Homicide 013 COPY COPY

Question 1

List the three main types of culpable homicide.

Answer 1

Murder, manslaughter, infanticide

Question 2

Can an organisation be convicted of murder or manslaughter?

Answer 2

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.

Question 3

Unlawful act R v Myatt

Answer 3

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.

Question 4

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

Answer 4

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.

Question 5

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

Answer 5

If the contestant causes the death of another by an act that is likely to cause serious injury, will be guilty of manslaughter

Question 6

What must be done to prove of death?

Answer 6

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

Question 7

R v Horry (where a body is not located)

Answer 7

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.

Question 8

What are the two types of intention in an offence?

Answer 8

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

Question 9

If you are charging an offender with murder under s167, what must you show in relation to the offender’s intent to cause death?
3x death.

Answer 9

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

Question 10

R v Piri Recklessness

Cameron –

Answer 10

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.

( Recklessness is established if
The defendant recognised that there was a real possibility that
His or her action would bring about the proscribed result
That the proscribed circumstances existed
Having regarded that risk those actions were unreasonable )

Question 11

Definition Party to an offence- s66(2), CA 1961 (Nice to know)

Answer 11

Short-Where 2 or more person form a common intention to commit any UL purpose and to assist each other there in, each of them is guilty to every offence committed by any one of them in the commission of the offence.

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.

Question 12

Party to an offence s66(1), CA 1961 (Nice to know)

Answer 12

(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.

Question 13

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)

Answer 13

Short - the secondary party must know the principal party might do an act that would cause death.

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.

Question 14

attempts to commit an offence - intent must be established R v Murphy

Answer 14

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 15

Explain the term ‘sufficiently proximate’.

Answer 15

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

Question 16

R v Harpur attempts

Answer 16

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.

Question 17

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

Answer 17

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

Question 18

AAF to murder s176, CA 1961 - 7y (Nice to know)

Answer 18

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

Question 19

176 Accessory after the fact to murder

Answer 19

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.

Question 20

AATF - R v Mane

Answer 20

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.

Question 21

What is the punishment for manslaughter?

Answer 21

Everyone who commits manslaughter is liable to imprisonment for life.

Question 22

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

Answer 22

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.

Question 23

According to s163, no one 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?

Answer 23

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

Question 24

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

Answer 24

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.

Question 25

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

Answer 25

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.

Question 26

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

Answer 26

• 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,

Question 27

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

Answer 27

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

Question 28

Outline R v Bristowe. weed killer

Answer 28

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.

Question 29

Aiding and abetting suicide s179(1), CA 1961-14y

Answer 29

(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

Question 30

Define the term ‘protected from criminal responsibility’.

Answer 30

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

Question 31

R v Forrest and Forrest

Answer 31

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

Question 32

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.

page 67-68

Answer 32

(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.

Question 33

R v Cottle re the defence of insanity

Answer 33

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.

Question 34

R v Clark re insanity

Answer 34

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.

Question 35

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

Answer 35

Judge.

Question 36

R v Codere _ insanity - cutting throat

Answer 36

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.

Question 37

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

Answer 37

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

Question 38

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

Answer 38

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

Question 39

What is compulsion or duress?

Answer 39

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

Question 40

Compulsion, s24(1), CA 1961

Answer 40

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

Question 41

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

Answer 41

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.

Question 42

Define the term ‘mistake’ as a defence.

what in effect is a defence of mistake

Answer 42

Ignorance as to matters of fact

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

Question 43

Police v Lavelle

Answer 43

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.

Question 44

s48, CA 1961

Answer 44

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.

Question 45

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

Answer 45

• 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?

Question 46

62 Excess of force CA 1961

Answer 46

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.

Question 47

Who decides whether there is evidence of self-defence?

Answer 47

Judge

Question 48

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

Answer 48

QHA and active charges report

Question 49

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

Answer 49

• 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

Question 50

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

Answer 50

• 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

Question 51

What are the intents in s168?

FTCOAO
FTF or ATDOTO UTCOAC there of or
FTPORLA

Answer 51

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

Question 52

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

Answer 52

(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