Homicide

Question 1

Homicide (definition)

Answer 1

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

Question 2

Killing of a child (Definition)

Answer 2

(1) 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.
(2) The killing of such child is homicide if it dies in consequence of injuries received before, during, or after birth

Question 3

Culpable Homicide

Answer 3

(1) Homicide may be either culpable or not culpable.
(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.

Question 4

Unlawful Act (Definition)

Answer 4

A breach of any Act, regulation, rule, or bylaw

Question 5

R v TOMARS

Answer 5

formulates the issues in the following way:
1. Was the deceased threatened by, in fear of or deceived by the defendant?
2. If they were, did such threats, fear or deception cause the deceased to do the act that caused their death?
3. 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?
4. Did these foreseeable actions of the victim contribute in a [significant] way to his death?

Question 6

Examples of culpable homicide caused by actions prompted by threats, fear of violence or deception are when a person

Answer 6

• 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.

Question 7

Proof of death

Answer 7

• death occurred
• deceased is identified as the person who has been killed
• the killing is culpable

Question 8

Examples of non-culpable homicide

Answer 8

• homicide committed in self-defence (s48)
• homicide committed 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).

Question 9

Cameron v R

Answer 9

Defendant recognised that there was a real possibility
that his actions would bring about the proscribed
result; and/or
(ii) that the proscribed circumstances existed; and
(b) having regard to that risk those actions were unreasonable.

Question 10

To show that the defendant’s state of mind meets the provisions of s167(b), you must establish that the defendant:

Answer 10

• intended to cause bodily injury to the deceased
• knew the injury was likely to cause death
• was reckless as to whether death ensued or not

Question 11

Counselling or attempting to procure murder

Answer 11

s174 - Every one is liable to imprisonment for a term not exceeding 10 years who incites, counsels, or attempts to procure any person to murder any other person in New Zealand, when that murder is not in fact committed.

Question 12

Conspiracy to murder

Answer 12

175 - Everyone is liable to imprisonment for a term not exceeding 10 years who conspires or agrees with any person to murder any other person, whether the murder is to take place in New Zealand or elsewhere.

Question 13

Accessory after the fact

Answer 13

An accessory after the fact to an offence is one who, knowing any person to have been a party to the offence, receives, comforts, or assists that person or tampers with or actively suppresses any evidence against him or her, in order to enable him or her to escape after arrest or to avoid arrest or conviction.

Question 14

Killing in a sudden fight

Answer 14

• If the homicide can be justified as having arisen out of self-defence (s48) the proper verdict is an 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 is manslaughter.

Question 15

Manslaughter by unlawful act

Answer 15

1. The defendant must intentionally do an act
2. The act must be unlawful
3. The act must be dangerous
4. The act must cause death

Question 16

Duty of parent or guardian to provide necessaries and protect from injury

Answer 16

152 - 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
(a) to provide that child with necessaries; and
(b) to take reasonable steps to protect that child from injury

Question 17

R v BLAUE

Answer 17

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

Question 18

R v TAREI (Withdrawal of life support)

Answer 18

withdrawal of any form of life support system is not “treatment” under s166 Crimes Act 1961. To withdraw life
support does not cause death but removes the possibility of extending the person’s life through artificial means

Question 19

Aiding and abetting suicide

Answer 19

179 - Every one 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 thereof; or
(b) Aids or abets any person in the commission of suicide

Question 20

Concealing dead body of child

Answer 20

181 - 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.

Question 21

Reasonable assurance - statement

Answer 21

• 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

Question 22

Children under 10

Answer 22

s21 - 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.

Question 23

Children between 10 and 14

Answer 23

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 the age of 14 years, unless he knew either that the act or omission was wrong or that it was contrary to law.

Question 24

R v CLANCY (Proof of age)

Answer 24

the best evidence as to the date and place of a child’s birth will normally be provided by a person attending at the birth or
the child’s mother … Production of the birth certificate, if available, may have added to the evidence but was not essential

Question 25

R v GREEN (Raising issue of insanity)

Answer 25

insanity is a matter for the defence to raise and the prosecution is prohibited from adducing evidence of insanity

Question 26

Degree of proof required for insanity

Answer 26

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.

R v COTTLE:
a preponderance of probabilities without necessarily excluding all reasonable doubt.

Question 27

Temporary mental disorder not included

Answer 27

“Disease of the mind” does not include a temporary mental disorder caused by some factor external to the defendant, such as a blow on the head, the
absorption of drugs, alcohol, or an anaesthetic, or hypnotism

Question 28

R v CODERE (Nature & quality of act)

Answer 28

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.

Question 29

Intoxication available as a defence to any crime requiring intent

Answer 29

In cases of homicide and other crimes, evidence that a person formed an intent to commit a crime and then took drink or drugs as part of the method
of committing the crime (gaining Dutch courage) will disqualify a defence of drunkenness or automatism

Question 30

Self defecne or defence of another

Answer 30

48 - Every one 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.

Question 31

Alibi (Definition)

Answer 31

The plea in a criminal charge of having been elsewhere at the material time: the fact of being elsewhere.

Question 32

Procedure for alibi witness interview

Answer 32

• Advise the defence counsel of the proposed interview and give
  them a reasonable opportunity to be present
• If the defendant 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).