2. Murder and Manslaughter pages 23-39 Flashcards
Define intent
Intent to commit the act and intent to get a specific result
Section 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.
Section 168: Culpable homicide is also murder in each of the following cases, whether the offender means or does not mean death to ensue, or does not know that death is likely to ensue:
(a) If he means to cause grievous bodily 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 apprehension 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 wilfully stops the breath of any person for any of the purposes aforesaid, and death ensues from such stopping of breath.
If you are charging an offender with murder under s167 you must show that the defendant
- Intended to cause the death , or
- Knew that death was likely to ensue , or
- Was reckless that death would ensue
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
When a party to an offence, does the secondary party have to know that the principle party might do the act that causes death?
Yes
When party to an offence, does the secondary party have to know that death was a probable consequence of carrying out the primary purpose?
No
Define “Attempts” under section 72 of the CA 1961
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,
whether in the circumstances it was possible to commit the offence or not
The test for proximity: Simister and Brookbanks suggests the following questions should be asked in determining the point at which an act of mere preparation may become an attempt.
What are the questions and what conclusions can be drawn?
- 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; that is to say, has he taken a step in the actual offence itself?
If the answer to either questions is “yes” then we can say there has been an attempt as a matter of law. If not, the conduct can be classed as preparation and is not an offence
What is the penalty for attempted murder?
14 years
What are the actions described in counselling or attempting to procure murder?
Incites
Counsels
Attempts to procure
Any person to murder any other person in New Zealand, when that murder is not in fact committed
Can conspiracy to murder be committed even if a murder is not committed?
Yes
Explain voluntary manslaughter
Mitigating factors such as suicide pact reduce what would otherwise be murder to manslaughter, even though the defendant may have intended to kill or cause GBH
Explain involuntary manslaughter
Covers those types of unlawful killings 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
Manslaughter includes culpable homicide that:
- Does not come within s167 or 168
- Comes within 167 and 168 but is reduced to manslaughter because the killing was part of a suicide pact as defined in s180 of CA
When you come across a killing that is a result of a sudden fight, you need to consider whether there was:
- Self defence
- The requisite mens rea for a murder charge
Manslaughter by unlawful act: What is the four point test for proving an unlawful act for manslaughter?
- The defendant must intentionally do an act
- The act must be unlawful
- The act must be dangerous
- The act must cause death
contributory negligence: If the deceased contributed to their own death by their own negligence, does this afford the defendant a defence against manslaughter?
No
If a case relates to an unlawful act or omission what must be shown?
Gross negligence
Is the defendant’s state of mind a prerequisite for conviction by manslaughter by gross negligence?
No
What is the essence of gross neglect?
Whether having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount to a criminal act or omission
what are some associated murder charges?
- Attempt to murder
- Counselling or attempting to procure murder
- Conspiracy to murder
- Accessory after the fact to murder
Common law defines two distinct types of manslaughter”
- Voluntary manslaughter
- Involuntary manslaughter
If an offender intends to kill A but inadvertently strikes the fatal blow to B, is the offender still guilty of murder?
In a case where an offender intends to kill A but inadvertently strikes and kills B, the guilt of the offender is not affected. Section 167(c) states that if the offender means to cause the death of one person and by mistake or accident kills another, even though he did not mean to hurt the other person, then it is murder.
In a charge of attempt to murder, what is the Crown required to prove?
When a charge of attempt to murder is made, the Crown must establish the mens rea and actus rea as set out in s72 of the Crimes Act 1961. An intention to kill must be proved.
Define voluntary and involuntary manslaughter.
In 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.
Involuntary manslaughter covers those types of unlawful killing in which death is caused by criminal negligence. In such cases there has been no intention to kill or cause grievous bodily harm.
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?
- self-defence
- the requisite mens rea for a murder/manslaughter charge.
