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Homicide Law and Defences 2018 > Short Answers > Flashcards

Flashcards in Short Answers Deck (64):

What is the penalty for attempted murder?

173 Attempt to murder

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


Outline s181 of the Crimes Act 1961 (concealing a dead body of a child)

181 Concealing dead body of child
Every one is liable to imprisonment for a term not exceeding 2 years who disposes of the dead body of any child in any manner with intent to conceal the fact of its birth, whether the child died before, or during, or after birth.


In which court does a youth facing a charge of murder or manslaughter appear?

where a Young persons over 14 years of age is alleged to have committed Murder or Manslaughter they are usually dealt with under the youth justice provisions of the Oranga Tamariki Act 1989. Charges are filed in the District Court, the first appearance takes place before the Youth Court and the case will automatically be transferred to the High Court for trial and sentencing.


A Question of Law relating to whether the condition is a disease of the mind is answered by whom?

The judge

In practice, medical witnesses are permitted to say whether they regard a disorder as a “disease of the mind”, as well as testifying as to the causes and symptoms of the condition diagnosed, but such a classification by medical witnesses is not final, and whether the particular condition is a disease of the mind is a question of law for the Judge.
Disease of the mind is not a medical question but a legal one.


What that accused's state of mind was at the time of the offence is a question decided by whom?

The jury


What is the burden of proof for insanity?

the defendant is not required to prove the defence of insanity beyond reasonable doubt, but to the satisfaction of the jury on the balance of probabilities.


S153 of the Crimes Act '61, what is the relevant age of the person who is employed?

Under the age of 16 years


Where a charge of infanticide is laid, who decides on the Mothers 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.


Pursuant to s22(3)(a) of the Criminal Disclosure Act '08, the notice under subsection (1) must include:

(3) Without limiting subsection (1),—
(a) the notice under subsection (1) must include 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;


Before a conviction can be obtained for manslaughter, where one of the sections referred to is s150A(1) of the Crimes Act '61, what must the prosecution prove?

the prosecution must prove a “very high degree” of negligence or “gross negligence”.


Proximity is a question of law decided by whom?

Proximity is a question of law; it is a question that is decided by the judge based on the assumption that the facts of the case are proved.


Written notice of an alibi is to be given by the defendant:

must be given within 10 working days after the defendant is given notice under section 20


As a general guideline, most offences within the CA '61, will require an intent (Mens rea) of some kind. Outline a defence that would therefore be generally available:

The defence of intoxication will be available to the defence to establish that the defendant did not have the requisite intent (mens rea) to carry out the offence.


Provide an overview of the culpability of persons involved in suicide pacts

Because the law does not recognise a person’s right to consent to death, people who help another to commit suicide or who are part of a suicide pact but survive are responsible for the other person’s death. In such cases the surviving person is charged with manslaughter.


Outline s25 of the CA '61, ignorance of the law

The fact that an offender is ignorant of the law is not an excuse for any offence committed by him.


Outline "M'Naghtens's rules"

The M’Naghten’s rules are 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.


List four statutory legal duties in respect of the CA'61

• 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).


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

174 Counselling or attempting to procure murder
requires the defendant to incites, counsels, or attempts to procure any person to murder any other person in New Zealand, when that murder is not in fact committed.

175 Conspiracy to murder
Requires the defendant to conspires or agrees with any person to murder any other person, whether the murder is to take place in New Zealand or elsewhere.
Section 175 may apply regardless of whether murder is committed or not.

Both punishable 10 years imprisonment


Section 159(1) & (2) of the CA'61 defines when a child becomes a human being and is therefore able to be murdered under s158. Detail the provisions of s159(1) & (2)

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


Define homicide, s158 CA'61

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


State the ingredients of infanticide (s178 CA'61)

178 Infanticide
(1) 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.


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 the age of 16 years or a sick person


What is meant by the term 'justified? Provide two examples.

When an act 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).


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 a party to the offence(Murder),
Receives, comforts, or assists that person
Tampers with or actively suppresses any evidence
In order to enable him to escape after arrest
To avoid arrest or conviction


Define the term 'suicide pact' s180 CA61

180 Suicide pact
(1) Every one who in pursuance of a suicide pact kills any other person is guilty of manslaughter and not of murder, and is liable accordingly.
(2) Where 2 or more persons enter into a suicide pact, and in pursuance of it one or more of them kills himself, any survivor is guilty of being a party to a death under a suicide pact contrary to this subsection and is liable to imprisonment for a term not exceeding 5 years; but he shall not be convicted of an offence against section 179 of this Act.
(3) 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.


How do NZ 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.


List the ingredients of s48 of the CA61 (self defence or defence of another)

48 Self-defence and 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.


Provide 3 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.


In common law, allegation 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 a person who subsequently dies from an overdose
• throwing a large piece of concrete from a motorway overbridge into the path of an approaching car
• conducting an illegal abortion where the mother dies.


In relation to s160(2)(d) of the CA61, give 2 practical examples of culpable homicide which has been caused by the victims actions, prompted by threats or fear of violence

• jumps or falls out of a window and dies because they think they are going to be assaulted
• jumps into a river to escape an attack and drowns
• who has been assaulted and believes their life is in danger, jumps from a train and is killed.


To establish proof of death, in relation to homicide, you must prove 3 key elements, what are they?

• death occurred
• deceased is identified as the person who has been killed
• the killing is culpable


What is the definition of the period 'a year and a day' as outlined in s162(2) CA61?

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.


S168(1)(a) CA61 refers to the term 'grievous bodily injury', what does this mean and give an example of such an injury

“grievous bodily injury” means harm that is very serious, such as injury to a vital organ.


In the test for proximity, Simester and Brookbanks (Principles of 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?

• 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?


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

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.


What is 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.


Define Alibi

as the plea in a criminal charge of having been elsewhere at the material time: the fact of being elsewhere


What must the Defendant include in a notice of alibi?

must include 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;


Define "Attempts" under s72(1)CA61

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.


Outline culpable homicide s160(1)&(2) CA61

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.


Explain what is meant by s160(2)(b) CA61, 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.


Define "wilfully frightening"

Wilfully frightening” is regarded as “intending to frighten, or at least be reckless as to this”.


What are the legal duties of a parent/guardian under s152 CA61?

152 Duty of parent or guardian to provide necessaries and protect from injury
(1) 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


What are the ingredients of s154 CA61, 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.


Outline the culpability of children under 10 and children 10-13years

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.
Children aged 10-13 years
It must be shown that the child knew their act was wrong or contrary to law. This test of knowledge is in addition to the mens rea and actus reus requirements. If this knowledge cannot be shown, the child cannot be criminally liable for the offence.


Define insanity

23 Insanity
(1) Every one shall be presumed to be sane at the time of doing or omitting any act until the contrary is proved.
(2) 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.


Automatism caused by Alcohol and drugs

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.


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.


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 defendant must have genuinely believed the threats
- must not be a party to any association or conspiracy involved in carrying out the threats.
- The threats of death or grievous bodily harm must be “immediate” and from a person present at the time.


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.


Give 2 examples where culpable homicide is murder

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.


Define "Legal Duty"

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


Outline s163 CA61 killing by influence on the mind

163 Killing by influence on the mind
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.


What is the required state of mind for s167(b) CA61?

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


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.


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.


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.


What is "sane" and "insane" automatism?

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.


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 defendant.


Outline the subjective and objective tests relating to s48 CA61

Once the defendant has decided that use of force was required (a subjective view of the circumstances as the defendant 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.


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 defendant 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).


The General Rule has been that intoxication may be used as a defence in the commission of what type of offences?

• where the intoxication causes a disease of the mind so as to bring s23 (Insanity) of the Crimes Act 1961 into effect
• if intent is required as an essential element of the offence and the drunkenness is such that the defence can plead a lack of intent to commit the offence
• where the intoxication causes a state of automatism (complete acquittal).


Degree of force for self defence is tested on what subjective criteria?

• What are the circumstances that the defendant genuinely believes exist (whether or not it is a mistaken belief)?
• Do you accept that the defendant genuinely believes those facts?
• Is the force used reasonable in the circumstances believed to exist?


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 10 working days before the date fixed for the defendants trial, or within any further time that the court may allow (s23(1)).