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Flashcards in Short Answers Deck (67):
1

1. Outline “M’Naghten’s rules”

The M’Naghten’s rules (or test) is frequently used to establish whether or not a defendant is insane. It is based on the person’s ability to think rationally, so that 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.

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2. List four statutory legal duties in respect of the Crimes Act 1961

* Provide the necessaries and protect from injury (s151)

* Provide necessaries and protect from injury to your charges when you are a parent or guardian (s152)

* Provide necessaries as an employer (s153)

* Use reasonable knowledge and skill when performing dangerous acts, such as surgery (s155)

* Take precautions when in charge of dangerous things, such as machinery (s156)

* Avoid omissions that will endanger life (s157).

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3. List the difference between counselling or attempting to procure murder (s174) and conspiracy to Murder (s175)

Counselling or attempting to procure murder requires that the offence is to be committed in New Zealand, whereas with conspiracy to murder, the murder can take place in New Zealand or elsewhere.

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.

Counselling or attempting to procure murder only applies if the murder is not in fact committed, whereas conspiracy to murder applies regardless of whether murder is committed or not.


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.

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4. Section 159(1) & (2) of the Crimes Act 1961 defines when a child becomes a human being and is therefore able to be murdered under section 158. Detail the provisions of section 159(1) & (2).

159(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.

159(2) the killing of such child is homicide if it dies in consequence of injuries received before, during, or after birth.

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5. Define Homicide, Section 158 of the Crimes Act 1961

Homicide is the killing of a human being by another, directly or indirectly, by any means whatsoever.

Homicide must be culpable to be an offence

However, in cases of:
 Manslaughter; an organisation can be convicted as a party to the offence
(section 66(1))
 Murder, an organisation cannot be convicted as either a principal offender
or a party to the offence. This is because the offence carries a mandatory
life sentence.

Murray Wright Ltd [1970] NZLR 476.
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:

6

6. 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 criminal conduct was wholly completed before the offence of homicide was completed.

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7. State the ingredients of infanticide (s178 of the Crimes Act 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 3 years.

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8. What does R v Myatt state about an unlawful act in respect of section 160(2)(a) of the Crimes Act 1961?

Before a breach of any Act, regulation or bylaw would be an unlawful act under s 160 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

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9. What was held in R v Tomars

Treats/Fear of violence and deception: s160(2)(d)

Formulates the issues in the following way:

1. Was the deceased threatened by, in fear of or deceived by the accused?

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 accused, in the sense that reasonable and responsible people in the accused’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?

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10. 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?

* Wilfully frightening a child under 16 years of age

* Wilfully frightening a sick person (Mentally or physically)

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11. What is meant by the term “justified?” Provide two examples:

Note that some acts are “justified” even when they result in death. Section 2 provides that when an act is justified the perpetrator is exempt from both criminal and civil liability.

Examples of such acts include:

* Homicide committed in self-defence (s48)

* Homicide committed to prevent suicide or commission of an offence which would be likely to cause immediate and serious injury to the person or property of any one (s41).

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12. Why is attempted murder one of the most difficult offences in the Crimes Act 1961 to prove beyond reasonable doubt?

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:

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13. What are the ingredients to accessory after the fact to murder?

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.

Knowing any person to have been party to murder, receives, comforts, assists that person or tampers with or actively suppresses evidence against that person in order to enable him to escape after arrest or to avoid conviction.

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14. Define the term “Suicide Pact” s180(3) Crimes Act 1961

For the purposes of this section the term suicide pact means a common agreement between 2 or more persons having for its object the death of all of them, whether or not each is to take his own life; but nothing done by a person who enters into a suicide pact shall be treated as done by him in pursuance of the pact unless it is done while he has the settled intention of dying in pursuance of the pact.

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15. Discuss the case Forrest & Forrest and outline the case law

In R v Forrest & Forrest two men were charged with having sexual intercourse with a 14-year-old girl who had run away from Child Welfare custody. At trial the girl produced her birth certificate and gave evidence herself that she was the person named in the certificate. The men successfully appealed their convictions on the grounds that the Crown had not adequately proved the girl’s age.

The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victim’s age.

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16. How do New Zealand Courts deal with a defence of Automatism arising out of taking alcohol and / or drugs?

In New Zealand, the courts are likely to steer a middle course, allowing a defence of automatism arising out of taking alcohol and drugs, to offences of basic intent only. They are likely to disallow the defence where the state of mind is obviously self-induced, the person is blameworthy, and the consequences could have been expected.

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17. List the ingredients of Section 48 of the Crimes Act 1961 (Self-defence or 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.

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18. What was held in R v Ranger?

If this accused 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.

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19. Provide three guidelines in respect of consent regarding assault.

1. Everyone has a right to consent to a surgical operation.

2. Everyone has a right to consent to the infliction of force not involving bodily harm.

3. No one has a right to consent to their death or injury likely to cause death.

4. No one has a right to consent to bodily harm in such a manner as to amount to a breach of the peace, or in a prize fight or other exhibition calculated to collect together disorderly persons.

5. It is uncertain to what extent any person has a right to consent to their being put in danger of death or bodily harm by the act of another.

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20. In common law, allegations of culpable homicide have been supported where the offenders have caused death by particular circumstances. Name any four of these circumstances.

* Committing arson

* Giving a child an excessive amount of alcohol to drink

* Placing hot cinders and straw on a drunk person to frighten them

* Supplying heroin to the deceased

* Throwing a large piece of concrete from a motorway over bridge into the path of an approaching car

* Conducting an illegal abortion.

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21. In relation to Section 160(2)(d) of the Crimes Act 1961,give two practical examples of culpable homicide which has been caused by the victims actions, prompted by threats on fear of violence

Treats/Fear of violence and deception: s160(2)(d)

1. Jumps or falls out of a window because they think they are going to be assaulted

2. Jumps into a river to escape an attack and drowns

3. Who has been assaulted and believes their life is in danger, jumps from a train and is killed.

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22. To establish proof of death, in relation to homicide, you must prove three key elements, they are:

* Death occurred

* Deceased is identified as the person who has been killed

* The killing is culpable.

Death can be proved by direct and/or circumstantial evidence.

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23. What is the definition of the period “a year and a day” as outlined in section 162(2) of the Crimes Act 1961?

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.

For a death to be seen as caused by another, the death needs to occur within a year and a day from the time the last unlawful act or omission occurred.

Section 162 sets out the time in which a death must occur in order to be seen as caused by another:

162 Death must be within a year and a day

(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.

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24. Section 168(1)(a) of the Crimes Act 1961 refers to the term “grievous bodily injury” what does this mean and give an example of such an injury:

In subsection (1)(a), “grievous bodily injury” means harm that is very serious, such as injury to a vital organ. To come within subsection (1)(c), the stopping of the victim’s breath must be done “wilfully”

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25. In the test for proximity, Simester and Brockbanks (Principles 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 two questions?

* 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 crime itself?

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26. Give an example when murder might be reduced to manslaughter even though the accused intended to kill or cause grievous bodily harm

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

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27. What is involuntary manslaughter?

Involuntary manslaughter 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

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28. Define Alibi

“An alibi is the plea in a criminal charge of having been elsewhere at the material time: the fact of being elsewhere”

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29. What must the Defendant include in a notice of alibi?

The name and address of the witness or, if the name and address is not known to the defendant when the notice is given, any matter known by the defendant that might be of material assistance in finding that witness.

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30. Define “Attempts” under section 72(1) of the Crimes Act 1961

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.

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31. Outline culpable homicide section160(1) & (2) of the Crimes Act 1961

160 Culpable homicide
(1) Homicide may be either culpable or not culpable.
(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.
(3) Except as provided in section 178 of this Act, culpable homicide is either murder or
manslaughter.
(4) Homicide that is not culpable is not an offence.

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32. Explain what is meant by section 160(2)(b) of the Crimes Act 1961, omission to perform a legal duty.

This covers cases where nothing is done when there is a legal duty to act, and certain cases of positive conduct accompanied by a failure to discharge a legal duty, in particular a duty of care.

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33. Define “wilfully frightening”

“Wilfully frightening” is regarded as:” intending to frighten, or at least be reckless as to this”. Adams on Criminal Law

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34. Explain R v Horry

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.

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35. What was held in R v Harney?

“[Recklessness involves] foresight of dangerous consequences that could well happen, together with an intention to continue the course of conduct regardless of the risk.”

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36. What are the legal duties of a parent/guardian under section 152 of the Crimes Act 1961?

Every one who is a parent, or is a person in place of a parent, who has actual care or charge of a child under the age of 18 years is under a legal duty—

(a) To provide that child with necessaries; and

(b) To take reasonable steps to protect that child from injury.

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37. What are the ingredients of section 154 of the Crimes Act 1961, abandoning a 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.

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38. Outline the culpability for children under 10 and children 10-13 years.

* Under 10 - A child aged under 10 years has an absolute defence to any charge brought against them. Nevertheless, even though the child cannot be convicted, you still have to establish whether or not they are guilty.

* 10-13yrs - For children aged between 10 and 13 years inclusive, it must be shown that the child knew their act was wrong or contrary to law. If this knowledge cannot be shown, the child cannot be criminally liable for the offence.

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39. Define insanity

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) Of knowing that the act or omission was morally wrong, having regard to the commonly accepted standards of right and wrong.

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40. What was held in R v Cottle? (Burden of Proof 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.

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41. What was held in R v Lipman?

Where automatism is brought about by a voluntary intake of alcohol or drugs the Court may be reluctant to accept that the actions were involuntary or that the offender lacked intention.

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42. What is a “strict liability” offence?

Any offence that does not require an intent is called a strict liability offence and the only way a defendant can escape liability for such an offence is to prove a total absence of fault.

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43. What 3 points must be satisfied before a defence of compulsion can be used?

A person is protected from criminal responsibility if they have been compelled to commit the offence by someone at the scene who had threatened them that they would otherwise be killed or caused grievous bodily harm. The accused must have genuinely believed the threats and must not be a party to any association or conspiracy involved in carrying out the threats.

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44. Explain entrapment

Entrapment occurs when an agent of an enforcement body deliberately causes a person to commit an offence, so that person can be prosecuted.

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45. Give two circumstances where culpable homicide is murder

(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.

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46. Define “Legal Duty”

The expression “legal duty” refers to those duties imposed by statute or common law including uncodified common law duties:

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47. Outline section 163 of the Crimes Act 1961

No one is criminally responsible for the killing of another by any influence on the mind alone, except by wilfully frightening a child under the age of 16 years or a sick person, nor for the killing of another by any disorder or disease arising from such influence, except by wilfully frightening any such child as aforesaid or a sick person.

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48. What is required state of mind for section 167(b) of the Crimes Act 1961?

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

* 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.

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49. You cannot use the defence of consent to assault in the following cases

* Aiding suicide

* Criminal actions

* Injury likely to cause death

* Bodily harm likely to cause a breach of the peace

* Indecency offences

* The placing of someone in a situation where they are at risk of death or bodily harm.

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50. Outline R v Blaue

Those who use violence must take their victims as they find them.

51

51. 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

(b) either—

(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

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52. What was held in R v Clancy?

“The best evidence as to the date and place of a child's birth will normally be provided by a person attending at the birth or the child's mother ... Production of the birth certificate, if available, may have added to the evidence but was not essential.”

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53. Define Automatism

Automatism can best be described as a state of total blackout, during which a person is not conscious of their actions and not in control of them.

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54. What is “Sane” and “Insane” Automatism?

Automatism may be quite different and distinct from insanity, although it may be due to a disease of the mind. Hence it is necessary to distinguish between:

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.

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55. What is the Courts view of entrapment?

In New Zealand 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 accused.

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56. Outline the subjective and objective tests relating to section 48 of the Crimes Act 1961

Once the accused has decided that use of force was required (a subjective view of the circumstances as the accused believed them), Section 48 then introduces a test of reasonableness which involves an objective view as to the degree and manner of the force used

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57. What was held in 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.

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58. What is the procedure when alibi witnesses are interviewed?

The O/C case should not interview an alibi witness unless the prosecutor requests them to do so. If an interview is requested, follow this procedure.

* Advise the defence counsel of the proposed interview and give them a reasonable opportunity to be present

* If the accused is not represented, endeavour to ensure the witness is interviewed in the presence of some independent person not being a member of the Police.

* Make a copy of a witness’s signed statement taken at any such interview available to defence counsel through the prosecutor. Any information that reflects on the credibility of the alibi witness can be withheld under s16(1)(o).

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59. If the Defendant intends to call an expert witness during proceedings, what must they disclose to the Prosecution?

* Any brief of evidence to be given or any report provided by that witness, or

* If that brief or any such report is not available, a summary of the evidence to be given and the conclusions of any report to be provided.

* This information must be disclosed at least 14 days before the date fixed for the defendants hearing or trial, or within any further time that the court may allow (s23(1))

60

Define Voluntary
manslaughter

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.

61

Involuntary manslaughter

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 (refer page 44).

62

Culpable homicide that does not amount to murder

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.
Common law draws a further distinction between:
 voluntary manslaughter
 involuntary manslaughter

63

Define unlawful act:

By unlawful act: s160(2)(a)

The term “unlawful act” is defined in the section 2 of the Crimes Act 1961 as
follows:

Unlawful Act – means a breach of any Act, regulation, rule, or bylaw.

64

s167 Murder defined

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.

65

DPP v Newbury and Jones outlines a four point test for proving unlawful act
for manslaughter.

DPP v Newbury and Jones outlines a four point test for proving 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

66

Define involuntary manslaughter:

Involuntary manslaughter covers those types of unlawful killing in which death is caused by criminal negligence. In such cases there has been no intention to kill or cause grievous bodily harm.

67

Who decides on the mothers state of mind in relation to infanticide?

Jury to decide on mother’s state of mind If a woman is charged with murder or manslaughter, but the jury believes her state of mind is due to the effects of childbirth, the jury is required to return a special verdict of acquittal on account of insanity caused by childbirth.

However, the prosecution may file charging documents for both infanticide and murder of an infant, and it is up to the jury to decide on the mother’s state of mind. In charges of infanticide, it is for the jury to decide on the mother’s state of mind.