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
What should you charge a mother who has killed her child?
If she is charged with murder/manslaughter, but the jury beleive that the mothers state of mind was disturbed due to childbirth, the jury may trurn a special verdict of aquital due to insanity.
Prosecution may file charges for murder/manslaughter AND infanticide and the jury may then decide on the mothers state of mind and choose the most appropriate charge.
151 duty to provide the nessessitities and protect from injury
everyone
who has the actual care or charge
of another person
who is a vulnerable adult
and is unable to provide for themselves
is under the legal duty to
provide that person with all nessessities
take responsible steps to protect them from injury
152- duty of a parent or guardian to provide nessissities and protect from injury
everyone who is a parent
or a person in place of a parent
who has the actual care or charge
of a person under 18 yrs
has the legal duty to
provide that person with all nessessities
take responsible steps to protect them from injury
153- duty to employers to provide nessessities
everyone who
as an employer
has contracted
to provide food, clothing or lodging
to any servant
or apprentice
under the age of 16
is under the legal duty to provide the same is criminally responsible
for ommitting without lawful excuse to perform such a duty
should their life be endangered
or their health permantently injured.
what is a vulnerable adult
a person who is unable to withdraw themselves from the charge of another person due to
age
detention
mental impairment
sickness
or any other cause.
what does nessessaries for life mean?
includes services to sustain life
clothing
food
housing
medical care
warmth
what does duty to protect mean
to take reasonable steps to protect a vulnerable adult or child from bodily injury from persons, human activites and non human sources.
154- abandoning a child
liable for a term of imprisonment not exceeding 7 years
who unlawfully abandons
or exposes
any child under the age of 6
155- duty of person doing dangerous acts
everyone who undertakes
(except when neccessary)
to administer surgical or medical treatment
or do any other lawful act
which may be dangeous to life
is under the legal duty
to have reasonable knowledge and skill and care
in doing such act
156- duty of a person in charge of dangerous things
everyone who is in charge
or under his control
anything whatsoever
whether animiate or inanimate
or who erects
makes
operates
or maintains anything whatsoever
which under absence of precaution or care
may endanger human life
is under legal duty
to take reasonable precautions
and take reasonable care
to avoid such danger
what does anything what so ever include in s156?
animals
explosives
machinary
motor vehicles
ships
trains
weapons
157- duty to avoid ommission dangerous to life
Youar responsible to act as per your duty, and you are criminally liable if you do not act and have no lawful excuse for doing so.
can you be culpable of homicide if you cause someone extreme anxiety/ distress?
if someone is driven to an extreme state of anxiety but had no previous mental or physical ailments and they consequently commit suicide, the person who caused that extreme anxiety is not culpable for their death.
164- acceleration of death
liable for culpable homicide if they accelerate someones death even if the original disease/ disorders was not their fault.
165 preventable death.
Who is liable when a person dies but the death was preventable .
liability on a person who causes injury which results as an operative reason for death,
even though the death could have been prevented (by the victim or another person)
this includes if the victim refused treatment for what ever reason.
166- causing injury treatment which causes death
If person A is injured by person B, and received treatment that ultimately kills them by person C; provided the treatment was administered in good faith, person B is still liable for person A’s death
are you liable for culpable homicide if you withdraw life support?
withdrawing life support is not a treatment.
withdrawing life support does not cause death, but rather removes the possibility of extending life through artificial means.
what does novis actus interviens mean?
a new interviening act that breaks the chain of causation
179 -aiding and abetting suicide
liable for a term of imprisonment not exceeding 14 years
(a)
councels
incites
procures
any person to commit suicide
if that person commits or attempts to commit suicide
(b)
aids/abets any person in the commission of suicide.
180 - suicide pact
anyone in a suicide pact
kills another person
is guilty of manslaughter not murder
what is a suicide pact?
a common agreement between two or more people in which the aim for all in the pact is death.
181- concealing a childs body
liable for a term not exceeding 2 years
who disposes of a childs dead body
with the intent to conceal the fact of its life, regardless of whether the child died before, during or after birth.
what do they mean by child in S181 when referring to age?
age= close to birth
what if someone knew about the child/birth re S181?
the requirement that the act be done with the intent to conceal the body from someone.
the birth does not have to be a secret to everyone.
does the law recognise someones consent to death?
no- that is why it is illegal to aid someone in death or have suicide pacts.
general admissibility of heresay evidence
heresay statements are admissible if
circumstances relating to statement provide reasonable assureance that the statement is reliable and
the maker of the statement is unavailable as a witness
the judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness
can a statement from a person who has died be admissible evidence?
if you can prove the reliability of the person who made the statement and the statement its self.
proving reliabiity- section 16 evidence act
accuracy of witness observations
circumstances relating to making the statement
content of statement
nature of the statement
verasity of witness
where can you find matters of justification in the crimes act?
section 3
what does justified mean?
not guilty of an offence and not liable civilly.
what does protected from criminal responsibilty mean?
the person is not guilty of an offence though may face civil liability.
section 21 - children under 10
no person can be charged with a criminal offence under the age of 10.
section 22- children aged 10-14
Prove what
can not be charged for an offence unless it can be proven that they knew that it was wrong or contrary to the law
do you need to establish guilt for a child under 10 years old?
yes. even though children under 10 have an absolute defence you must still prove that they were guilty of that offence
burden of proof on children between 10-13.
it must be shown that the child knew that it was wrong or contrary to the law.
this test of knowledge is in addition to the tests of mens rea and actus reus.
if you cannot prove knoweldge that acts were wrong than they child is not criminally liable.
who must prove childs knowledge of guilt?
the burden of proof is with prosecution
as a general rule, who will child offenders be referred to until the age of 14?
A care and protection co-ordinator.
what court will child/ youth offenders between 10-17 years appear in for muder/manslaughter charges?
they will be dealt with under youth justice provisions of the OT Act 1989
Charges will be filed in the district court.
for first appearance takes place before youth court.
the case then automatically gets transfered to high court.
can a child go to prison for manslaughter/ murder charges?
a child may face imprisonment and be detained in a child, youth and family youth justice residence under the custody of the chief executive of ministry of social development (MSD)
where might a child offender who is deemed to need care and protection be detained?
a care and protection residence under the custody of the chief executive of MSD
can a young person be imprisoned for manslaughter/murder charges?
yes. young persons between the ages 14-17 can be imprisoned for murder/ manslaughter and other cat 3 and 4 offences if the penalty is 14+ imprisonment and over.
they man also be detained at a child, youth and family justice residence under the custody of the chief executive of MSD
prosecuting for other serious offences- 272 OT Act 1989
(12-13 years old)
children between the age of 12 to 13 can also be prosecuted for certain serious offences if the offence is punishable by 14 years to life imprisonment.
or where they are between 12-13 years old and they have previously committed another serious offence and the offence was punishable by 10 -14 years imprisonment.
can you be charged if you are deemed insaned?
everyone shall be presumed sane unless proven otherwise.
no one shall be convicted of an offence when labouring under natural imbecility or disease of the mind to such an extent that it rendered them incapable of:
understanding the nature or quality of the act or ommission
knowing that the eact or ommission was morall wrong
can prosecution raise the matter of insanity?
no this is up to the defence to raise.
prosecution is prohibited to adduce evidence of insanity unless there is risk to the community
what happens with evidence that the crown holds in relation to the defendants sanity/insanity.
crown may hold evidence of the persons state of mind and provide it to defence.
It is then up to defence/ the defendant to plea insanity.
judge puts the issue of insanity to a jury
Only under exceptional circumstances would a judge put the issue of insanity to a jury, when the defendant has not pled insanity.
when strong evidence exists of the person insanity a judge must put this to a jury.
if the jury aquit the defendant they must indicate to the judge whether they are aquitted based on innocence or insanity.
can a judge commit a person to a facility based on their mental state?
the judge may commit a person to a hospital or secure facility under the mental health act for either their safety or for the publics safety.
what happens if their is strong evidence of insanity but they have not pled insanity?
a person may be aquitted of a charge even if they have not pled insanity if there is strong evidence to indicate that they were insane at the time of the alleged offending.
burden of proof- insanity
the burden of proof is with defence though their standard of proof is on the balance of probablities not beyond reasonable doubt.
what kind of charges may a person plead insanity to?
any charge punishable by imprisonment
m’naghtens rules re insanity
based on a person ability to think rationally.
if a person was so affected by a disease of the mind they would not be able to know
the nature or quality of their actions
that what they were doing was morally wrong
what does disease of the mind mean?
can be comprehended as mental derangement in the widest sense.
must the brain be physically damaged to fit into the definition of diseased?
the brain does not have to be physically damanged.
when referring to the mind, the law refers to the mental faculties of reason, memory, and understanding.
a disorder may be permanent or temporary.
of short or long duration.
curable or incurable.
is disease of the mind a legal or medical question?
it is a legal question not a medical one, though it may be proven through medical evidence.
knowing their actions were morally vs legally wrong
relatingto insanity
the test is that the defendant knew their actions were morally wrong not legally wrong.
if they can not understand that their actions were morally wrong, than they lack rational understanding
R V CODERE (nature and quality of act)
the nature and quality of the act
means the physical character of the act.
the phrase does not involve any consideration of the accused
moral perception nor his knowledge of the moral quality of the act.
Thus a person who is so deluded that he cuts a womans throat
beleiving that he was cutting a load of bread
would not know the nature or quality of his act.
consequences if found insane
if they are aquitted on account to their insanity or unfit to stand trial they may be:
immediately released.
have alternative mesasures imposed on them.
detained as a special patient or special care recipient.
circumstances and public interest will be considered before making a decision
is automatism culpable?
common law acknowledges automatism as involuntary actions and those actions hold no criminal liability.
what can cause automatism?
arteriosclerosis
brain tumor
concussion
epilypsy
sleep walking
or alcohol and drug consumption
is the defence automatism caused by drugs and alcohol an accepted defence?
courts are reluctant to accept this as a defence without substanital evidence as it is a very popular excuse.
sane automatismis the result
alcohol
concussion
drugs
sleep walking
what is insane automatism caused by?
the result of mental disease.
can automatism = insanity?
some cases of automatism will be treated as insanity if disease of the mind becomes a factor.
this can occur even if the defendant has only pled to automatism and not insanity.
intoxication may be used as a defence if…?
where theintoxication causes disease of the mind to induce insanity
if intent is a essential element and the degree of intoxication is such that one could plead lack of intent.
intoxication causes automatism
can intoxication be used as a defence to any crime requiring intent?
yes this defence can apply to any offence that requires intent
what is an offence called when there is no intent
a strict liability offence
can you plea intoxocation for strict liability offences?
not unless you can prove a total absence of fault.
can intoxication be used as a defence if it was used to assist in the offending (dutch courage)
No
can intoxication be used as to establish ignorance of law?
no
When Will intoxication defence not be accepted?
the defence of intoxication will not be permitted where the offence was violent or put the public in danger if that person consumed drugs and alcohol voluntarily.
section 25- ignorance in law
the fact that a person is ignorant to law does not excuse the offence commited by them.
section 22- children- ignorance to law
children are not liable for offences when they do not know that what they did was criminally wrong.
what is compulsion
the act of compelling a person to do something against their will
is a person liable for offences when acting under compulsion?
the person has a genuine defence if they acted under threats of immediate death or GBH to them or another person when the offence was committed.
these threats must be operating on their mind at the time of the offending.
The threat must be so grave that any reaonsonable person in their place would act the same way.
the defence of mistake/ignorance
if you must prove mens rea for the offence then mistake or ignorance can be used as a defence.
what is entrapment ?
when an enforcement agency deliberately causes a person to commit an offence so that person can be prosecuted.
what happens if the entrapment is considered unfair?
it may result in the court excluding that evidence.
how do you assess fairness when it comes to entrapment?
the court will assess why the defendant was targeted.
the way in which the agent was involved in the initiation of the offending activity.
courts consideration re pre-disposition to offend vs set up for entrapment.
the court will consider-
was an opportunity for those pre-disposed to that sort of offending created
or
did officers initiate and encourage certain offending that the person would not have otherwise committed.
s48- self defence and defence of another
reasonable force may be used to defend yourself or another person provided it is proportonate to the circumstances.
when can force be initiated when defending yourself /others?
use of force is subjective.
force may be used before any actual bodily harm is experienced or threat received to escape or break out from a dangerous situation.
definition of alibi
being elsewhere at the material time
what must a defendant do if they plan to give evidence to support an alibi
give written notice to the prosecutor in relation to the particulars of the alibi.
name and address should be provided to prosecution within 10 days of written notice, or any other information which could help identify the witness.
they should take all reasonable steps to provide this information
what should OC case produce in relation to an alibi?
QHA
active charges report
make enquiries to confirm rebut the alibis evidence
should OC case interview an alibi?
not unless requested by pps.
if pps want you interview the alibi you should
advise defence and give them the opportunity to be present
if the defendant is not represented than have an independant person present for the interview (not police)
make copies of the statement available to defence
what if defence wants to call on expert witnesses?
they must disclose to the prosecutor within 10 working days of trial
any brief or evidence/reports to be given by the witness
if that is not available than provide a summary of their evidence.
what is consent?
consicous and voluntary agreement to something desired or proposed by another.
guidelines to consent (can/can’t consent to)
can consent to:
consenting to surgical operation
inflcition of force not involving bodily harm
cannot consent to:
death or inury likely to cause death.
bodily harm in a manner that would cause a breach of the peace or bring together disorderly persons
it is uncertain to what extent any person has a right to consent to their being put in danger of death or bodily harm by the act of another.
who is unable to give consent
children
persons unable to rationally understand implications of their actions.
those under threat, force or fraud.
you can not use the defence of consent when?
aiding suicide
bodily harm likely to cause breaches of the peace
criminal actions
indecency offences
injury likely to cause death
placing someone at risk of death or bodily harm.
