2. Murder and Manslaughter Flashcards
Culpable homicide is murder in what 4 situations
s167
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
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
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
To show that the defendants state of mind meets the provisions of s167(b) (bodily injury) you must establish what three things
- intended to cause bodily injury
- knew the injury was likely to cause death
- was reckless as to whether death ensued or not
R v Harney
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
R v Prir
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
R v Desmond
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
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
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
What is the effect of the Sentencing Act 2002
s102
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
What is the definition of an attempts to commit an offence
s72
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
R v Murphy
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
R v Harpur
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
What is the test for proximity in relation to attempts
Simester and Brookbanks
- 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)
Proximity is a question of law decided by who
Judge, based on the assumption that the effects of the case are proved
What is the punishment for attempted murder
s173
14 years imprisonment max
What is the legislation for counselling or attempting to procure murder
s174
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
What is the legislation for conspiracy to murder
s175
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
What is the legislation for accessory after the fact to murder
s71(1)
- 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
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 reas of the alleged criminal conduct was wholly completed before the offence of homicide was completed
What is an example of 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 GBH
What does involuntary manslaughter cover
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.
When you come across a killing that is a result of a sudden fight, you need to consider whether there was what two things
- self-defence
* the requisite mens rea for a murder charge
What is the four point test for proving an unlawful act for manslaughter
s160(2)
- the defendant must INTENTIONALLY do an act
- the act must be UNLAWFUL
- the act must be DANGEROUS
- the act must CAUSE death
What does manslaughter by negligence include
Instances that include negligence while in charge of or using trains, factory machinery, mines, motor vehicles, ships, weapons or administering medical or surgical treatment
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
A very high degree of negligence of gross negligence
What is the definition of grievous bodily injury and provide and example
Harm that is very serious
Injury to a vital organ
