Homicide Flashcards
Homicide defined
Section 158 crimes act 1961
Killing of a human being by another, directly or indirectly, by any means whatsoever
explain Murray Wright Ltd
Because killing must be done by a human being an organisation cannot be convicted as a principal offender
Definition of child
Section 158 CA 1961
A child becomes a human being when it has completely proceeded a living state from the body of its mother, whether it has breathed or not, whether it has independent circulation or not l, and whether the navel string is severed or not
The killing of such a child is homicide if it dies in consequences of injury’s received before, during or after birth
Culpable homicide CA 1961
Section 160 CA1961
Homicide is culpable when it consists in the killing of any person;
-by an unlawful act
- by an omission without lawful excuse to perform or observe any legal duty
- by both combined
- by causing that person threats or fear of violence, or by deception to do an act that causes his death
- by wilfully frightening a child under 16 or a sick person
Unlawful act
Unlawful act means a breach of any act, regulation, rule, or bylaw
R v MYATT - unlawful act
Before a breach of any act l, or regulation or bylaw would be an unlawful act under Section 160 for the purposes of culpable homicide it must be an act likely to do harm to the deceased or sole class of persons of whom
He was one
Examples of Legal duty imposed by statue or common law
-Provide the necessaries and protect from injury
- provide necessaries and protect from injury to your charges when you are a parent of guardian
- provide necessaries as an employer
- use reasonable knowledge and skill when preforming dangerous acts suck as surgery
- take precautions when handling dangerous things such as heavy machinery
- avoid omissions that will endanger life
R v TOMARS threats/fear
- was the deceased threatened by, in fear of it 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 defendants position at the time could reasonably have foreseen the consequences?
- did the foreseeable actions of the victim contribute in a significant way to his death
Examples of culpable homicide through threats
Jumps or falls out of a window and does because they think they going to be assaulted
Jumps into a river to escape attack and drowns
Jumps from a train and is killed while being assaulted and beloved their life is in danger
Who is culpable for Killing by influence on the mind
No one is criminally responsible for killing of another by influence on the mind alone, except by willing frightening a child under 16 or a sick person
Establishing Death
The establish death you must prove
Death occurred
Deceased is identified as person killed
The killing is culpable
Death can be proved by direct or circumstantial evidence
R v HORRY proving death circumstantially
Death should be probable 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
Examples of justifiable homicide
Homicide committed in self defence
Homicide committed to prevent suicide or commission of an offence which would likely to cause immediate and serious injury to the person or property of anyone
Murder section 167 CA 1961
Section 167 CA 1961
Culpable homicide is murder in each of the following cases
If the offender means to cause the death of the person killed
If the offender means to cause the person killed any bodily injury that is known to the offender to be likely to cause death and is reckless to wether death ensues or not
If the offender means to cause death or being reckless as aforesaid means to cause 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
If the offender for any unlawful object does an act they he knows to be likely to cause death and thereby kills any person though he may have desired that his object should be affected without hurting anyone
Murder further defined Section 168 CA 1961
Culpable Homicide is also murder in each of the following cases wether the offender means or does not mean death to ensue or knows or does not know that death is likely to ensue
If he means to cause GBH for the purpose of facilitating the commission of any of the offences mention in subsection 2 of this section or facilitating flight or avoiding the detection of the offender upon the commission or attempted commission or for the purpose of resisting lawful apprehension in respect of any offence whatsoever and death ensues from such injury
If he administers any stupefying or overpowering thing for the purposes aforesaid and death ensures from the effects
If he by any means will fully stops the breath of any person for any purpose aforesaid and death ensues from stopping of breath
What must you prove for intent, regarding murder
If you are charging a defendant with murder you must prove
They intended to cause death
Knew that death was likely to occur
Was reckless that death would occur
CAMERON v R
Recklessness is established
If the defendant recognised that there was a real possibility that
His actions would bring about proscribed result
That the proscribed circumstances existed
Having regard to that risk those actions were unreasonable
To show that the defendants state of mind meets the provisions of Section 167(b) you must establish that the defendant
Intended to cause bodily injury to the deceased
Knew that the injury was likely to cause death
Was reckless as to wether death ensued or not
R v PIRI reckless with murder
Recklessness involves a conscious deliberate risk taking. The degree of risk of death foreseen by the accused under either 167b or 167d must be more than negligible or remote. The accused must recognise a real and substantial risk that death would be caused
R v DESMOND knowledge
Not only must the object be unlawful but also the accused must know that his act is likely to cause death. It is shown that his knowledge accompanied the act causing death
Attempts section 72 CA 1961
Everyone 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
R v MURPHY attempts
When proving an attempt to commit an offence it must be shown that the accused 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
R v HARPUR attempts
The court may have regard to the conduct viewed cumulatively up to the point when the conduct in question stops the defendants conduct may be considered in its entirety considering how much remains to be done is always relevant though not determinative
Test for proximity
Sinister and brookbanks suggested two questions
Had the offender done more than getting himself into position from
Which he could embark on an actual attempt
Has the offender actually commenced execution, has he taken a step to the actual offence
Is Proximity a question of law?
Proximity is a question of law is is a question decided by the judge based on the assumption that the facts in the case are proved
R v MANE accessory
For a person to be an accessory the offence must be complete at the time of the criminal involvement, One cannot be convicted or being an accessory after the fact of murder when the act is Reus of the alleged d criminal conduct was wholly completed before the offence of homicide was competed
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
Killing in a sudden fight
Consider wether there was self defence/the requisite men’s rea for a murder charge
It is crucial for you to consider these issues if you are ti decide the way in which the killing should be viewed
If the homicide can be justified as having arisen out of self defence the proper verdict is acquittal
If the fact there was a fight negates that the defendant had the required mens rea to bring a charge of murder within section 167 the proper verdict of manslaughter
Four point test for manslaughter
The defendant must intentionally do an act
The act must be unlawful
The act must be dangerous
The act must cause death
Death in a lawful game or contest
The death is treated as non culpable homicide unless the defendants actions were likely to cause serious injury in which case the defendant is guilty of manslaughter
Involuntary manslaughter
Covers types of killing in which death is caused by an unlawful act or gross negligence, in such cases there has been no intention to kill or cause grievous bodily harm
Infanticide
Section 178 CA 1961
Where a woman causes the death of any child of hers under the age of 10 in a manner that amounts to culpable homicide and where at the time of the offence the balance in 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 any disorder consequent upon childbirth or lactation to such an extent that she should not be fully held responsible she is guilty of infanticide and. It if murder or manslaughter 3 years imprisonment
Definition of parent
Everyone who is a 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
Vulnerable adult
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
R V BLAUE violence
Those who use violence must take their victims as they find them
Is withdrawal of life support treatment?
No R v TAREI, to withdraw life support is to stop the artificial extending of life and not causing death
Concealing body of dead child
Section 181 CA 1961
Everyone is liable to imprisonment of 2 years who disposed of a any child in any manner with intent to conceal the fact of its birth, wether the child died before or during or after birth
Admissibility of hearsay statements
The court must consider
The nature of the statement
The contents of the statement
The circumstances relating to making the statement
Circumstances to the veracity of the person making the statement
Circumstances relating to the accuracy of the person observation of the person
Defences for children for murder
Children under 10 not liable
No person aged between 10 and 14 can be convicted of an offence unless he knew either that the act or omission was wrong or contrary to law
Test of knowledge for children
The test of knowledge is in addition to the Mrs rea and acrid rea requirements if this knowledge can’t be shown the child cannot be criminally liable for the offence
R v FORREST AND FORREST
The best evidence possible in the circumstances should be provided by the prosecution in proof of the persons age
Where do children aged between 10 -13 appear
Charges are filed in the district court, the first appeal e takes place in the youth court and the case automatically transfers to the high court for trial
Defence Insanity
Everyone is presumed to be sane at the time of doing or omitting any act untill the contrary is provided
R v COTTLE insanity as a defence
As to the degree of proof, it is sufficient if the plea is established to the satisfaction of the jury on a preponderance of possibilities without necessarily excluding all reasonable doubt
R v CLARK insanity as a defence
The decision as to an accused 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 which in this case shows that the accused did not and had been unable to know that his act was morally wrong
What are M’NAGHTENS rules
It is based on the persons 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 that they did not know
The nature and quality of their actions or
That what they were doing was wrong
Is temporary metal disorder considered insane
Disease of the mind does not include a temporary mental disorder caused by some of external factor to the defendant such as a blow on the head the absorption of drugs, alcohol, or an anaesthetic or hypnotism
R v CODERE 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 this knowledge of the moral quality of the act. Thus a person who is deluded that he cuts a woman’s neck believing that he is cutting a loaf of bread would not know the nature or quality of his act
Definition of Automatism
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
R v COTTLE automatism
Doing something without knowledge of it and without memory afterwards of having done it - a temporary eclipse of consciousness that nevertheless leaves a person so affected able to exercise bodily movements
What are the two types of automatism
Sane - the result of sleepwalking, blow to the head or the effect of drugs
Insane - the result of a mental disease
Criminal act not requiring intent
Driving with excess blood alcohol
Application of defences of drug or alcohol induced Automatism
In NZ the courts take a middle course allowing the defence of automatism arising out of drugs and alcohol for offences of basic intent only. They are likely to disallow a defence where the state of mind is obviously self inflicted the person is blameworthy and the consequences could have been expected
Intoxication as defence for murder
In cases of homicide and other crimes evidence that the person formed the intent to commit a crime then took alcohol or drugs as part of a method of committing the crime (Dutch courage) will disqualify a defence of drunk ness or automatism
Ignorance of law as a defence
The fact that the offender is ignorant of the law is not an excuse for any offence committed by him
Define Compulsion
A person who commits an offence while under compulsion by threats of immediate death or GBH from a person present when the offence is committed is protected, if they believe the threats will be carried out and he is not a party to it any association or conspiracy to offence
R v JOYCE
The court of appeal decided that compulsion must be made by a person who is present when the offence is committed
NZ courts and entrapment
In NZ the courts have rejected entrapment as a defence per se, preferring to instead rely on the discretion of the trial judge to exclude evidence that would operate unfairly against the defendant
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 persons interest or willingness to offend
Self defence as a defence
Once the defendant has decided that the use of force was required (subjective) section 48 then introduces reasonableness which involves an objective view as to the degree and manner of the force used
Definition of Alibi
As the plea in a criminal charge of having been elsewhere at the material time: the fact of being elsewhere
Notice of Alibi
If the defendant intends to adduce evidence in support of an alibi the defend t must give written notice to the prosecutor of the particulars of the alibi
Must be given within 10 working days after the defendant is given notice under section 20
Interviewing Alibi witness
OC should not interview the Alibi witness unless requested by the prosecutor
Procedure
Advise defence counsel of proposed interview and give them reasonable opportunity to be present
If defendant is not represented endeavour to ensure witness is interviewed in presence of independent person not a police officer
Make a copy of statement and make a single to the defence, any info that reflects on the credibility of the alibi witness can be withheld under section 16(1)(o)
What can’t consent to
Death or injury likely to cause death
Bodily harm in such a manner as to amount to breach of peace
Aiding suicide
Criminal actions
Placing of someone in situation where they are at risk of death or bodily harm
