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Homicide Flashcards

1
Q

Two critical factors to consider for a charge of murder

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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2
Q

Define Homicide

A

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

*** Homicide must be culpable to be an offence

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3
Q

Organisational liability in Homicide

A
  • Manslaughter - an organisation can be convicted as a party to the offence.
  • Murder - an organisation cannot be convicted as either principle or party. This is because the offence carries a mandatory life sentence
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4
Q

Case law - Murray Wright Ltd

A

Homicide and organisational liability

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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5
Q

Define a Child under Section 159

A

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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6
Q

Define Culpable homicide

A

A killing that is blameworthy.

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7
Q

When is homicide culpable under s160(2)(a)

A

Homicide is culpable when it consists in the killing of any person by

  • An unlawful act or
  • An omission without lawful excuse to perform or observe any legal duty or
  • by both combined
  • by causing that person by threats or fear of violence, or by deception, to do an act which causes his death or
  • By wilfully frightening a child under the age of 16 years or a sick person.
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8
Q

Case law - R v Myatt

A

Unlawful acts

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

Circumstances in common law supporting allegations of culpable homicide

A

Causing death by

  • 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 OD
  • 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.
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10
Q

Legal duties defined by CA 61

A

Duties to

  • Provide the necessaries and protect from injury (s151)
  • Provide necessaries and protect from injury to your charges when you are a 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)
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11
Q

Case law - R v Tomars

A

Threats, fear of violence and deception

  • Was the deceased threatened by, in fear of or deceived by the defendant?
  • If they were, did such threats, fear or deception cause the deceased to do the act that caused their death?
  • Was the act a natural consequence of the actions of the defendant, in the sense that reasonable and responsible people in the defendant’s position at the time could reasonably have foreseen the consequences?
  • Did these foreseeable actions of the victim contribute in a significant way to his death?
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12
Q

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
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13
Q

Define Wilfully frightening

A

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

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14
Q

Culpability for killing by influence on mind

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.

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15
Q

s63 - consent and death

A

No one has the right to consent to being killed.

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16
Q

3 points to prove to establish death

A
  • Death occurred
  • Deceased is identified as the person who has been killed
  • The killing is culpable
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17
Q

Case law - R v Horry

A

Missing body

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

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18
Q

Examples of justified homicide

A
  • Homicide committed in self-defence (s48)
  • Homicide commited to prevent suicide or commission of an offence which would be likely to cause immediate and serious injury to the person or property of any-one (s41)

*** other non-culpable homicides are protection from only criminal responsibility

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19
Q

What is Murder - s167

A

Culpable homicide is murder if the offender

  • Means to cause the death of the person killed
  • Means to cause the person killed any bodily injury that is known to the offender to likely cause death, and is reckless whether death ensues or not
  • Means to cause death, or being so reckless, means to cause bodily injury to one person,and by accident or mistake kills another person, though he does not mean to hurt the person killed.
  • For any unlawful object does an act that he knows to be likely to cause death, and thereby kills any person, though he may have desired that his object should be effected without hurting anyone.
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20
Q

Further definition of Murder - s168

A

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,

  • 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, 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:
  • If he or she administers any stupefying or overpowering thing for any of the purposes aforesaid, and death ensues from the effects thereof:
  • If he or she by any means wilfully stops the breath of any person for any of the purposes aforesaid, and death ensues from such stopping of breath.
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21
Q

If charging an offender with Murder, must show that the defendant -

A
  • Intended to cause death or
  • Knew that death was likely to ensue or
  • Was reckless that death would ensue
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22
Q

Case law - Cameron v R

A

Recklessness

Recklessness is established if the defendant recognised that there was a real possibility that his or her actions would bring about the proscribed result and/or the proscribed circumstances existed and having regard to that risk those actions were unreasonable.

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23
Q

Case law - R v Piri

A

Recklessness

Recklessness 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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24
Q

Case law - R v Desmond

A

Killing in pursuit of an unlawful object

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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25
Q

Culpability of person involved in suicide pacts

A

Any survivor of a suicide pact is guilty of being a party to a death (if death of another person within the pact ensues)

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26
Q

Murder penalty

A

Imprisonment for life
- An offender convicted of murder must be sentenced to imprisonment for life unless given the circumstances of the offence and the offender, the sentence would be unjust
- If a court does not impose a sentence of imprisonment for life then must give written reasons for not doing so.

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27
Q

Case law - R v Murphy

A

Attempted murder

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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28
Q

Case law - R v Harpur

A

Proximity

The Court may have regard to the conduct view 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 thought not determinative.

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29
Q

Notes on proximity

A

Proximity is 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.

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30
Q

Test for proximity

A

Has the offender

  • Done anything more than getting himself into a position from which he could embark on an actual attempt? or
  • Actually commenced execution, that is to say, has he taken a step in the actual offence it self?
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31
Q

Attempted murder penalty

A

Imprisonment for a term not exceeding 14 years.

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32
Q

Penalties for Counselling or attempting to procure murder AND Conspiracy to murder

A

Imprisonment for a term not exceeding 10 years

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33
Q

Differences between Counselling or attempting to procure murder vs Conspiracy to murder

A
  • Counselling or attempting to procure murder requires that the offence to be committed in New Zealand, whereas with conspiracy to murder, the murder can take place in New Zealand or elsewhere.
  • Counselling or attempting to procure murder only applies if the murder is not committed, whereas conspiracy to murder applies regardless of whether murder is committed or not.
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34
Q

Case law - R v Mane

A

Accessory to murder

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

What is involuntary manslaughter

A

Covers those types of unlawful killings in which the death is caused by an unlawful act or gross negligence. In such cases there has been no intention to kill or to cause GBH.

36
Q

Four point test for proving an unlawful act for manslaughter - Newbury and Jones

A
  • The defendant must intentionally do an act
  • The act must be unlawful
  • The act must be dangerous
  • The act must cause death
37
Q

The standard to which prosecution must prove for negligence before a conviction can be obtained for manslaughter

A

Very high degree of negligence or gross negligence.

38
Q

Manslaughter penalty

A

Life imprisonment

39
Q

What is Infanticide - s178

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 any 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 3 years.

40
Q

Who determines the mother’s state of mind in relation to infanticide

A

The jury.
Woman may be acquitted on insanity if charged with murder or manslaughter but the jury believes her state of mind is due to the effects of child birth.

41
Q

Legal duties of parent under s152

A

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

42
Q

Define vulnerable person

A

Means 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.

43
Q

What is Abandoning child - s154

A

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

44
Q

What is acceleration of death - s164

A

Every one who by any act or omission causes the death of another person kills that person, although the effect of the bodily injury caused to that person was merely to hasten his death while labouring under some disorder or disease arising from some other cause.

45
Q

R v Blaue

A

Preventable death

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

46
Q

Define Novus acus interviens

A

An intervening act that breaks the chain of causation

47
Q

What is aiding and abetting suicide - s179

A

Everyone 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 there of; or
(b)Aids or abets any person in the commission of suicide

48
Q

Define Suicide pact - s180(3)

A

For the purposes of this section the term 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.

49
Q

Outline Concealing dead body of child - s181

A

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.

50
Q

Admissibility of hearsay -s18 EA2006

A

(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

51
Q

Culpability for children

A

Under 10 - s21(1)
- No person shall be convicted of an offence by reason of any act done or omitted by him when under the age of 10 years

Between 10-14 - s22(1)
- No person shall be convicted of an offence by reason of any act done or omitted by him when of the age of 10 but under 14, unless he knew either that the act or omission was wrong or that it was contrary to law.

52
Q

R v Forrest and Forrest

A

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

53
Q

Define Insanity - s23

A

(2) No person shall be convicted of an offence by reason of an act done or omitted by him when labouring under natural imbecility or disease of the mind to such an extent as to render him 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.

54
Q

What is the burden of proof for insanity?

A

The defendant is not required to prove the defence of insanity beyond reasonable doubt, but to the satisfaction of the jury on the balance of probabilities.

55
Q

Case law - R v Cottle - Burden of proof - insanity

A

Burden of proof - insanity

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.

56
Q

Case law - R v Clark

A

Determining insanity

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 that evidence.

57
Q

What is M’Naghten’s rules

A

M’Naghten’s rules are frequently used to establish whether or not a defendant is insane. It is based on a persons’s ability to think rationally, so that if a person is insane they were acting under such a defect of reason from a disease of the mind they did not know :

  • The nature and quality of their actions or
  • That what they were doing was wrong
58
Q

Outline Disease of the mind

A

Is a term which defies precise definition and can comprehend mental derangement in the widest sense. Does not include a temporary mental disorder caused by some factor external to the defendant such as a blow on the head, drugs, alcohol, anaesthetic or hypnotism.

59
Q

Disease of the mind is a question of

A

Question of law and decided by the judge.

It is not a medical question but a legal one.

60
Q

Case law - R v Codere

A

Nature and quality

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.

61
Q

R v Cottle - Automatism

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.

62
Q

Define Automatism

A

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

**may lead to a finding of insanity

63
Q

Culpability for Automatism

A

Actions performed in a state of automatism are involuntary and the common law rule is that there is not criminal liability for such conduct.

64
Q

Court views on automatism brought about by voluntary intake of alcohol or drugs.

A

The court may be reluctant to accept that the actions were involuntary or that the offender lacked intention.

65
Q

Two types of automatism

A

Sane automatism - The result of somnambuliusm (sleepwalking), a blow to the head or the effect of drugs

Insane automatism - the result of a mental disease

66
Q

General rules on intoxication

A

In the past intoxication was considered to be no defence to a criminal charge and, indeed, an aggravating rather than mitigating factor. The general rule has been that intoxication may be a defence to the commission of an offence:

  • Where intoxication causes a disease of the mind so as to bring s23(insanity) into effect
  • If intent is required as an essential element of the offence and the level of intoxication is such that a defence can please a lack of intent
  • Where the intoxication causes a state of automatism (complete acquittal).
67
Q

Explain ignorance of law - s25

A

The fact that an offender is ignorant of the law is not an excuse for any offence committed by him. (excludes children - s22)

68
Q

Case law - R v Joyce

A

Compulsion

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

69
Q

What must be satisfied before a defence of compulsion can be used

A

A person is protected from criminal responsibility if they have been compelled to commit the offence by someone at the scene who had threatened them that they would otherwise be killed or caused grievous bodily harm. The accused must have genuinely believed the threats and must not be a party to any association or conspiracy involved in carrying out the threats.

70
Q

Notes on Mistake as a defence

A

Except in cases where proof of mens rea is unnecessary, bona fide mistakes or ignorance as to matters of fact is available as a defence. No obligation on defendant to prove reasonable grounds for such belief.

71
Q

Court views on entrapment

A

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

72
Q

What is entrapment

A

Entrapment occurs when an agent of an enforcement body deliberately causes a person to commit an offence, so that person can be prosecuted.

73
Q

Case law - Police v Lavelle

A

It is permissible for the 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.

74
Q

Explain self defence and defence of another - s48

A

Everyone 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.

**Jude decides whether evidence is fit to be left to the jury.
**Pre-emptive strike is possible for self-defence

75
Q

Self defence - degree of force test

A
  • What are the circumstances that the defendant genuinely believes exists
  • Do you accept that the defendant genuinely believes those facts?
  • Is the force used reasonable in the circumstances believed to exist?
76
Q

Notice of alibi - s22, when defence wants to call alibi, they must..

A

If a defendant intends to adduce evidence in support of an alibi, the defendant must give written notice to the prosecutor of the particulars of the alibi. Notice must be given within 10 working days after the defendant is given notice under s20.

77
Q

Define Alibi

A

An alibi is the plea in a criminal charge of having been elsewhere at the material time: the fact of being elsewhere

78
Q

What must the defendant include in a notice of alibi?

A

The name and address of the witness or, if the name and address is not known to the defendant when the notice is given, any matter known by the defendant that might be of material assistance in finding that witness.

79
Q

Explain the procedure for interviewing an alibi witness

A

The O/C case should not interview an alibi witness unless the prosecutor requests them to do so. If an interview is requested, follow this procedure.

  • Advise the defence counsel of the proposed interview and give them a reasonable opportunity to be present
  • If the accused is not represented, endeavour to ensure the witness is interviewed in the presence of some independent person not being a member of the Police.
  • 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).
80
Q

If defendant intends to call an expert witness during proceedings, what must they disclose?

A
  • Any brief of evidence to be given or any report provided by that witness, or
  • If that brief or any such report is not available, a summary of the evidence to be given and the conclusions of any report to be provided.
  • This information must be disclosed at least 14 days before the date fixed for the defendants hearing or trial, or within any further time that the court may allow (s23(1))
81
Q

Define consent (R v Cox)

A

R v Cox - Consent must be full, voluntary, free and informed, given by a person in a position to form a rational judgement.

82
Q

Guidelines for consent regarding assault

A
  • Everyone has a right to consent to a surgical operation
  • Everyone has a right to consent to the infliction of force not involving bodily harm
  • No one has a right to consent to their death or injury likely to cause death
  • No one has a right to consent to bodily harm in such a manner as to amount to a breach of the peace, or in a prize fight or other exhibition calculated to collect 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.
83
Q

What are the two types of Manslaughter

A
  • Voluntary
  • Involuntary
84
Q

Circumstances to consider for reasonable assurance in relation to hearsay evidence

A
  • The nature of the statement
  • The contents of the statement
  • The 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
85
Q

Define justification

A
86
Q

Difference between voluntary and involuntary manslaughter

A

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