General knowledge Flashcards
What is Homicide?
Homicide is the killing of one human being by another, directly or indirectly, by any means whatsoever. Before it becomes a criminal charge, it must be proved that the killing was blameworthy or culpable.
Critical factors to consider for a charge of murder are:
If the offender intended to:
- Kill the person, or
- Cause bodily injury that the offender knew was likely to cause death
(were their actions intentional or deliberate)
(if neither of these can be proven, the most likely charge is manslaughter)
What is manslaughter?
You can charge an offender with manslaughter in any case where a person has been killed in a manner that does not amount to murder. As the burden of proof regarding intent rests with the prosecution, a jury may return a verdict of manslaughter if it feels intent or any other elements of murder has not been proved. Survivor of a suicide pact is liable to be charged with manslaughter only.
Homicide must be culpable to be an offence however:
- Manslaughter; an organisation can be convicted as a party to the offence s66(1)
- Murder, an organisation cannot be convicted as either a principle offender or party to the offence. This is because the offence carries a mandatory life sentence.
Culpable homicide s160(1) & 2 CA
1) Homicide may be either culpable or not
2a) by an unlawful act; or
b) by an omission without lawful excuse to perform or observe any legal duty; or b
c) by both combined; or
d) by causing that person by threats or fear of violence, or by deception, to do an act which cause his death
Voluntary manslaughter
Mitigating circumstances, such as suicide pact, reduce what would otherwise be murder to manslaughter, even though the defendant may have intended to kill or cause GBH.
Involuntary manslaughter
Unlawful killing in which death is caused by an unlawful act or gross negligence. No intention to kill or cause GBH.
Manslaughter includes culpable homicide that;
- does not come within s167 and s168
- comes under s167 or s168 but is reduced to manslaughter because the killing was part of a suicide pact as defined in s180(3) of CA.
Killing in a sudden fight
- self defence or the requisit mens rea for a murder charge
Crucial to consider these to decide in which way killing should be viewed:
- self defence s48- verdict is acquittal
- the fact there was a fight negates that the defendant had the required mens rea to
Bring a charge of murder within s167 the proper verdict is manslaughter
S160(2) manslaughter by unlawful act
4 point test for proving unlawful act for manslaughter-
- Intentionally do an act
- the act must be unlawful
- act must be dangerous
- act must cause death
Manslaughter by negligence
- eg in charge of train, ships, machinery, vehicles, mines or weapons, or while administering medical or surgical treatment
Wilfully frightening
is regarded as “intending to frighten” or at least be reckless to this
“A year and a day” s162 CA
death must be within a year and a day
1) no one is responsible for the killing of another unless the death takes place within a year and a day after the cause of death
2) the period of a year and a day shall be reckoned inclusive of the day on which the last unlawful act contributing to the cause of death took place
3) where the cause of death was an omission to fulfil the legal duty, the period shall be reckoned inclusive of the day on which such omission ceased
4) where death is in part caused by an unlawful act an in part by an omission, the period shall be reckoned inclusive of the day the last unlawful act took place or the omission ceased whichever happened last
s163 CA
No one is criminally responsible fort he killing of another by an influence on the mind alone, except by wilfully frightening a child under the age of 16yrs or a sick person, nor the killing of another by any disorder or disease arising from such influence, except wilfully frightening any such child as aforesaid or sick person.
A question of law relating to whether the condition is a disease of the mind is answered by-
Judge
What the accused state of mind was at the time of the offence is question decided by:
Jury
Burden of proof for insanity:
Accused is not required to prove the defence of insanity beyond reasonable doubt, but to the satisfaction of the jury on the balance of probabilities
R V Cottle
As to degree of proof- it is sufficient if the plea is established to the satisfaction of the jury on a preponderance of probabilities without necessarily excluding all reasonable doubt
MNaghtens rules
Frequently used to establish whether or not defendant is insane. It is based on the persons ability to think rationally, so that if a person is insane they were acting under such a defect of reason from a disease of the mind that they did not know:
- the nature and quality of their actions: or
- that what they were doing was wrong
In general no one is criminally responsible for the killing of another by any influence of the mind. Except:
- wilfully frightening a child under 16yrs of age
- wilfully frightening a sick person (mentally or physically)
What 3 points must be satisfied before a defence of compulsion can be used:
- they have been compelled to commit the offence by someone at the scene who had threatened them that they would otherwise be killed or cause GBH
- the defendant must have generally believed the threats and must not be a part to any association or conspiracy in carrying out the threats
- the threats of death GBH must be immediate and from a person present at the time
What is meant by justified:
Some acts are justified even when they result in death. S2 provides when an act is justified the perpetrator is exempt from both criminal and civil liability. Eg
- homicide committed in self defence s48
- homicide committed to prevent suicide of commission of an offence which would likely cause immediate and serious injury to the person or property of anyone
Entrapment:
When and agent of enforcement body deliberately causes a person to commit and offence so that person can be prosecuted. Nz courts have rejected entrapment as a defence, preferring to instead rely on the discretion of the trial judge to exclude evidence that would operate unfairly against the accused.
S48 self defence or defence of another
Everyone is liable in using
In the defence of himself or another
Such force as in the circumstances as he believes them to be
It is reasonable to use
S48 self defence or defence of another subjective and objective test
Sub- accused deciding that the use of force was required in the circumstances as they were known to them
Ob- was the force reasonable as to the degree and manner it was used in the circumstances
Degree of force self defence- degree of force permitted is tested initially under following criteria: the
- what are the circumstances that the defendant genuinely belive exists
- did the defendant genuinely believe those facts
- is the force used reasonable in the circumstances as they existed
Automatism
A state of total blackout, during which a person is not conscious of their actions and not in control of them
Sane- sleepwalking, a blow to the head of the effect of drugs
Insane- the result of metal disease
Nz courts dealing with a defence of automatism arising out of alcohol and drugs
Steer a middle course, allowing a defence of automatism arising out of taking alcohol or drugs ti offences of basic intent only. They are likely to disallow the defence where the state of mind is obviously self induced, the person blameworthy and the consequences could have been expected
R V Lipman
Where automatism is brought about by a voluntary intake of alcohol or drugs, the court may be reluctant to that the actions were involuntary or that the offender lacked intention
Intoxication
Most offences under CA requires a general intent (mens rea) merely that because of their drunkness state they did not have the proper state of mind to be guilty-
The defence of intoxication will be available to the defence to establish that the defendant did not have the required intent to carry out the offence
General rules regarding intoxication
In the past it has been no defence to a criminal charge and indeed an aggravating rather then mitigating factor. Intoxication may be a defence to the commission of an offence
- where intoxication causes a disease off the mind so as to bring s23 of the CA (insanity) into effect
- if intent is required as an essential element of the offence and the drunkenness is such that the defence can plead a lack of intent to commit the offence
- where the intoxication causes a state of automatism (complete ecquital)
Alibi
Written notice of alibi is to be given by the defendant within 10 working days after the defendant is given notice under s20 of the criminal disclosure act 2008.
Notice of alibi pursuant to s22(3)(a) of criminal disclosure act 2008, notice under sub section (1) Must include name and address of the witness or if the name and address is not known to the defendant when the notice id given any matter by the defendant that might be material assistance in finding that witness
Alibi definition
Is the plea in a criminal charge of having been elsewhere at the material time “the fact of being elsewhere”
S25 of CA61 - ignorance of law
The fact that an offender is ignorant of the law is not an excuse for any offence committed by him
Procedure when alibi witness interviewed;
OC should not interview unless the prosecutor requests them to do so;
- advise defence counsel of proposed interview and give them a reasonable opportunity to be present
- if the accused is not represented, endeavour to ensure witness is interviewed in the presence of some independent person not being a member of the police
- make a copy of a witness signed statement taken at any such interview available to defence and prosecutions
- any information that reflects on the credibility of the alibi witness can be withheld under s16(1)(o)
If defendant calls expert witness during proceedings what must they disclose to prosecutions?
- any brief of evidence to be given or any report provided by that witness or
- if these are not available a summary of evidence to be given and the conclusions of any report provided,
-this info must be disclosed at least 14 days before the date fixed for the defendants hearing or trial, or within any further time that the court may allow
Legal duties of a parent/guardian s152 of CA
A) to provide that child with necessaries and
B) to take reasonable steps to protect that child from injury
Define legal duty/
Refers to those duties imposed by statue or common law including uncodified law duties
s154 abandoning a child under 6yrs
Everyone is liable to imprisonment for a term not exceeding 7 years who
- unlawfully abandons or exposes any child
- under the age of 6years
culpability for children under 10 and children 10-13yrs
Under 10- a child ages under 10 years has an absolute defence to any charge brought against them. Nevertheless even though the child cannot be convicted you still have to establish whether or not they are guilty
10-13yrs- it must be shown that the child knew their act was wrong or contrary to the law. If this knowledge cannot be shown the child cannot be criminally liable for the offence
s181CA concealing a dead body of a child)
Everyone is liable for a imprisonment for a term not exceeding 2 years who
- disposes of the dead body of any child in any matter
- with intent to conceal the fact of its birth, whether the child died before or during or after birth
S159(1) & (2) defines when Child becomes a human being therefore able to be murdered under s158
159(1) a child becomes a human being within the meaning of this act when it has completely proceeded in a living state from the body of its mother, whether it has breathed or not, whether it has an independent circulation or not, and whether the navel string is severed or not
159(2) the killing of such a child is homicide if it dies in consequence of injuries received before or during or after birth
Provide the guidelines in respect of consent regarding assault-
- everyone has the right to consent to surgical operation
- everyone has the right to consent to the infliction of force not involving bodily harm
- ## None has the right to consent to their death or injury likely to cause death
A hearsay statement is admissible in any proceedings if-
A) the circumstances relating to the statement provide reasonable assurances that the statement is reliable and
B) either
I) the maker of the statement is unavailable as a witness or,
II) the judge considers that unde expense or delay would be caused if the maker of the statement were required to be a witness
