Homicide Flashcards
What is the definition of homicide?
Homicide is the killing of a human being by another, directly or indirectly by any means whatsoever
What is a culpable homicide?
Homicide is culpable when it consists in the killing of any person -
a) By an unlawful act
b) By an omission without lawful excuse to preform or observe any legal duty
c) By both combined
d) By causing that person by threats or fear of violence, or by deception to do an act which causes his death
e) By wilfully frightening a child under the age of 16 years or a sick person
Define unlawful act
Means a breach of any Act, regulation, rule or by law
In common law, allegations of culpable homicide have been supported where the offenders have caused death by particular circumstances. Name four of these circumstances (4 example of culpable homicide)
Committing arson
Giving a child an excessive amount of alcohol
Supplying heroin to a person who subsequently dies from an overdose
Conducting an illegal abortion
Define Legal Duty
Legal duty refers to those imposed by status or common law
List 4 statutory legal duties in respect of the Crimes Act 1961
Provide the necessaries and protect from injury
Provide necessaries as an employer
Take precautions when in charge of dangerous things
Avoid omissions that will endanger life
Give two practical examples of a culpable homicide which has been caused by the victims actions promoted by the threats of fear and violence
A person jumps or falls out a window and dies because they think they are going to be assaulted
A person jumps into a river to escape an attack and drowns
A person who has been assaulted and believes their life is in danger, jumps from a trains and is killed
In general, no one is criminally responsible for the killing of another by influence of the mind. What are the exceptions to this rule?
Wilfully frightening a child under 16 years or a sick person
To establish proof of death you must prove…?
Death occurred
Deceased is identified as the person who has been killed
Killing is culpable
To establish death you must prove…?
Death occurred
Deceased is identified as the person who has been killed
Killing is culpable
Murder defined (s.167)
Culpable homicide is murder is the following cases:
a) Offender means to cause death of the person killed
b) Offender means to cause person killed any bodily injury that is known to likely cause death, and is reckless as to whether death ensues
c) Offender means to cause death or being reckless as aforesaid, causes bodily injury and by accident or mistake kills another person
d) Offender does, by and unlawful object, any act likely to cause death, thereby kills another person
For a Murder charge (s.167) what must you prove?
Must shows the defendant:
- intended to cause death
- knew that death was likely to ensure
- was reckless as to whether death would ensue
In relation to being charged as a secondary party to murder, what must be shown
The secondary party must known that the principle party might do an act that causes death.
Joint responsibility- must be shown the secondary party knew it was a probable consequence that the principle might do an act that would, if death ensued, bring their conduct within the terms of s.168.
What is the punishment for murder?
Life imprisonment (subject to section 102 of the sentencing act)
Section 102 Sentencing Act
1) Offender for murder must be sentenced to life imprisonment unless circumstances of offender mean life in prison would be manifestly unjust
2) if a court does not impose life imprisonment, it must give written reasons for not doing so
Punishment for Manslaughter
Liable to life imprisonment. The judge may impose a penalty from a fine to life imprisonment depending on the circumstances
Define Attempts (s.72)
Everyone who
Having intent to commit an offence
Does or omits and act for the purpose of accomplishing his object
Whether or not in the circumstances it was possible to commit the offence or not
Simester and brookbanks and suggest the following questions should be asked in determining at which point an act of mere preparation may become an attempt:
- Has the offender done anything more than get himself in a position where he could embark on an actual attempt?
- Has the offender actually commenced execution?
If yes = attempt
If no = preparation
Define involuntary manslaughter
Unlawful killing where death is caused by an unlawful act or gross negligence. No intention to kill or cause GBH.
Voluntary Manslaughter
Mitigating circumstances, such as a suicide pact, reduce what would otherwise be murder or manslaughter even if the defendant may have intended to kill or do GBH
What is the four point test for proving unlawful act for manslaughter?
- The defendant must intentionally do an act
- Act must be unlawful
- Act must be dangerous
- Act must cause death
What are some examples of manslaughter by negligence?
Deceased rides on a car bonnet driven dangerously (no defence, the fact that the deceased consented does not provide a defence)
Person dies while playing a lawful game or contest (may be non-culpable homicide or manslaughter defence)
Deceased contributed to their death by their own negligence (contributory negligence is no defence)
Before a conviction can be obtained for manslaughter, where one of the sections referred to is s.150A of CA61, what must the prosecution prove?
The prosecution must prove ‘a very high degree’ of negligence or ‘gross negligence’.
State the ingredients for infanticide - s.178
Where a woman causes death of any child of hers under the age of 10 years in a manner that amount to culpable homicide
Where at the time of the offence, the balance of her mind was disturbed
By reason of not having full recovered from the effect of giving birth or;
By reason of the effect of lactation or;
By reason of any disorder consequent of child birth or lactation
To such an extent that she should not be held fully responsible
Where a charge of infanticide is laid, who decides on the mother’s state of mind?
Jury to decide on mother’s state of mind. The prosecution may file charging documents for both infanticide and for murder of an infant. It is up to the jury to decide in the mother’s state of mind.
Section 151 (Look after mum) To provide necessaries and protect from injury
Everyone who has actual care of a vulnerable adult who is unable to take care of themselves is under legal duty to provide that person with necessaries and take reasonable steps to protect that person from injury
What are the legal duties of a parent/guardian under section 152 of CA61? (section 152 - a child wahoo!)
Everyone who is a patten or in place of a parent who has actual care for a child under the age of 18 years is under a legal duty to provide that child with necessaries and take reasonable steps to protect that child from injury.
Section 153 - boss looks after me
Everyone who as an employer has contracted to provide necessary food, clothing or lodging for any servant or apprentice under the age of 16 years is under legal duty to prove the same and is criminally responsible for omitting without lawful excuse to perform su ch duty if the death of that servant or apprentice is caused, or if his life is endangered or his health permanently injured such omission
Define Vulnerable adult
A person unable by detention/sickness/age/mental impairment or any cause, to withdraw themselves from the charge/care of another person. May be short lived or temporary.
Define necessaries
No authority on what is meant by ‘necessaries’. A somewhat broader concept than necessaries of life. Encompasses commodities and services such as food, clothing, housing, warmth and medical care
Withdrawal of life support - R V Tarei
R v Tarei held that the withdrawal of any form of life support system is not ‘treatment’ under s.166 CA61. To withdraw life support does not cause death but removes the possibility of extending a persons life through artificial means
Suicide pact
Means a common agreement between 2 or more persons having for its object, the death of all of them.
Provide an overview of the culpability of persons involved in a suicide pact
(1) Everyone who in pursuance of a suicide pact, kills another person, is guilt of manslaughter not murder
(2) When 2 or more people enter into a suicide pact, and 1 or more of them kills him/herself, and survivor is guilty of being a party to a death under suicide pact
Outline s.181- Concealment of a dead body of a child
Everyone who
Disposes of the dead body of a child in any manner
With intent to conceal the fact of its birth
Whether the child died before/during/after the birth
The body must be dead when disposed of, although not necessary that the body should be found or identified
2 year imprisonment
When is a hearsay statement admissible?
a) In circumstances relating to the statement provide reasonable assurance that the statement is reliable
b) either
- the maker of the statement is unavailable as a witness or;
- the judge considers the undue expense or delay would be caused if the maker of the statement was required as a witness
If a statement is taken from a person who may die of who has died, what must the court be satisfied with?
The court must be satisfied the content and the person who made the statement are reliable. Circumstances to consider are:
- The nature of the statement
- The contents of the statement
- The circumstances relation to the making of the statement
- The circumstances relation to the veracity of the person
- The circumstances relating to accuracy of observations
Outline culpability for children under the age of 10 years old
No person may be convicted of an offence under the age of 10 years. A child under 20 has absolute defence. Still need to establish whether or not they are guilty.
Prosecution procedures
Child between 10-13 years charged with murder (along with 14-16)
General rule = all child offenders will be referred to the care and protection coordinator until they reach the age of 14 years
Charges filed at district court
First appearance in Youth Court
Automatic transfer to the High Court for Trial and Sentencing
What are the Mcnaughten Rules?
Used to establish whether or not the defendant is insane. Based on a persons ability to think rationally, so that if a person is instance 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
What is the burden of proof for insanity?
The burden of proof is on the defence to prove the defendant is insane. Does not need to be proved beyond reasonable doubt, rather on the balance of probabilities
Define Automatism
A state of total blackout during which a person is not conscious of their actions and does not control them
What are the two types of automatism?
Sane automatism - the result of sleepwalking, blow to the head, or drugs
Insane Automatism - the result of a mental disease
Outline s.25 - Ignorance of Law
The fact that an offender is ignorant of the law is not an excuse for any offence committed by them
When may intoxication be a defence to the commission of an offence?
May be a defence where:
- The intoxication causes a disease of the mind
- If the intent is required as an essential element to the offence, and intoxication is such that defendant can please to lack of intent to commit an offence
- Where intoxication causes a state of automatism
How do NZ courts deal with a defence if automatism arising out of taking drugs/alcohol?
Likely disallow the defence where the state of mind is obviously self-induced, the person is blameworthy and the consequences could have been expected
How to NZ courts deal with a defence of automatism arising out of taking drugs/alcohol?
Likely disallow the defence where state of mind is obviously induced, the person is blameworthy and the consequences could have been expected
Define compulsion/duress
Act of compelling someone to do something against their will
Threats must be operating in their mind at the time of the act, and be so grave that they might have well caused a reasonable person placed in the same situation to act the same way
Explain entrapment
When an agent of enforcement body deliberately cause a person to commit and offence, so that person can be prosecuted
List the ingredients of s.48 - Self Defence
Everyone is justified in using
In the defence of himself/herself/another
Such force as in circumstances as he or she believes them to be
It is reasonable to use
The degree of force permitted is tested under the following subjective criteria. What are the three criteria?
What are the circumstances the defendant genuinely believes exist?
Do you accept that the defendant genuinely believed those facts?
Is the force used reasonable in the circumstances believed to exist?
Definition of Alibi
The plea in a criminal charge of having been elsewhere at the material time: The fact of being elsewhere.
Written notice of an alibi is to be given by the defendant….
Within 10 working days after the defence is given notice under section 20
What procedure should be followed if an interview is requested?
- Advise defence counsel of interview and give them the opportunity to be present
- Ensure the witness is interviewed in the presence of an independent person
- Make a copy of the statement and make it available to defence
If a defendant intends to call expert witnesses, what must they disclose to the prosecutor?
- any brief of evidence to be given/report provided
- if not available, a summary of the report and conclusions of it
- must be dislocated at least 10 working days before the trial
What actions do not allow for a defence of consent?
You cannot use consent in the following cases:
- aiding suicide
- criminal actions
- injury likely to cause death
- bodily harm likely to cause death
- indecency offences
- placing someone in a situation where they are at risk of death/bodily harm
Define consent
A persons conscious and voluntary agreement to do something desired or proposed by another
Define justified
Not guilty of an offence and is not liable civilly
No person between the ages of 10-14(13) should be convicted of an offence unless….
They knew it was wrong and contrary to law
Explain insanity
Everyone shall be presumed sane at the time of act/omission
No one shall we convicted of an offence when labouring under imbecility/disease of the mind to such an extent as to render him/her incapable:
a) of understanding the nature/quality of the act/omission or
b) of knowing that the act was morally wrong
What are the 5 guidelines to consent regarding assault?
- Everyone had the right to consent to surgical operation
- Everyone has a right to consent to the infliction of force not involving bodily harm
- No one has the right to consent to their death or injury likely to cause death
- None has the 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 the right to consent to their being put in danger of death or bodily harm by the act of another
