - s167 culpable homicide is murder if: (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 or she does not mean to hurt the person killed

Question 36

what is the crown required to prove in a charge of attempted murder

Answer 36

the crown must establish the mens rea and actus rea as set out in s72 of ca 1961. An intention to kill must be proved.

Question 37

when considering what charge to file when someone has been killed in a sudden fight what do you need to consider

Answer 37

- whether there was self defence | - whether there was the requisite mens rea for a murder/manslaughter charge