2. Murder and Manslaughter

Question 1

Culpable homicide is murder in what 4 situations

s167

Answer 1

a) offender MEANS to cause the death of the person killed
b) offender means to cause any BODILY INJURY to the deceased that they know is likely to cause death, and is reckless whether death ensues or not
c) offender means to cause death, or being so reckless means to cause bodily injury and by ACCIDENT or MISTAKE kills another person
d) offender for an 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

Culpable homicide is murder under s168 in what 3 situations

offender means/doesn’t mean death to ensure, or knows/doesn’t know that death is likely to ensue

Answer 2

a) means to cause grievous bodily injury for the purpose of facilitating the commission of any offences, facilitating flight, avoiding detection or resisting lawful apprehension in respect of any offence, and death ensues from such injury
b) administers any stupefying or overpowering thing, for the aforesaid purposes, and death ensures from the effects
c) 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

To show that the defendants state of mind meets the provisions of s167(b) (bodily injury) you must establish what three things

Answer 3

• intended to cause bodily injury
• knew the injury was likely to cause death
• was reckless as to whether death ensued or not

Question 4

R v Harney

Answer 4

Recklessness means the conscious and deliberate taking of an unjustified risk. In NZ it involves proof that the consequences complained of could well happen together with an intention to continue the course of conduct regardless of risk

Question 5

R v Prir

Answer 5

Recklessness involves a conscious, deliberate risk taking. The degree of risk of death foreseen by the accused under either s167(b) or (d) must be more than negligible or remote. The accused must recognise a “real or substantial risk” that death would be caused

Question 6

R v Desmond

Answer 6

Not only must the object be unlawful, but also the accused must know that his act is likely to cause death. It must be shown that his knowledge accompanied the act causing death

Question 7

What is the legislation for parties to offences, s66(2) that can provide criminal responsibility for persons who are carrying out an unlawful purpose when one of them kills someone

Answer 7

Where 2 or more persons have a common intention to prosecute any unlawful purpose, each of them is a party to every offence committed by any one of them if the commission of that offence was known to be a probably consequence of the prosecution of the common purpose

Question 8

What is the effect of the Sentencing Act 2002

s102

Answer 8

1) an offender who is convicted of murder must be sentenced to life imprisonment 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 9

What is the definition of an attempts to commit an offence

s72

Answer 9

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

Must be sufficiently proximate to the full offence

Gone beyond the phase of mere preparation

Question 10

R v Murphy

Answer 10

When proving an attempt to commit an offence it must be shown that the accused’s intent 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

Question 11

R v Harpur

Answer 11

The Court may have regard to the conduct viewed cumulatively up to the point when the conduct in question stops. The defendant’s conduct may be considered in its entirety. Considering how much remains to be done is always relevant though not determinative

Question 12

What is the test for proximity in relation to attempts

Simester and Brookbanks

Answer 12

• has the offender done anything more than getting himself into a position from which he could embark on an actual attempt
• has the offender actually commenced execution (taken a step in the actual offence itself)

Question 13

Proximity is a question of law decided by who

Answer 13

Judge, based on the assumption that the effects of the case are proved

Question 14

What is the punishment for attempted murder

s173

Answer 14

14 years imprisonment max

Question 15

What is the legislation for counselling or attempting to procure murder
s174

Answer 15

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 NZ, when that murder is in fact not committed

Question 16

What is the legislation for conspiracy to murder

s175

Answer 16

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 NZ or elsewhere

Applies regardless of whether murder is committed or not

Question 17

What is the legislation for accessory after the fact to murder
s71(1)

Answer 17

• knowing any person to have been a party to an offence
• RECEIVES, COMFORTS, ASSISTS that person or TAMPERS with or ACTIVELY suppresses any evidence against him
• in order to enable him to ESCAPE after arrest or AVOID conviction

7 years

Question 18

R v Mane

Answer 18

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 reas of the alleged criminal conduct was wholly completed before the offence of homicide was completed

Question 19

What is an example of voluntary manslaughter

Answer 19

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 GBH

Question 20

What does involuntary manslaughter cover

Answer 20

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 cause GBH.

Question 21

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

Answer 21

• self-defence

* the requisite mens rea for a murder charge

Question 22

What is the four point test for proving an unlawful act for manslaughter
s160(2)

Answer 22

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 23

What does manslaughter by negligence include

Answer 23

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

Question 24

Before a conviction can be obtained for manslaughter where one of the sections referred to is 150A(1) of CA 1961, what must he prosecution prove

Answer 24

A very high degree of negligence of gross negligence

Question 25

What is the definition of grievous bodily injury and provide and example

Answer 25

Harm that is very serious

Injury to a vital organ