Associated Murder Charges Flashcards
Attempt to murder
Section 173 creates a separate offence of attempted murder. With an attempt
to murder charge, the Crown is responsible for establishing the mens rea and
actus rea as set out in s72:
Attempting to commit an offence
Section 72, Crimes Act 1961
Definition of attempts
(1) 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.
(2) The question whether an act done or omitted with intent to commit an offence is or is not only preparation for the commission of that offence, and too remote to constitute an attempt to commit it, is a question of law.
(3) An act done or omitted with intent to commit an offence may constitute an attempt if it is immediately or proximately connected with the intended offence, whether or not there was any act unequivocally showing the intent to commit that offence.
Intent must be established
The requirement for “intent” in section 72(1) suggests that only an intention
to commit the offence will be sufficient and that there cannot be an attempt
where an offence is defined solely in terms of recklessness or negligence.
Therefore, this requirement on the Crown means that attempted murder is
one of the most difficult offences in the Crimes Act to prove beyond a
reasonable doubt.
R v Murphy [1969] NZLR 959.
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:
Act(s) must be sufficiently proximate to the full offence
Generally, to prove an attempt the defendant must have done or omitted to
do some act(s) that is/are sufficiently proximate (close) to the full offence.
Effectively, the defendant must have started to commit the full offence and
have gone beyond the phase of mere preparation – this is the “all but” rule.
Several acts together may constitute an attempt
However, independent acts, which if looked at in isolation, might simply be
construed as preparatory, can take on a different context when looked at
collectively and therefore amount to a criminal attempt.
In the matter of R v Harpur8
, the defendant had carried out a number of acts
which, taken together, constituted an attempt to commit sexual violation.
The defendant had moved beyond the point of preparation and was lying in
wait for his victim at which time he was arrested. The Court determined that
the defendant’s conduct was not too remote to constitute an attempt; it was
proximately connected with the intended offence:
R v Harpur [2010] NZCA 319, (2010) 24 CRNZ 909
[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.
Proximity
The determination of proximity is an inconclusive one and will come down
to the circumstances as they exist for each individual offence that is being
investigated.
Ask yourself: ‘Do the facts show mere preparation, or are the defendant’s
acts or omissions immediately or sufficiently proximate to the intended
offence?’
The test for proximity
Simester and Brookbanks9 suggests the following questions should be asked
in determining the point at which an act of mere preparation may become 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?
If the answer to either question 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.
Proximity is a question of law
Proximity is a question of law; it is a question that is decided by the judge
based on the assumption that the facts of the case are proved.
Punishment of attempted murder
173 Attempt to murder
Every one who attempts to commit murder is liable to imprisonment for a term not
exceeding 14 years.
Counselling or attempting to procure murder
The offences of counselling or attempting to procure murder are detailed in
s174.
174 Counselling or attempting to procure murder
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 New Zealand, when that murder is not in fact committed.
Where murder actually committed or attempted
Section 174 applies where murder is not in fact committed. If the person
incited or counselled commits murder, the parties’ provisions of s 66(1)(d)
will apply to the inciter or counsellor.
Where murder is attempted but not in fact committed, an inciter, counsellor
or procurer will be liable as a party under s 66(1)(d) to an attempt to murder
under s 173.
Conspiracy to murder
Section 175 deals with conspiracy to murder.
175 Conspiracy to murder
(1) 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 New Zealand or elsewhere.
(2) For the purposes of this section, the expression To murder includes to cause the death of another person out of New Zealand in circumstances that would amount to murder if the act were committed in New Zealand.
Section 175 may apply regardless of whether murder is committed or not.
Accessory after the fact to murder`
The punishment for an accessory after the fact to murder is provided for in
s176.
176 Accessory after the fact to murder
Every one is liable to imprisonment for a term not exceeding 7 years who is an accessory after the fact to murder.
The definition of an accessory after the fact is given in section 71(1) of the
Crimes Act 1961
