Homicide Flashcards
Before a homicide can become the subject of a criminal charge you must prove what?
the killing was blameworthy or culpable.
What are the three types of homicide?
Murder
homicide
infanticide
two criticial factors for a charge of murder… did the person intend to?
kill the person
cause bodily injury the offender knew would likely cause death
if you cant prove that the offender meant to kill the person or knew their actions would likely cause death, what is the best charge?
manslaughter
who has legal burden of proof re homicide charges?
prosecution
what is the most appropriate charge for the survivor of a suicide pact?
manslaughter?
Two examples of manslaughter
someone who failed to get an injured or ill person medical assistance.
a drunk driver
what does culpable mean?
deserving blame.
define homicide
S158
Homicide is the killing of a human being by another, directly or indirectly, by any means whatsoever.
when is a child considered a human being?
s159 Killing of a child
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.
The killing of such child is homicide if it dies in consequence of injuries received
before, during, or after birth.
160 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.
define unlawful act
a breach of any Act, regulation, rule, or bylaw.
What was confirmed in R v LEE?
the act must be objectively dangerous and any reasonable person would know that risk of harm existed.
to be unlawful you must prove?
You must be able to prove all the elements of an offence.
prove mens rea
the acts were done without lawful justification.
it was not done in self defence
examples of culpable homicide
committing arson
giving a child an excessive amount of alcohol
placing hot cinders and straw on a drunk person to freighten them.
supplying heroin to someone and causing them to overdoes.
thorwing large objects from a bridge into on coming traffic
conducting illegial abortions where the mother has died.
ommissions to person legal duties
failing to act when there is a legal duty to do so.
such as:
provide the necessaries and protect from injury
- provide necessaries and protect from injury to your charges when you are a parent or guardian
- provide necessaries as an employer
- use reasonable knowledge and skill when performing dangerous acts, such as surgery
- take precautions when in charge of dangerous things, such as machinery
- avoid omissions that will endanger life
ommission of legal duties amount to homicide when…
if the defendant had acted death would not have occured.
was a substantive and operative part of death.
What does threats fear of violence and deception mean
due to threats, fear of violence, deception the victim the victim acted in a way that caused death.
you must prove their fears were well founded.
You do not have to prove that their actions were the only means of escape.
what does it mean to freighten a child or sick person
the freight needs to be the result of anything that could cause fear of violence
what does willfully freightening mean
intending to freighten or subjectively reckless to the act.
S163 killing by influence on the mind
someone who mentally tortured another person who is already mentally sick and causes them to have a breakdown and commit suicide.
can someone consent to death?
No.
even if someone is killed by consent the person who killed them is criminally liable for their death.
Are you liable for culpable homicide during sports/contests?
If a participant dies as a result of injury juring a sport/ contest, the person who caused those injuries is not liable to homicide unless their actions were likely to cause serious injury.
Proof of death,what must you prove?
death occured.
deceased is identified as the person who was killed.
The killing was culpable.
what kind of evidence do you need to prove death?
direct
or
circumstantial evidence.
justified homicide or non culpable homicide
when the perpetrator is exempt from criminal and civil liability in cases such as:
(s48) self defence
(s41) preventing suicide
or
preventing commission of an offence which would likely cause immediate and serious injury to another person or property.
force must be reasonable in the circumstances
Can an organisation (as opposed to a human being) be convicted of murder or manslaughter?
as per murray wright ltd (1970), because killing must be done by a human being, an organisation (such as a hospital or food company) can not be convicted as a principal offender.
an organisation cant be convicted of murder as it carries a life sentence.
it can however be convicted as parties to manslaughter.
S167- murder defined
culpible homicide is murder in the following cases:
A) offender means to cause death of person killed
B) offender means to cause bodily injury that the offender knew would likely cause death / reckless to the act.
C) Offender means to cause death/reckless to death to one person but kills another by accident
D) Kills someone in any matter that he knows is likely to cause death, regardless of whether he meant anyone be hurt
168 Murder defined further
also culpable homicide regardless of whether they meant to cause death or not…
A) means to GBI for the purpose of facilitating the commission of any offence or facilitating the flight of a person or avoid detection/arrest
B) administers any stupifying / overpowering thing for any purpose which causes death.
C) wilfully stops the breath of another person for any purpose and death ensues.
whatmust you prove re intent to cause death
you must prove:
intended to cause death
knew that death would likely ensue
was reckless that death would ensue
what does reckless mean
consciously and deliberately taking an unjustifiable risk
state of mind 167b
intended to cause bodily injury
knew the injury would likely cause death
was reckless as to whether the injury could cause death
joint responsibility
it is not nessessary show that the secondary party knew that death was a probable consequece of their carrying out the primary purpose, rather you must show that the secondary party knew it was a probable consequence that the principal party might do an act which would, if death ensued would = conduct that fell with the terms of section 168
S172 punishment of murder
(1) liable to life in prison
(2) subsection 1 subject ot 102 of sentencing act 2002
102 sentencing act 2002
max imprisonment
(1) an offender convicted of murder must be sentenced to life imprisonment, unless under the circumstances would be manifestly unjust
(2) if life imprisonment is not imposed then there must be written reason as to why not
S72 CA 1961- Attempts
(1) does/ ommits act
for purpose of accomplishing their object
whether or not
it was possible to commit the offence
(2) it is up to the law
as to whether
it is preparation or attempts.
(3) Acts done with intent to commit offence
may = attempts
if immediately/ proximately connected
to intended offence
what is considered sufficiently proximate?
the defendant must have started to commit the full offence and gone beyond preparation
how do you determine proximity?
it will come down to the circumstnaces as they exist for each individual case.
You will need to decide if their actions are only prepatory or are they sufficiently proximate to the full offence.
the test of proximity
has the offender merely gotten himself into position from which he could embark on an attempt
or
has the offender actually commenced execution? (taken steps)
if you answer yes to either of these questions than this may be considered an attempt
who determines proximity?
proximity is a question of law which is ultimately decided by the judge.
173- punishment attempted murder
14 years.
174 counselling or attempting to procure murder
liable to imprisonment for a term not exceeding 10 years
for anyone who counsels, incites, or attempts to procure
the murder of another person in NZ.
(when murder is not committed)
how would you charge counselling or procuring murder
punishable under section 66 under parties to.
175 Conspiracy to murder
liable to imprisonment for a term not exceeding 10 years.
who conspires
or agrees
with any person
to murder another person.
does s175 conspiracy to murder apply to someone who has not commited an actual murder
yes it may still apply.
176 accessory to murder after the fact
liable to imprisoment for a term not exceeding 7 years
who is an accessory after the fact
to murder
two types of manslaughter according to common law
voluntary manslaughter
involuntary manslaughter.
voluntary manslaughter
the intentional killing of another person without malice
such as a suicide pact.
involuntary manslaughter
the unintential killing of another person due to an unlawful act or gross neglience.
considerations if death occurs in a sudden fight?
was it self defence (result = aquiettal)
Was requesite mens rea present? (consider manslaughter charge)
the four point test to proving Section 160- death by unlawful act
the defendant intentially did the act
it was unlawful
it was dangerous
it caused death
Manslaughter by negligence (operating what?)
machines.
mines.
ships.
trains.
Vehicles
weapon systems.
or
administering medical/surgical treatment.
when is it manslaughter due to negligence
Consent to …
the deceased consent is not a defence if you operated something in a way that was dangerous/risky/ negligently, knowing the deceased was in that dangerous position.
if during a game or contest the defendants actions were likely to cause serious injury.
even if the deceased contributed to their own death due to their own risky behaviours, contributory neglience is not a defence.
whatdo you charge neglegient drivers with?
alternate charges exist in the land and transport act 1998.
it will be based on your assessment of surrounding factors as to whether a crimes act charge or land and transport act charge is the most appropriate.
to what degree does negligence need to be proven for manslaughter charges?
a very high degree
or
gross negligence
150A standard of care applicable to persons under legal duties or performing unlawful acts
(b) a person is criminally responsible
for omitting to discharge
or perform a legal duty
or performing an unlawful act
only if the acts were a major departure
from the standard of care expected
of a reasonable person
to whom those legal duties apply
or who performed the unlawful act.
major departure test re negligence
is an objective test.
the offenders state of mind is not a prerequisite to conviction for manslaughter- gross negligence
177 - punishment for manslaughter
life imprisonment.
though the judge may consider all circumstances and the penalty may range from a fine upwards.
associated murder charges include
attempted murder
counselling or attempting to procure murder
conspiracy to murder
accessory to murder after the fact.
s178 nfanticide
where a woman kills any of her own children
under the age of 10
in a manner that amounts to culpable homicide
where at the time of the offence
the balance of her mind was disturbed in any way
due to birth or lactation