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
(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- 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
Sufficiently Proximate
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.
Attempts- R v Harpur
[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.
The test for proximity
- 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?
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
Every one who attempts to commit murder is liable to imprisonment for a term not exceeding 14 years.
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
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.
Accessory after the fact to murder
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 actively suppresses any evidence against him, in order to enable him to escape after arrest or to avoid arrest or conviction.
Accessory- R v Mane
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.
