2. Murder and Manslaughter Offences

Question 1

How is Murder defined in section 167?

Answer 1

Culpable homicide is defined as:

(a) if the offender MEANS to cause the death of the person killed.
(b) MEANS to cause the person killed any bodily injury that is known to the offender to 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.

Question 2

What is the definition for Murder under Section 168?

Answer 2

(1) Culpable homicide is also murder in each of the following cases whether the offender means or does not mean death to ensue or knows or does not know that death to ensue.
(a) if he means to cause grievous doily injury for the purpose of facilitating the commission of any of the offences mentioned in subsection 2 of this section or facilitating the flight or avoiding the detection of the offender upon the commission or attempted commission thereof or for the purpose of resisting lawful appreciation in respect of any offence whatsoever and death ensues from such injury.
(b) if he administers any stupefying or overpowering thing for any of the purposes aforesaid and death ensues from the effects thereof:
(c) if he by any means willfully stops the breath of any person for any of the purposes aforesaid and death ensues from such stopping of breath

Question 3

Intent - in criminal law what is intent?

Answer 3

There are two types of intents in criminal law. The first is there must be an intention to commit an act and second it there must be an intent to get a specific result.

Question 4

What is DELIBERATE ACT?

Answer 4

Intent means that act or omission must be done deliberately. The act or omission must be more than involuntary or accidental.

Question 5

In the second intent ie: the intention to achieve a specific result. In this context what does result mean?

Answer 5

It is…aim, object or pupose.

Question 6

If you are going to charge someone with section 167 what do you need to prove?

Answer 6

You need to prove:

• intended to cause death
• knew the death was likely to ENSUE OR
• was reckless that death would ensue

Question 7

What charges should you be looking at if INTENTION is not there for murder?

Answer 7

Manslaughter unless it falls within the provisions of infanticide (section 178)

Question 8

Define RECKLESSLY?

Answer 8

Recklessly involves consciously and deliberately taking an unjustifiable risk.

Question 9

What was found in R v Harney?

Answer 9

Recklessness means the conscious and deliberate taking of an unjustified risk. In New Zealand it involves proof that the consequence complained of could well happened, together with an intention to continue the course of conduct regardless of risk.

Question 10

What general rule was given for R v Tripple in relation to recklessness?

Answer 10

The general rule was it should be given a subjective test.

Question 11

In relation to section 167(b), what do you need to prove?

Answer 11

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

Question 12

In R v Piri what was found in relation to section 167(b) or (d)?

Answer 12

Recklessness involves a CONSCIOUS. deliberate taking of a risk. 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 13

Killing in pursuit of an unlawful object section 167(d),

What was found in R v Desmond?

Answer 13

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 14

What issues did the Court look at in R v Mckeown in relation to section 167(d)?

Answer 14

• Whether the defendant kndw the acts were likely to cause death AND
• whether the defendant’s ORIGINAL intent of indecent assault amounted to an unlawful OBJECT

Question 15

Murder committed in the execution of COMMON PURPOSE…what section provides responsibility?

Answer 15

Section 66(2) - two or more have the common intention to prosecute any unlawful purpose. Each of them are party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be probable consequence of the prosecution of the common purpose.

Question 16

What does section 168 (extended definition of murder) be read in conjunction with in relation to parties?

Give an example of this?

Answer 16

It must be read with s 158 to s 166.

It is sufficient that the offender does any of the acts listed in section 168.

In subsection (1)(a) “grievous bodily injury”. To come within subsection (1)(c) the stopping of the victim’s breath needs to be done willfully.

Question 17

Does the second party need to know what the principal party might do to cause death?

Answer 17

Yes he must know.

Question 18

Joint responsibility, if reliance is placed on subsections 1 and 2 of section 66 is it necessary that the secondary knew the death was a probable consequence of their execution of their primary purpose?

Answer 18

No, rather it be shown that the secondary party knew that the principal might do the act that would, if death ensued, bring their conduct within the terms of section 168.

Question 19

What section sets out the sentence of MURDER?

Answer 19

Section 172 - the sentence is imprisonment of life and subsection is subject to section 102 of Sentencing Act 2002.

Question 20

What is outlined in section 102 of Sentencing Act 2002?

Answer 20

(1) Must be sentenced to imprisonment UNLESS circumstances of the offence and the offender, a sentence would be manifestly unjust.
(2) If a Court does not impose a sentence of imprisonment for LIFE it must give written reasons for not doing so.

Question 21

Associated Murder Charges

What section creates a separate offence of attempted murder?

Answer 21

Section 173 - with an attempt to murder charge, the crown is responsible for establishing the mens rea and actus rea as set out in section 72

Question 22

What is the definition of Attempts in section 72?

Answer 22

72
(1) intent crime, does or omits an ACT for purpose of his object, is guilty of an attempted to commit the offence intended, whether in circumstances it was possible to commit the offence of NOT.

(2) It is a question of law whether act or omission with INTENT to commit crime IS or NOT only preparation and too remote to constitute an attempt to commit it.
(3) ACT OR OMISSION done with intent may constitute the offence of attempt if it is IMMEDIATE or PROXIMATELY connected whether or not there was any act unequivocally showing the intent to commit that offence.

Question 23

In section 72(1) intention must be proven, is this true and explain your answer?

And what is the caselaw that supports this?

Answer 23

Yes intention has to be proven to committed that crime in section 72(1). Reckless or negligence does not apply to an attempt.

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.

Question 24

what is the ALL BUT RULE in relation to attempts?

Answer 24

the offender must have omitted or acted in some way that is sufficient PROXIMATE to the full offence. The offender must have started the offence and gone beyond the preparatory stage.

Question 25

Can several acts amount to an ATTEMPT?

Answer 25

Yes, acts in isolation may look preparatory but when looked at it as a whole this may be more than preparatory and amount to an attempt.

Question 26

What was found in R v Harpur?

Answer 26

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 27

What is the test for proximity?

Answer 27

Simester and Brookbanks - suggest the following questions be asked when the mere preparation becomes an attempt.

• 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?

Question 28

Is proximity a question of law?

Answer 28

Yes it is a question of law and the Judge will decide based on the assumption that the facts of the case are proved.

Question 29

What is the sentence and section for attempted murder?

Answer 29

Section 173 states that a person who is convicted of attempted murder is liable to imprisonment for a term not exceeding 14 years.

Question 30

What is the penalty for a people who couselling or attempting to procure murder?

Answer 30

It is 10 years imprisonment which is covered in section 174.

A person who incites, counsels or attempts to procure any person to murder any other person in New Zealand, when that murder is not in fact been committed.

Question 31

What section is Conspiracy to Murder?

Answer 31

Section 175

Everyone 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.

Question 32

What is the section to Accessory After the fact to murder?

And what is the penalty?

Answer 32

Section 176

Every is liable to 7 years imprisonment if convicted for accessory after the fact to murder.

Question 33

What is the caselaw that relates to being an accessory after the fact?

(Section 71(1) to a charge of murder

Answer 33

R v Mane

For a person to be 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 when the actus reus of the alleged criminal conduct was wholly completed before the offence of homicide was completed.

Question 34

Manslaughter

In relation to Manslaughter, what two distinctions are drawn from Common Law?

Answer 34

• Involuntary Manslaughter

- Voluntary Manslaughter

Question 35

What is voluntary Manslaughter?

Answer 35

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

Question 36

What is involuntary manslaughter?

Answer 36

It covers those types of unlawful killing in which the death is caused by an UNLAWFUL ACT or GROSS NEGLIGENCE. In such cases there was no intention to kill or cause grievous bodily harm.

Question 37

Manslaughter then, includes culpable homicide that:

Answer 37

• Does not come within s 167 or 168
• comes within ss 167 and 168 but is reduced to manslaughter because the killing was a part of a suicide pact as defined in 180(3) of the Crimes Act 1961

Question 38

When there is a killing in a sudden fight, you need to consider whether there was?

What should you consider when you decide the WAY in which the killing should be viewed?

Answer 38

• Self defence
• the requisite mens rea for a murder charge

It is crucial to view it in the following:

• If the homicide can be justified as having arisen out of self-defence section 48 the proper verdict is an acquittal.
• if the fact there was a fight negates that the defendant had the required mens rea to bring a charge of murder within section 167 the proper verdict is manslaughter.

Question 39

Manslaughter by an Unlawful Act - What section deals with this? Newbury and Jones outlines the four point test for this, what is it?

Answer 39

Section 160(2)

1. The defendant must INTENTIONALLY do an act
2. The act must be UNLAWFUL
3. The must be DANGEROUS
4. The act must cause CAUSE death

Question 40

Manslaughter by NEGLIGENCE, what are some of the situations where negligence can be caused?

Answer 40

• Operating trains
• factory machinery
• mines
• motor vehicles
• ships or weapons
• while administering medication or surgical treatment

Question 41

In relation to Manslaughter, what elements would need to be proven if a person kills a colleague when operating heavy machinery?

Answer 41

The person would have to have taken a riskily and negligent action.

Question 42

Is there a defence if the killed person agreed to the action that he or she was a part of it?

Answer 42

No, there is no defence if a person consents.

Question 43

What degree of proof does prosecution have to prove when it comes to section 150A(1)?

Answer 43

Prosecution have to prove a very high degree of NEGLIGENCE or GROSS NEGLIGENCE.

Question 44

What does section 150A(1) cover?

Answer 44

(a) It says this section covers 151, 152, 153, 155, 156 and 157; and
(b) an unlawful act referred to in section 160 where the unlawful act relied on requires proof of negligence or is a strict or absolute liability offence.

Question 45

What does section 150A(2) state?

Answer 45

a person is criminally RESPONSIBLE for
OMITTING to discharge OR perform a legal DUTY, performing an UNLAWFUL Act, to which this section applies only if, in the circumstances, the omission or unlawful act is a MAJOR DEPARTURE from the standard of care EXPECTED of a reasonable person to whom that legal duty applies or who performs that unlawful act.

Question 46

What is the MAJOR DEPARTURE test?

Answer 46

It requires a high degree of negligence. ?????

Question 47

What is the OBJECTIVE test?

Answer 47

It is applied to determine if the defendant has been NEGLIGENT and whether it has been a MAJOR departure.

Question 48

Is the defendant’s state of mind a prerequisite for a conviction for manslaughter?

Answer 48

No, in relation to the state of mind it doesn’t have to be, however it is relevant.

Question 49

What is the penalty for manslaughter?

Answer 49

Section 177 outlines that everyone who commits manslaughter is liable to an imprisonment sentence of life.