2. Murder and Manslaughter Pages 23-40

Question 1

Define intent

Answer 1

Intent to commit the act and intent to get a specific result

Question 2

Section 167: Murder defined. Culpable homicide is murder in each of the following cases:

Answer 2

1. Offender means to cause the death of the person killed
2. Offender means to cause an injury, known to be likely to cause death, to the person killed, and is reckless whether death ensues – guy whacks his mate in the head with a hammer cos he slept with his wife, and mate dies.
3. Offender means to cause death to one person, or is reckless as 2 above, but by accident/mistake kills another person – guy stabs at his wife intending to kill her, she is holding a baby, guy misses and stabs the baby and baby dies.
4. Offender, with an unlawful objective, does an act that could likely cause death, and kills someone – even if he intended his objective to be carried out without hurting anyone – see below

Ie. if someone intends to do something unlawful, but doesn’t want anyone to get hurt – but he does something that might result in death, and then kills someone.
Ie. bad guy breaks into a cinema at night to steal money. He hears security guards coming in, so he panics and puts a metal bar across the dark stairwell to slow them down, and a guard trips and bangs his head and dies. That would satisfy 4.

Question 3

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:

Answer 3

(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.

Question 4

If you are charging an offender with murder under s167 you must show that the defendant

Answer 4

• Intended to cause the death , or
• Knew that death was likely to ensue , or
• Was reckless that death would ensue

Question 5

To show that the defendant’s state of mind meets the provisions of s167(b) you must establish that the defendant:

Answer 5

• 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

Question 6

When a party to an offence, does the secondary party have to know that the principle party might do the act that causes death?

Answer 6

Yes

Question 7

When party to an offence, does the secondary party have to know that death was a probable consequence of carrying out the primary purpose?

Answer 7

No

Question 8

Define “Attempts” under section 72 of the CA 1961

Answer 8

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

Question 9

SA 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?

Answer 9

• 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

Question 10

What is the penalty for attempted murder?

Answer 10

14 years

Question 11

What are the ingredients described in counselling or attempting to procure murder?

Answer 11

Incites
Counsels
Attempts to procure
Any person to murder any other person in New Zealand, when that murder is not in fact committed

Question 12

Can conspiracy to murder be committed even if a murder is not committed?

Answer 12

Yes

Question 13

Explain voluntary manslaughter

Answer 13

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

Question 14

Explain involuntary manslaughter

Answer 14

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

Question 15

Manslaughter includes culpable homicide that:

Answer 15

• 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

Question 16

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

Answer 16

• Self defence

- The requisite mens rea for a murder charge

Question 17

Manslaughter by unlawful act: What is the four point test for proving an unlawful act for manslaughter?

Answer 17

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 18

contributory negligence: If the deceased contributed to their own death by their own negligence, does this afford the defendant a defence against manslaughter?

Answer 18

No

Question 19

If a case relates to an unlawful act or omission what must be shown?

Answer 19

Gross negligence

Question 20

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

Answer 20

No

Question 21

What is the essence of gross neglect?

Answer 21

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

Question 22

what are some associated murder charges?

Answer 22

• Attempt to murder
• Counselling or attempting to procure murder
• Conspiracy to murder
• Accessory after the fact to murder

Question 23

Common law defines two distinct types of manslaughter”

Answer 23

• Voluntary manslaughter

- Involuntary manslaughter

Question 24

If an offender intends to kill A but inadvertently strikes the fatal blow to B, is the offender still guilty of murder?

Answer 24

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.

Question 25

In a charge of attempt to murder, what is the Crown required to prove?

Answer 25

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.

Question 26

Define voluntary and involuntary manslaughter.

Answer 26

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.

Question 27

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 27

• self-defence

- the requisite mens rea for a murder/manslaughter charge.

Question 28

SA Define Recklessness

Answer 28

Consciously and deliberately taking an unjustifiable risk

**subjective/objective test - aware of the risk & continued regardless & it was unreasonable for him to do so

Question 29

SA Cameron V R

Answer 29

Recklessness is established if
a - the defendant recognised that there was a real possibility that:
his/her actions would bring about the proscribed result AND/OR
That the proscribed circumstances existed AND
b- having regard to that risk those actions were unreasonable

Question 30

SA Why is attempted murder one of the most difficult offences in the Crimes Act 1961 to prove beyond reasonable doubt?

R v MURPHY

Answer 30

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 31

MC Proximity is a question of law decided by whom

Answer 31

The judge

Question 32

SA In the test for proximity, Simester and Brockbanks (Principles of Criminal Law 224) suggest the following questions should be asked in determining the point at which an act of mere preparation of committing a crime may become an attempt. What are those two questions?

Answer 32

• 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 crime itself?

Question 33

SA What was held in R v Mane?

Answer 33

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 reus of the alleged criminal conduct was wholly completed before the offence of homicide was completed.

Question 34

SA What are the ingredients to accessory after the fact to murder?

Answer 34

Knowing any person to have been party to murder, receives, comforts, assists that person or tampers with or actively suppresses evidence against that person in order to enable him to escape after arrest or to avoid conviction.

Question 35

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

Answer 35

A very high degree of negligence or gross negligence