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Homicide 013 Flashcards

1
Q

List the three main types of culpable homicide.

A

Murder, manslaughter, infanticide

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2
Q

What are the critical factors to consider when deciding whether a charge should be murder or manslaughter?

A

Whether the offender intended to:
- kill the person or
- cause bodily injury that the offender knew was likely to cause death

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3
Q

s158, CA 1961 (Must Know)(Hd)

A

s158 Homicide defined
Homicide is the killing of a human being by another, directly or indirectly, by any means whatsoever.

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4
Q

Can an organisation be convicted of murder or manslaughter?

A

An organisation can be convicted as a party to manslaughter (s66(1)).

For murder, an organisation cannot be convicted either as a principal offender or a party because the offence carries a mandatory life sentence.

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5
Q

Murray Wright Ltd (case law)

A

Because the killing must be done by a human being, an organisation (such as a hospital or food company) cannot be convicted as a principal offender.

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6
Q

When does a child become a human being according to s159(1), CA 1961? (Must Know)

A

159 Killing of a child
(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.

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7
Q

s160(2), CA 1961 (Must Know)
(UaOBFoVWf)

A

s160 Culpable homicide
(2) Homicide is culpable when it consists in the killing of any person
(a) By an unlawful act or
(b) By an omission without lawful excuse to perform or observe any legal duty or
(c) By both combined or
(d) By causing that person by threats or fear of violence or by deception to do an act which causes his death or
(e) By wilfully frightening a child under the age of 16 years or a sick person.

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8
Q

R v Myatt (Breach)

A

Before a breach of any Act, regulation or bylaw would be an unlawful act under s160 for the purposes of culpable homicide it must be an act likely to do harm to the deceased or to some class of persons of whom he was one.

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9
Q

Explain the test contained in s150A(2), CA 1961. (Nice to know)(O)

A

The omission or unlawful act is a major departure from the standard of care expected of a reasonable person to whom that legal duty applies or who performs that unlawful act.

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10
Q

What are the four questions posed in R v Tomars relating to s160(2)(d)? (Must Know) (TCNF)

A
  1. Was the deceased threatened by, in fear of or deceived by the defendant?
  2. If they were, did such threats, fear or deception cause the deceased to do the act that caused their death?
  3. Was the act a natural consequence of the actions of the defendant, in the sense that a reasonable and responsible person in the defendant’s position at the time could reasonably have foreseen the consequences?
  4. Did these foreseeable actions of the victim contribute in a significant way to his death?
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11
Q

In the case of a death from lawful games or contests in what situation would a contestant possibly be found guilty of manslaughter?

A

If the contestant causes the death of another by an act that is likely to cause serious injury.

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12
Q

What must be done to establish/prove the death? (DoDidKc)

A

Must prove:
- death occurred
- deceased is identified as the person who has been killed
- the killing is culpable

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13
Q

R v Horry (where a body is not located)

A

Death should be provable by such circumstances as render it morally certain and leave no ground for reasonable doubt - that the circumstantial evidence should be so cogent and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for.

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14
Q

s167, CA 1961 (Must Know) (MD)

A

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 the person, though he may have desired that his object should be effected without hurting anyone.

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15
Q

What are the two types of intention in an offence?

A

An intention to commit the act and an intention to get a specific result.

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16
Q

If you are charging an offender with murder under s167, what must you show in relation to the offender’s intent to cause death? (ILR)

A

The defendant:
- intended to cause death or
- knew that death was likely to ensue, or
- was reckless that death would ensue

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17
Q

What needs to be established to show that the defendant’s state of mind meets the provisions of s167(b)? Murder Defined (Must Know)(IDR)

A

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

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18
Q

R v Piri

A

Recklessness (here) involves a conscious, deliberate risk taking. The degree of risk of death foreseen by the accused under either s167(b) or (d) must be more than negligible or remote. The accused must recognise a “real or substantial risk” that death would be caused.

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19
Q

R v Desmond (Must Know)(UA)

A

Not only must the object be unlawful, but also the accused must know that his act is likely to cause death. It must be shown that his knowledge accompanied the act causing death.

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20
Q

s66(2), CA 1961 (Nice to know)

A

S66 Parties to offences
(2) Where two or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose.

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21
Q

s66(1), CA 1961 (Nice to know)(COAI)

A

(1) Every one is a party to and guilty of an offence who—
(a) actually commits the offence; or
(b) does or omits an act for the purpose of aiding any person to commit the offence; or
(c) abets any person in the commission of the offence; or
(d) incites, counsels, or procures any person to commit the offence.

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22
Q

When charging someone as a party to murder under s66(1) or (2), what must be shown in regards to the secondary party’s knowledge? (nice to know)

A

It is not necessary to show that they knew the death was a probable consequence of carrying out the primary purpose. It must be shown that they knew it was a probable consequence that the principal might do an act that would, if death ensued, bring their conduct within the terms of s168.

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23
Q

S72 CA 1961 (Must Know)(Att)

A

S72 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.

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24
Q

R v Murphy (Attemps/Intent)

A

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.

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25
Q

Explain the term ‘sufficiently proximate’.

A

The defendant must have started to commit the full offence and have gone beyond the phase of mere preparation.

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26
Q

R v Harpur

A

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.

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27
Q

What are the two questions suggested by Simester and Brookbanks as a test for proximity? (Test for proximity) (Must Know)

A
  • 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?
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28
Q

What is the punishment for attempted murder? (Must Know)

A

s173 - Everyone who attempts to commit murder is liable to imprisonment for a term not exceeding 14 years

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29
Q

s174, CA 1961 (Must Know)(CounAM)

A

174 Counselling or attempting to procure murder
Everyone 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.

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30
Q

What would be the appropriate charge for someone who incites, counsels or procures where murder is attempted but not committed. Include act and section.

A

Party to Attempt to Murder
s173 and 66(1)(d), CA 1961

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31
Q

s175(1) (Must Know)(Cons + penalty)

A

175 Conspiracy to murder
(1) Everyone 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.

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32
Q

s176, CA 1961 (Nice to know)(AATF Penalty)

A

s176 Accessory after the fact to murder
Everyone is liable to imprisonment for a term not exceeding 7 years who is an accessory after the fact to murder

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33
Q

s71(1), CA 1961 (nice to know)(AATF)

A

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 or her, in order to enable him or her to escape after arrest or to avoid arrest or conviction.

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34
Q

R v Mane (Acc)

A

Short version: To be considered an accessory the acts done by the person must be after the completion of the offence.

Long version: 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.

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35
Q

Identify and explain the two different types of manslaughter in common law. (Must Know)

A

Voluntary manslaughter - mitigating circumstances (eg. suicide pact) reduce what would otherwise be murder to manslaughter even though defendant may have had intent to kill or cause GBH.

Involuntary manslaughter - Death is caused by an unlawful act or gross negligence. No intent to kill or cause GBH.

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36
Q

When you come across a killing that is a result of a sudden fight, what needs to be considered? (Must Know)

A

Whether there was
- self-defence
- the requisite mens rea for a murder charge

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37
Q

When there is a killing in a sudden fight, outline the different ways in which the killing could be viewed. (Must Know)

A
  • Homicide could be justified as having arisen out of self-defence (s48). Proper verdict would be an acquittal.
  • If 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.
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38
Q

What is the four point test outlined in Newbury and Jones for proving an unlawful act for manslaughter? (Must Know)(IUDD)

A
  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
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39
Q

What is the punishment for manslaughter?

A

Everyone who commits manslaughter is liable to imprisonment for life.

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40
Q

s178(1), CA 1961 (Must Know)(Inf)

A

Where a woman causes the death of any child of hers under the age of 10 years in a manner that amounts to culpable homicide, and where at the time of the offence the balance of her mind was disturbed, by reason of her not having fully recovered from the effect of giving birth to that or any other child, or by reason of the effect of lactation, or by reason of any disorder consequent upon childbirth or lactation, to such an extent that she should not be held fully responsible, she is guilty of infanticide and not of murder or manslaughter, and is liable to imprisonment for a term not exceeding three years.

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41
Q

In charges of infanticide, who decides on the mother’s state of mind? (Must Know)

A

The jury

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42
Q

Define the term ‘vulnerable adult’. (Nice to know) (DASMi)

A

A person unable, by reason of detention, age, sickness, mental impairment, or any other cause, to withdraw himself or herself from the care or charge of another person.

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43
Q

s154, CA 1961 (Must Know)(AbC) + penalty

A

154 Abandoning child under 6

Every one is liable to imprisonment for a term not exceeding 7 years who unlawfully abandons or exposes any child under the age of 6 years.

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44
Q

According to s163, noone is criminally responsible for the killing of another by any influence on the mind alone or by any disorder or disease arising from such influence, with two exceptions. What are those exceptions?

A

Wilfully frightening a child under the age of 16 years or a sick person

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45
Q

s163, CA 1961 (Must Know)(WF)

A

Killing by influence on the mind
No one is criminally responsible for the killing of another by any influence on the mind alone, except by wilfully frightening a child under the age of 16 years or a sick person, nor for the killing of another by any disorder or disease arising from such influence, except by wilfully frightening any such child as aforesaid or a sick person.

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46
Q

Outline R v Blaue. What was the finding in this case? (Nirvana)

A

The victim (JW) had been stabbed but refused blood transfusion on religious grounds. Despite warning she persisted and died the following day. Cause of death was bleeding into pleural cavity caused by stabbing. Appeal against conviction of manslaughter on ground that her refusal was unreasonable and broke chain of causation…dismissed.

R v Blaue
Those who use violence must take their victims as they find them.

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47
Q

What was held in R v Tarei in regards to life support? (Not verbatim)

A

The withdrawal of any form of life support system is not ‘treatment’ under s166, CA 1961. To withdraw life support does not cause death but removes the possibility of extending the person’s life through artificial means.

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48
Q

What were the two rules stated by The English Court of Appeal in R v Jordan? (Nice to know)(Felonious injury)

A
  • Death resulting from any normal treatment employed to deal with a felonious injury may be regarded as caused by the injury.
  • In other circumstances it is a question of fact to establish a causal connection between the death and the felonious injury,
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49
Q

Define the term ‘novus actus interviens’. (Nice to know)

A

[Latin: a new intervening act] An intervening act that breaks the chain of causation.

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50
Q

Outline R v Bristowe.

A

A woman placed weed killer in beer bottle to be drunk by her husband. Husband became ill and was treated in hospital for alcoholism over five days then died. Death found to be due to arsenic and Court ruled that causal chain of responsibility was not broken by unsatisfactory treatment.

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51
Q

s179(1), CA 1961 (AA Sui) + penalty

A

179 Aiding and abetting suicide

(1) Every one is liable to imprisonment for a term not exceeding 14 years who—
(a) incites, counsels, or procures any person to commit suicide, if that person commits or attempts to commit suicide in consequence thereof; or
(b) aids or abets any person in the commission of suicide

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52
Q

s180(1) and (2), CA 1961 (Must Know)(SuiP)

A

180 Suicide pact

(1) Every one who in pursuance of a suicide pact kills any other person is guilty of manslaughter and not of murder, and is liable accordingly.
(2) Where 2 or more persons enter into a suicide pact, and in pursuance of it 1 or more of them kills himself or herself, any survivor is guilty of being a party to a death under a suicide pact contrary to this subsection and is liable to imprisonment for a term not exceeding 5 years; but he or she shall not be convicted of an offence against section 179.

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53
Q

s181, CA 1961 (Must Know)(ConDBC)

A

181 Concealing dead body of child

Every one is liable to imprisonment for a term not exceeding 2 years who,
Disposes of the dead body of any child in any manner with intent to conceal the fact of its birth, whether the child died before, or during, or after birth

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54
Q

Define the term ‘justified’. (Must Know)

A

The person is not guilty of an offence and is not liable civilly.

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55
Q

Define the term ‘protected from criminal responsibility’.

A

The person is not guilty of an offence but civil liability may still arise.

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56
Q

Outline the defences for children including section. (Must Know)

A

21 Children under 10
(1) No person shall be convicted of an offence by reason of any act done or omitted by him or her when under the age of 10 years.

22 Children between 10 and 14
(1) No person shall be convicted of an offence by reason of any act done or omitted by him or her when of the age of 10 but under the age of 14 years, unless he or she knew either that the act or omission was wrong or that it was contrary to law.

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57
Q

R v Forrest and Forrest

A

The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victim’s age.

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58
Q

Explain the only 3 situations in which proceedings may lawfully be commenced under the Criminal Procedure Act 2011 against a child alleged to have committed an offence in s272(1), CYPF Act 1989.

A

(a) where the child is of or over the age of 10 years, and the offence is murder or manslaughter:
(b) where the child is aged 12 or 13 years, and the offence is one (other than murder or manslaughter) for which the maximum penalty available is or includes imprisonment for life or for at least 14 years:
(c) where the child is aged 12 or 13 years and is a previous offender under subsection (1A) or (1B), and the offence is one (other than murder or manslaughter) for which the maximum penalty available is or includes imprisonment for at least 10 years but less than 14 years.

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59
Q

Burden of proof, for children aged 10-13 years what must be shown? (Must Know)

A

it must be shown that the child knew their act was wrong or contrary to law.

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60
Q

s23(2), CA 1961 (Must Know)(Ins)

A

23 Insanity

(2) No person shall be convicted of an offence by reason of an act done or omitted by him or her when labouring under natural imbecility or disease of the mind to such an extent as to render him or her incapable—
(a) of understanding the nature and quality of the act or omission; or
(b) of knowing that the act or omission was morally wrong, having regard to the commonly accepted standards of right and wrong.

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61
Q

R v Cottle re the defence of insanity

A

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.

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62
Q

R v Clark re insanity

A

The decision as to an accused’s insanity is always for the jury and a verdict inconsistent with medical evidence is not necessarily unreasonable. But where unchallenged medical evidence is supported by the surrounding facts a jury’s verdict must be founded on the evidence which in this case shows that the accused did not and had been unable to know that his act was morally wrong.

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63
Q

Outline M’Naghten’s rules. (Must Know)(N&Q,W)

A

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.

64
Q

Who decides whether a particular condition is a disease of the mind?

A

Judge.

65
Q

R v Codere (N&Q)

A

The nature and quality of the act means the physical character of the act. The phrase does not involve any consideration of the accused’s moral perception nor his knowledge of the moral quality of the act. Thus a person who is so deluded that he cuts a woman’s throat believing that he is cutting a loaf of bread would not know the nature and quality of his act.

66
Q

Define automatism. (Must Know)

A

A state of total blackout during which a person is not conscious of their actions and not in control of them.

67
Q

Definition of automatism in R v Cottle (Must Know)

A

Doing something without knowledge of it and without memory afterwards of having done it - a temporary eclipse of consciousness that nevertheless leaves the person so affected able to exercise bodily movements.

68
Q

Describe the two types of automatism. (Must Know)

A

Sane automatism - The result of somnambulism (sleepwalking), a blow to the head or the effects of drugs.

Insane automatism - The result of a mental disease.

69
Q

In what situations might intoxication be a defence? (Must Know)(DoMIA)

A
  • Where the intoxication causes a disease of the mind so as to bring s23 into effect
  • If intent is required as an essential element and the drunkenness is such that the defence can plead a lack of intent
  • Where the intoxication causes a state of automatism (complete acquittal)
70
Q

What does R v Kamipeli say about what is required for intoxication to succeed as a defence? (Not verbatim)(ERD)

A

You just need to establish reasonable doubt about the defendant’s required state of mind at the time of the offence.

71
Q

What is an offence called that does not require an intent and how can a defendant escape liability for such an offence?(SLO)(AoF)

A

It’s called a strict liability offence and the only way to escape liability is to prove total absence of fault.

72
Q

s25, CA 1961 (Must Know)(IoL

A

25 Ignorance of law

The fact that an offender is ignorant of the law is not an excuse for any offence committed by him.

73
Q

What is compulsion or duress?

A

The act of compelling a person to do something against their will.

74
Q

Compulsion, s24(1), CA 1961

A

24 Compulsion

(1) Subject to the provisions of this section, a person who commits an offence under compulsion by threats of immediate death or grievous bodily harm from a person who is present when the offence is committed is protected from criminal responsibility if he or she believes that the threats will be carried out and if he or she is not a party to any association or conspiracy whereby he or she is subject to compulsion

75
Q

Explain the element of immediacy in s24. (Not verbatim)

A

The threats must be operating on the person’s mind at the time of the act and be so grave that they might well have caused a reasonable person placed in the same situation to act in the same way.

76
Q

Outline R v Joyce re compulsion and the findings. (Must Know)

A

Three offenders, Pihema, Munro and Joyce, went to Auckland service station. Pihema, with firearm, entered alone and demanded money. There was a struggle and attendant shot. All three charged with agg robbery. One defence from Joyce was compulsion. Pihema pointed rifle at him and threatened to shoot if he didn’t cooperate. Pihema inside service station while Joyce outside. Joyce therefore not threatened with immedate death or GBH by person present.

R v Joyce
The Court of Appeal decided that the compulsion must be made by a person who is present when the offence is committed.

77
Q

Define the term ‘mistake’ as a defence.

A

Ignorance as to matters of fact

78
Q

Explain the New Zealand courts’ attitude towards the defence of entrapment. (Must Know)

A

The courts have rejected entrapment as a defence per se, preferring instead to rely on the discretion of the trial judge to exclude evidence that would operate unfairly against the defendant.

79
Q

Police v Lavelle (UC)

A

Police v Lavelle
It is permissible for undercover officers to merely provide the opportunity for someone who is ready and willing to offend, as long as the officers did not initiate the person’s interest or willingness to so offend.

80
Q

s48, CA 1961

A

48 Self-defence and defence of another

Every one is justified 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.

81
Q

Explain the s48 tests. (Must Know)

A

Subjective - the defendant’s decision that force is required based on his subjective view of the circumstances
Objective - the reasonableness of the degree and manner of force used

82
Q

What three criteria are used to test the degree of force used? (CirBelReas)

A
  • What are the circumstances that the defendant genuinely believes exist (whether or not mistaken)?
  • Do you accept that the defendant genuinely believed those facts?
  • Is the force used reasonable in the circumstances believed to exist?
83
Q

s62, CA 1961

A

62 Excess of force

Every one authorised by law to use force is criminally responsible for any excess, according to the nature and quality of the act that constitutes the excess.

84
Q

Who decides whether there is evidence of self-defence?

A

Judge

85
Q

Define the term ‘alibi’. (Must Know)

A

The plea in a criminal charge of having been elsewhere at the material time: the fact of being elsewhere.

86
Q

Whenever a defendant puts forward an alibi under s22(1) the OC case must ensure what are prepared on the witness?

A

QHA and active charges report

87
Q

When a defendant intends to use an alibi witness how many days do they have to written notice to the prosecutor after notice is given under S20? (Must Know).

A

Must be given within 10 working days after the defendant is given notice under section 20

88
Q

If the defendant intends to call an expert witness, what must they disclose to the prosecutor and in what time frame? (Must Know).

A

Any brief of evidence to be given or any report provided by that witness OR

if that brief or any such report not available, a summary of evidence to be given and conclusion of any report provided.

Must be disclosed at least 10 working days before date of trial or any further time allowed by court.

89
Q

A hearsay statement is only admissible in a proceeding if certain conditions are met. What are those conditions and where are they found? (Must Know)

A

s18(1), Evidence Act 2006
(1) A hearsay statement is admissible in any proceeding if
(a) the circumstances relating to the statement provide reasonable assurance 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 undue expense or delay would be caused if the maker of the statement were required to be a witness.

90
Q

What are circumstances that need to be considered under s16(1), Evidence Act 2006? (NCCVA)

A
  • nature of the statement
  • contents of the statement
  • circumstances relating to the making of the statement
  • circumstances relating to the veracity of the person making the statement
  • circumstances relating to the accuracy of the observation of the person
91
Q

Crimes Act definition of unlawful act. (Must Know)

A

A breach of any Act, regulation, rule or bylaw (s2, CA 1961)

92
Q

Explain s160(2)(b) (Must Know)

A

This covers cases where nothing is done when there is a legal duty to act, or sometimes positive conduct followed by failure to discharge a legal duty. If death results it’s manslaughter (if sufficient fault) or murder (if requisite mens rea).

93
Q

Give three examples of culpable homicide caused by actions prompted by threats, fear of violence or deception.

A
  • jumps or falls out of a window and dies because they think they are going to be assaulted
  • jumps into a river to escape an attack and drowns
  • who has been assaulted and believes their life is in danger, jumps from a train and is killed
94
Q

What were the findings in R v Ranger (not verbatim). (Must Know).

A

If this defendant did really think that the lives of herself and her son were in peril because of the deceased, enraged after the struggle, might attempt to shoot them with a rifle near at hand, then it would be going too far, we think, to say that the jury could not entertain a reasonable doubt as to whether a pre-emptive strike with a knife would be reasonable force in all the circumstances.

95
Q

What are the intents in s168?

A

If he or she 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

96
Q

What are the acts in s168(1)(b) and (c)?

A

(b) If he or she administers any stupefying or overpowering thing
(c) If he or she by any means wilfully stops the breath of any person

97
Q

Define Unlawful Act (Must Know)

A

Means a breach of any Act, regulation, rule, or bylaw

98
Q

List 6 examples of culpable homicide where the offender has caused death (Must Know)

A

•committing arson
•giving a child an excessive amount of alcohol to drink
•placing hot cinders and straw on a drunk person to frighten them
•supplying heroin to a person who subsequently dies from an overdose
•throwing a large piece of concrete from a motorway overbridge into the path of an approaching car
•conducting an illegal abortion where the mother dies.

99
Q

Duties imposed by statute are mainly common law duties that have been embodied in statute. The Crimes Act 1961 defines those duties, what are they? (6) (Must Know)

A

•provide the necessaries and protect from injury (s151)
•provide necessaries and protect from injury to your charges when you area parent or guardian (s152)
•provide necessaries as an employer (s153)
•use reasonable knowledge and skill when performing dangerous acts,such as surgery (s155)
•take precautions when in charge of dangerous things, such as machinery(s156)
•avoid omissions that will endanger life (s157).

100
Q

Define Wilfully frightening (Must Know)

A

“Wilfully frightening” is regarded as “intending to frighten, or at least be reckless as to this”.

Simester and Brookbanks3 suggest “wilfully” would require that the offender intended to frighten, or is at least subjectively reckless as to the risk of that.

101
Q

Is anyone criminally responsible for killing by influence on the mind? (Must Know) s163

A

No one is criminally responsible for the killing of another by any influence on the mind alone, except by wilfully frightening a child under the age of 16 years or a sick person, nor for the killing of another by any disorder or disease arising from such influence, except by wilfully frightening any such child as aforesaid or a sick person.

102
Q

Can anyone consent to death? (Must Know)

A

No one has the right to consent to being killed (s63). This means that, if someone is killed, the fact they gave their consent will not affect the criminal responsibility of anyone else involved with the killing.

103
Q

S168 CA (Must Know)

A

Further definition of murder
(1)Culpable homicide is also murder in each of the following cases, whether the offender means or does not mean death to ensue, or knows 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.

104
Q

Proximity is a question of law (Must Know)

A

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.

105
Q

For a conviction of manslaughter under S150A(1) the prosecution must prove what? (Must Know)

A

the prosecution must prove a “very high degree” of negligence or “gross negligence”.

106
Q

S151 (1) (Must Know) (Nec)

A

Duty to provide the necessaries and protect from injury
(1)Every one who has actual care or charge of a person who is a vulnerable adult and who is unable to provide himself or herself with necessaries is under a legal duty—
(a)to provide that person with necessaries; and
(b)to take reasonable steps to protect that person from injury

107
Q

S152 (1) (Must Know)(DoP)

A

Duty of parent or guardian to provide necessaries and protect from injury
(1)Every one who is a parent, or is a person in place of a parent, who has actual care orcharge of a child under the age of 18 years is under a legal duty—
(a)to provide that child with necessaries; and
(b)to take reasonable steps to protect that child from injury

108
Q

Define suicide pact S180(3) (Must Know)

A

Suicide pact means a common agreement between 2 or more persons having for its object the death of all of them, whether or not each is to take his own life; but nothing done by a person who enters into a suicide pact shall be treated as done by him in pursuance of the pact unless it is done while he has the settled intention of dying in pursuance of the pact.

109
Q

What intent is required around disposing of the body in relation to S181? (Must Know)

A

The requirement that the act of disposal must be done with the intent of concealing the fact of birth may be satisfied even though the birth was known to some people but not others. Thus it will be enough that the intent was to conceal the birth from a particular individual.

110
Q

What is the general rule for child offenders? (Must Know)

A

As a general rule, all child offenders will be referred to the Care and Protection Coordinator until they reach the age of 14 years.

111
Q

What do you do when a child under the age of 10 murders someone? (Must Know)

A

When offences are being committed by children aged under 10 years and some action is desirable or necessary, consider having the child and family dealt with as a Care and Protection matter.
Consider the option of arrest if the circumstance permit but no charges laid.
A child aged under 10 years has an absolute defence to any charge brought against them.

112
Q

Disease of the mind question of law? (Must Know)

A

Whether the particular condition is a disease of the mind is a question of law for the Judge.

113
Q

Definition of Automatism (Must Know)

A

Automatism can best be described as a state of total blackout, during which a person is not conscious of their actions and not in control of them.

114
Q

How is the court likely to view a defence based on automatism arising from voluntary consumption of alcohol or drugs? (Must Know)

A

The courts indicate that cogent (convincing) evidence is necessary to support it, and only in very rare cases will it be enough for a person to say that they did not know or cannot remember what happened, or that they had a blackout. Such statements have been called “one of the first refuges of a guilty conscience and a popular excuse”.

115
Q

Is ignorance of the law a defence? (Must Know)

A

Defendants sometimes defend their actions by saying that they did not know that what they were doing was wrong. However, s25 of the Crimes Act 1961 states that the fact that an offender is ignorant of the law is not an excuse for any offence committed by them.
This ruling applies whether the offender is from this country or from overseas.
Section 25 of the Crimes Act 1961 deals with ignorance of the law.

116
Q

The O/C case should not interview an alibi witness unless the prosecutor requests them to do so. If an interview is requested, what are the 3 steps? (Must Know)

A
  1. Advise the defence counsel of the proposed interview and give them a reasonable opportunity to be present
  2. If the defendant is not represented, endeavour to ensure the witness is interviewed in the presence of some independent person not being a member of the Police.
  3. Make a copy of a witness’s signed statement taken at any such interview available to defence counsel through the prosecutor. Any information that reflects on the credibility of the alibi witness can be withheld under s16(1)(o).
117
Q

Section 160 (1) & (2) Crimes Act (Must Know)

A

160 Culpable homicide
(1) Homicide may be either culpable or not culpable.
(2) Homicide is culpable when it consists in the killing of any person—
(a) By an unlawful act; or
(b) By an omission without lawful excuse to perform or observe any legal duty; or
(c) By both combined; or
(d) By causing that person by threats or fear of violence, or by deception, to do an
act which causes his death; or
(e) By wilfully frightening a child under the age of 16 years or a sick person.

118
Q

What is the morally wrong test used to determine? (Must Know)

A

The test is that the defendant knew that their acts were morally wrong – they
do not need to know that they were legally wrong.

119
Q

Can automatism induced by drink or drug be a defence? (Must Know)

A

The position in New Zealand as to whether someone has become an automaton by ingesting so many drugs or so much alcohol that they are not responsible for their actions, is a defence that is available if the evidence of the defence can clearly raise the issue.

120
Q

Application in court of self induced automatism from drink or drug? (Must Know)

A

In New Zealand, the courts are likely to steer a middle course, allowing a defence of automatism arising out of taking alcohol and drugs, to offences of basic intent only. They are likely to disallow the defence where the state of mind is obviously self-induced, the person is blameworthy, and the consequences could have been expected.

121
Q

If a person has some “dutch courage” can automatism be a defence? (Must Know)

A

If a person formed an intent to commit a crime and then took drink or drugs as part of the method
of committing the crime (gaining Dutch courage) will disqualify a defence of drunkenness or automatism.

122
Q

In regard to ignorance of the law who does the ruling apply to? (Must Know)

A

This ruling applies whether the offender is from this country or from overseas.

123
Q

R v Cox (Must Know)

A

Consent must be “full, voluntary, free and informed … freely and voluntarily given by a person in a position to form a rational judgment.”

124
Q

Can an organisation (as opposed to a human being) be convicted of murder or manslaughter? Explain your answer.

A

No. Because the killing must be done by a human being, an organisation cannot be convicted as the principal offender. Moreover, although an organisation can be convicted as a party to manslaughter, with murder an organisation cannot be convicted as either the principal offender or a party to the offence because it is not possible for an organisation to serve the offence’s mandatory life sentence.

125
Q

Section 160 of the Crimes Act 1961 defines what constitutes culpable homicide. What are the five ways set out in subsection (2) of this section?

A

Under s160(2) of the Crimes Act 1961, culpable homicide consists of killing a person by:
− an unlawful act
− an omission without lawful excuse to perform or observe any legal duty
− an unlawful act and an omission to perform a legal duty
− using threats, fear of violence or deception to make the victim do an act that leads to their death
− wilfully frightening a child under 16 years of age or a sick person

126
Q

What is the legal view of consent to death?

A

The law does not recognise the right of a person to consent to their being killed (s63 of the Crimes Act 1961). As a consequence, their consent does not affect the criminal responsibility of anyone else involved in the killing.

127
Q

Is a body required to prove the death of a person? Explain your answer with reference to case law R v Horry.

A

No a body is not required to prove death of a person has occurred. Death should be provable by such circumstances as render it morally certain and leave no ground for reasonable doubt – that the circumstantial evidence should be so cogent and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for. R v Horry

128
Q

Would you be charged with any offence if you fatally injured another player during a rugby match? If so, what might the charges be?

A

Normally you would not be charged with the killing of another player if they died from injuries, you caused while playing football. However, you would be guilty of manslaughter if your actions were considered likely to cause serious injury, as you should have been aware of this at the time and refrained from the action

129
Q

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

A

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.

130
Q

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

A

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.

131
Q

Define voluntary and involuntary manslaughter.

A

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

132
Q

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?

A

When you are considering what charge to file after someone has been killed in a sudden fight, you need to consider whether there was:
− self-defence
− the requisite mens rea for a murder/manslaughter charge

133
Q

Sections 151 and 152 of the Crimes Act 1961 list the legal duties regarding providing those things and conditions necessary to sustain life and protect from injury. Outline the provisions.

A

Legal duties regarding provision of the necessaries and to take reasonable steps to protect that person from injury apply to those having actual care or charge of people who are vulnerable adults or, in the case of a parent or a person acting in the place of a parent having actual care or charge of a child under 18 years.

134
Q

What types of things fall into the category of dangerous things discussed in s156 of the Crimes Act 1961?

A

Section 156 of the Crimes Act 1961 sets out the statutory duty of people in charge of dangerous things to take reasonable precautions to ensure people’s safety. Such things include motor vehicles, trains, animals, ships, weapons, machinery or explosives, and may include such things as the machinery inside a mussel factory, faulty scaffolding that collapses because of faulty erection and inspection, unfenced holes or other industrial-type incidents, depending on the circumstances

135
Q

In one incident a man stabs a woman repeatedly; the same thing happens in another incident involving a different man and woman. As a result, both women need to undergo emergency surgery during which both die of heart failure. The first woman suffers heart failure in an unpredicted reaction to the anaesthetic, whereas the second woman, although she suffers the same reaction and with the same result, wears a medic-alert badge carrying information about her known heart condition and reaction to anaesthetic. Is there any difference in these cases? Is anybody held legally responsible for either of their deaths? If so, who, and what would the charge be?

A

If a woman is stabbed repeatedly and, during emergency surgery in relation to those wounds, dies of a heart attack where all reasonable precautions have been taken, the person who stabbed her initially and not the medical staff are responsible for her death. The degree of liability depends on the element of mens rea and whether the attack was provoked. However, if the woman was wearing a medic-alert bracelet that described her heart condition and her reaction to anaesthetic, and the anaesthetist failed to notice it, the person who did the stabbing would not be culpable and the anaesthetist’s actions would need to be scrutinised under the provisions of s155 of the Crimes Act 1961 (duty of persons doing dangerous acts) to evaluate their responsibility. Simply, the death needs to be a direct result of the initial attack and not related to another condition

136
Q

Is a person who helps another person commit suicide criminally liable for their actions? Explain your answer.

A

Because the law does not recognise a person’s right to consent to death, people who help another to commit suicide or who are part of a suicide pact but survive are responsible for the other person’s death. In such cases the surviving person is charged with manslaughter.
Yes, they are criminally liable.

137
Q

If a person is deemed to have been justified and not criminally liable for an offence, may they then be proceeded against in a civil action?

A

In relation to any person, “justified” means that the person is not guilty of an offence and is not liable civilly.

138
Q

When interviewing 10 – 13-year-old children for the offence of murder, what must be shown in addition to the mens rea and actus reus requirements for the child to be held criminally liable for the offence?

A

For children aged between 10 and 13 years inclusive, it must be shown that the child knew their act was wrong or contrary to law. If this knowledge cannot be shown, the child cannot be criminally liable for the offence

139
Q

What was held in the matter of R v Clancy in relation to the best evidence concerning proof of age?

A

“The best evidence as to the date and place of a child’s birth will normally be provided by a person attending at the birth or the child’s mother … Production of the birth certificate, if available, may have added to the evidence but was not essential.”

140
Q

From whom should you seek advice in relation to questioning of children and young persons?

A

Seek advice from your District Youth Prosecutor to ensure compliance with the CYPF Act, particularly in relation to questioning children and young persons.

141
Q

A 13-year-old charged with murder, having been the subject of a committal hearing in the Youth Court, will be remanded to appear next in which court to have the matter heard?

A

10 to 13-year-olds charged with murder or manslaughter are usually dealt with under the youth justice provisions of the CYPF Act, although charges of murder and manslaughter will be heard in the High Court following the committal process in the Youth Court.

142
Q

What does “protected from criminal responsibility” mean?

A

Protected from criminal responsibility means not guilty of an offence but civil liability may still arise

143
Q

What type of defence does a child under 10 years have?

A

A child under 10 years has an absolute defence.

144
Q

What is the standard of proof required to prove the defence of insanity to the satisfaction of the jury?

A

On the balance of probabilities.

145
Q

Is the term “disease of the mind” a question of Fact for the jury to decide or a question of Law for the judge to decide?

A

A question of law.

146
Q

What are the two types of automatism?

A

The two types of automatism are sane and insane

147
Q

How is automatism best described?

A

Automatism is best described as a state of total blackout, during which a person is not conscious of their actions and not in control of them.

148
Q

What is the likely result of a trial where the defendant is found to have been in a state of automatism from intoxication?

A

The result of a trial where the defendant is found to have been in a state of automatism from intoxication is complete acquittal

149
Q

What is compulsion?

A

Compulsion is the act of compelling a person to do something against their will.

150
Q

In relation to compulsion, what does “immediate” mean?

A

In relation to compulsion, “immediate” means at the scene from a person present at the time.

151
Q

What in effect is a defence of mistake? (DoI)

A

A defence of mistake is in effect a denial of intent.

152
Q

How does the defence of entrapment apply in New Zealand? Outline at least one case to explain your answer.

A

With the defence of entrapment in New Zealand, the courts rely on judicial discretion to exclude unfairly obtained evidence. Police v Lavalle (1979) provides police good guidance on how the courts apply judicial discretion in the context of “entrapment”

153
Q

What is the test of self-defence?

A

The test of self-defence is subjective

154
Q

Who decides whether there is evidence of self-defence?

A

Evidence of self-defence is decided by the judge.

155
Q

What does “alibi” mean?

A

Alibi means being elsewhere at the material time

156
Q

What people are considered unable to give consent?

A

People are considered to be unable to give their consent if they are:
− a child
− unable to rationally understand the implications of their defence
− subject to force, threats of force or fraud.

157
Q

What actions do not allow for a defence of consent?

A

You cannot use the defence of consent in cases involving:
− aiding suicide
− criminal actions
− injury likely to cause death
− bodily harm likely to cause a breach of the peace
− indecency offences
− the placing of someone in a situation where they are at risk of death or bodily harm.

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