2 Murder and Manslaughter Offences

Question 1

Murder defined - Section 167

Answer 1

Culpable homicide is murder in each of the following cases:
a) if the offender means to cause the death of the person killed
b) means to cause to the person killed any bodily injury that is known to the offender likely to result in death or reckless whether death ensures
c) means to cause death or being reckless as aforesaid, means to cause such bodily injury 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

Question 2

Further definition of murder - Section 168

Answer 2

Culpable homicide is also murder in the following, whether the offender means or does not mean death to ensure

a) Causes GBH during commission of a crime OR facilitating flight OR avoiding detection OR resisting lawful apprehension
b) Administers anything stupefying or over powering for any purpose
c) Wilfully stops someone breathing

Question 3

Intent

Answer 3

Intent to commit a deliberate act with the intention to get a deliberate result.

Deliberate act - act or omission must be more than involuntary or accidental
Intent to produce a result - aim, objective or purpose

Question 4

To charge for murder, you must prove the Defendant:

Answer 4

• intended to cause death; or
• knew that death was likely to ensue; or
• was reckless that death would ensure

Question 5

Recklessness

Answer 5

Involves consciously and deliberately taking an unjustifiable risk.

Knew about that risk (subjective) and it was unreasonable to do so (objective)

Real possibility = could well happen

R v Cameron

Question 6

What to prove in state of mind for 167(b) (Murder)

Answer 6

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

Question 7

R v PIRI

Answer 7

Recklessness involves a conscious and deliberate risk taking. The risk of death foreseen by the accused in 167(b) or (d) must be more than negligible.

The accused must recognise a real of substantial risk that death would be caused.

Question 8

R v DESMOND

Answer 8

Not only does the object have to be unlawful but the accused must know that his act is likely to cause death. It must show his knowledge is accompanied with the act causing death

Question 9

Section 66 - Parties to offences

Answer 9

Two or more people form a common intention to prosecute an unlawful purpose and to assist each other there in.

Each of them are party of each offence committed during the prosecution of their common purpose if such offence was known to be the probable consequence during the prosecution of the common purpose

Question 10

Proving joint responsibility

Answer 10

NO need to prove the 2nd party knew the death was a probable of carrying out their purpose.

Just need to show that the 2nd party knew it was probable that the principle offender might do an act if ensued would come under 168 (murder)

Question 11

Section 172 - punishment for murder

Answer 11

Life

Question 12

Section 102 - sentencing act
(favour for life imprisonment)

Answer 12

Must be life in prison unless there are mitigating circumstances/manifestly unjust

Question 13

R V MURPHY

Answer 13

When proving attempt to commit and offence it must be shown that the accused intention was to commit the substantive offence. EG in attempted murder the crown must prove there was an intent to kill

Question 14

Section 72 - Attempts

a) does an act/omission is guilty to attempt
b) preparation/remote
c) immediate or proximate

Answer 14

a) everyone 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

b) whether an act or omission with the intent to commit an offence is/is not preparation OR too remote to be an attempt is a question of law

c) an act done or omitted with the intent to commit an offence may constitute an attempt if it is immediately or proximately connected with the intended offence

Question 15

Attempt must be proximate and go beyond m____ p______

Answer 15

The attempt must be proximate to the actual offence - must go beyond more than mere preparation.

Must take into account each circumstance

Question 16

R v HARPUR
(Several acts together may constitute an attempt)

Answer 16

Court may view the conduct cumulatively up to the point when the conduct in question stops….the defendants conduct maybe considered in its entirety. Considering how much remains is always relevant

Question 17

Testing for proximity
(Simester and Brookbanks)

Answer 17

1) Has the offender done anything more than getting himself into a position from which he could embark on an actual attempt?

2) Has the offender actually commenced execution, taken an actual step to the offence?

Question 18

Who decides on proximity?

Answer 18

The judge based on the facts that are proved

Question 19

Punishment for attempted murder
Section 173

Answer 19

Max 14 years

Question 20

Counselling or attempting to procure murder
Section 174

Answer 20

10 years
Incites, counsels or attempts to procure any person to murder another person in NZ
Can be liable for attempted murder under 66(1)(d) [attempts] if there was an attempt

Question 21

Conspiracy to murder
Section 175

Answer 21

10 Years
Takes place in NZ or overseas
Conspires or agrees with any other person

Question 22

Define accessory after the fact

Answer 22

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 suppresses any evidence against him/her, in order to enable him/her to escape after arrest or to avoid arrest or conviction.

Question 23

Accessory after that fact to murder
Section 176

Answer 23

7 Years

Question 24

R v MANE

Answer 24

For a person to be an accessory the offence must be complete at the time of the involvement. One can not be an accessory after the fact of murder before the act of homicide was completed.

Question 25

Example of voluntary manslaughter

Answer 25

Suicide pact

Question 26

Example of involuntary manslaughter

Answer 26

Covers where there is an unlawful act or gross negligence.

No intention to kill or to cause GBH

Question 27

Manslaughter includes the following culpable homicide

Answer 27

• Does not come within s167(murder) or s168(murder extension)
• Comes within s167 and s168 but is reduced to manslaughter like suicide pact

Question 28

Key difference between manslaughter and murder

Answer 28

The mental element at the time

Question 29

What to consider in a killing due to a sudden fight

Answer 29

Consider if it was self defence or is there the mens rea for a murder charge?

Self defence = acquittal
No mens rea for murder = manslaughter

Question 30

Four points for proving unlawful act for manslaughter

Answer 30

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 31

If person rides on top of a car bonnet with their consent and dies after falling off, does the driver have a defence of manslaughter?

Answer 31

No - consent is no defence

Question 32

If deceased died due to their own negligence? Is this a defence?

Answer 32

No

Question 33

Punishment for manslaughter

Answer 33

Life

Question 34

What is the ‘Major Departure’ test in gross negligence

Answer 34

It is an objective test to determine if a defendant has been negligent and if this negligence has been a major departure.

State of mind is not a prerequisite as being objective. However still can be taken into account.

Essentially the defendant has a regard to risk of death however the conduct is so bad in that it amounts to a criminal act or omission

Question 35

What are the four associated murder charges and their punishments

Answer 35

• attempt to murder (14)
• counselling or attempting to procure murder (10)
• conspiracy to murder (10)
• accessory after the fact of murder (7)

Question 36

Common law defines which two distinct type of manslaughter

Answer 36

Voluntary and involuntary manslaughter

Question 37

Do you need to prove that the secondary party knew that death was probable to charge for murder?

Answer 37

No need to prove this, as long as the secondary party knew that the principal offender might do an act that would if death resulted be within terms of 168 (further murder defined)

Question 38

If the offender intends to kill A but inadvertently strikes B and B dies, is the offender guilty of murder?

Answer 38

Yes - section 167(c) [murder] states if the offenders means to cause the death of one person but by mistake or accident kills another person, it is still murder

Question 39

In a charge of attempted to murder, what is the crown required to prove?

Answer 39

Must establish the mens rea and actus rea set out in s72 (attempts). An intention to kill must be proved

Question 40

Define voluntary and involuntary manslaughter

Answer 40

Voluntary - mitigating circumstances such as a suicide pact would reduce a murder to manslaughter even though the defendant may of intended to kill or cause GBH

Involuntary - covers killing in which death is caused by criminal negligence. In such cases there has been no intention to kill or cause GBH

Question 41

When considering what charge to press in a case where someone has been killed in a sudden fight, what issues do you need to consider?

Answer 41

• Was it self defence?
• Is there enough mens rea for a murder charge? If not then manslaughter