HOMICIDE Flashcards
1
Q
What are the critical factors to consider a charge of murder?
A
- to kill the person or
- cause bodily injury that the offender knew was likely to cause death
2
Q
Define Homicide
A
Homicide is the killing of a human being by another directly or indirectly, by any means whatsoever
3
Q
When does a child become human?
A
A child becomes human when they have proceeded into a living state from the body of its mother, whether breathing or not, whether it has an independent circulation or not and whether the navel string is severed or not
4
Q
What is culpable homicide?
A
A killing that is blameworthy, includes murder, manslaughter or infanticide
5
Q
When would someone be criminally responsible working in care?
A
If the unlawful act is a major departure from the standard or care expected from a reasonable person in the particular circumstances
6
Q
When can an omission of legal duties amount to homicide?
A
Death would not have occurred as and when it did had the defendant performed the duty in question and it must have been a “substantial and operative cause of death”
7
Q
How to establish that a death has occurred?
A
- death has occurred
- deceased is identified as the person who has been killed
- killing is culpable
- can be proved by direct and/or circumstantial evidence
8
Q
Do you need a body to charge someone for murder?
A
No.
Again would require circumstantial evidence.
9
Q
Can an organisation (as opposed to a human being) be convicted of murder or manslaughter?
A
No. Killing must be done by a human being. Cannot be charged as a principal or party because it is not possible for the organisation to serve the offences mandatory life sentence.
10
Q
What are the 5 ways set out in s160(2) that defines what constitutes culpable homicide?
A
- an unlawful act
- an omission without lawful excuse to perform or observe any legal duty
- an unlawful act and or omission to perform a legal duty
- using threats, fear of violence or deception to make the victim do an act that leads to their death
- wilfully frightening a child under 16 or a sick person
11
Q
What is the intent for charging an offender with murder?
A
- intended to cause death OR
- knew that death was likely to ensue OR
- was reckless that death was likely to ensue
12
Q
What are the two types of man slaughter?
A
Voluntary and involuntary
13
Q
What is voluntary manslaughter?
A
Mitigating circumstances reduce what would otherwise be murder to manslaughter (suicide pact)
14
Q
What is involuntary manslaughter?
A
Covers those types of unlawful killing in which the death is caused by an unlawful act or gross negligence. There has been no intention to kill or cause GBH.
15
Q
What is the four point test for proving an unlawful act for manslaughter?
A
- the defendant must intentionally do an act
- the act must be unlawful
- the act must be dangerous
- the act must cause death
16
Q
What negligence must be proved for manslaughter?
A
- very high degree of negligence
- gross negligence
17
Q
What are associated murder charges?
A
- attempted murder
- counselling or attempting to procure murder
- conspiracy to murder
- accessory after the fact to murder
18
Q
When considering what charge to press in a case where someone has been killed in a sudden fight, what issues do you need to consider?
A
- self defence
- the requisite mens rea for a murder/manslaughter charge
19
Q
What are the elements for infanticide?
A
- killing of the child under 10 years must be in a manner that would amount to culpable homicide
- mothers mind was disturbed as a consequence of birth of that child or another child
20
Q
Who decides on the mother’s state of mind for a charge of infanticide?
A
Jury
21
Q
What is a vulnerable adult?
A
A person unable by a reason of detention, age, sickness, mental impairment or any other cause to withdraw himself or herself from the care or charge of another person
22
Q
What age of a child is an offence to abandon?
A
6 years
23
Q
Two rules for injury followed by treatment of injury is fatal
A
- death resulting from any normal treatment employed to deal with a felonious injury may be regarded as caused by the injury
- in other circumstances it is a question of fact to establish a causal connection between the death and the felonious injury
24
Q
What is Novas Acus Interviens?
A
(Latin: a new intervening act) an intervening act that breaks the chain of causation
25
For a dying declaration statement to be considered admissible evidence what must you show?
N - the nature of the statement
A - circumstances relating to the accuracy of the observation of the statement
R - the circumstances relating to the making of the statement
C - the contents of the statement
V - circumstances relating to the veracity of the person making the statement
26
Defence for children under 10
Absolute defence. No person shall be convicted of an offence by reasons of any act done or omitted by him when under the age of 10 years
27
When can a child over 10 but under 14 be convicted of an offence?
When they knew the omission or act was wrong or that it was contrary to law
28
Who do child offenders under 14 get referred to?
Care and Protection Co-Ordinator Oranga Tamariki
29
Process for charging a person aged 10-13 for murder/manslaughter?
- charges filed in district court
- first appearance at youth court
- transferred to high court for trial and sentencing
30
If a defendant poses a risk to the community what procedure do they become a subject of?
“Restricted patient” order
31
What two requirements must be satisfied for requiring a compulsory treatment?
Compulsory care of the offender either
- in offenders interest
- reasons of public safety
32
What is the verdict for insanity?
Not guilty on account of insanity
33
What are the M’Naghten’s rules?
Suffering 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
34
Definition of a “disease of the mind”
A term which defies precise definition and which can comprehend mental derangement in the widest sense
35
What is not included as a “disease of the mind”?
Temporary mental disorders caused by external factors
- blow to the head
- drugs
- alcohol
- anaesthetic
- hypnotism
36
What question is a disease of the mind?
It is not a medical question but a legal one
37
Other ways the court can deal with an insane person?
- detain
- release
- alternative orders
38
Defence for automatism?
May depend on whether the state of automatism is involuntary or self-induced and whether intent is present
39
Definition of automatism
Automatism can be best described as a state of total blackout, during which a person is not conscious of their actions and not in control of them
40
Ways automatism may be caused?
- brain tumour
- epilepsy
- arteriosclerosis (interference with the supply of blood to the brain)
- consumption of alcohol or drugs
41
What are the two types of automatism with examples?
Sane - sleepwalking, blow to the head or affected by drugs or alcohol
Insane - the result of a mental disease
42
What does protected from criminal responsibility mean?
Not guilty of an offence but civil liability may still arise
43
Intoxication defences
- causes a disease of the mind
- if intent is required for the offence and the drunkenness is such that the defendant can plead a lack of intent to commit the offence
- causes a state of automatism
44
What are the subsections of insanity under s23(2) Crimes Act 1961?
(a) understanding the nature and quality of the act or omission
(b) knowing that the act or omission was morally wrong having regard to the commonly accepted standards
45
Defence through compulsion requirements:
- threatened to be killed or gbh
- genuinely believed the threat
- not a party to any association or conspiracy
46
What subjective test for degree of force is permitted?
- what are the circumstances that the defendant genuinely believed existed (whether or not it is a mistaken belief)
- do you accept that the defendant genuinely believed those facts?
- is the force reasonable in the circumstances believed to exist?
47
definition of alibi
Plea in a criminal charge of having been elsewhere at the material time: the fact of being elsewhere
48
When must the defendant provide written notice of alibi to prosecution under s20?
Must be given 10 working days after the defendant is given notice
49
What must be in the notice from the defendant? (Alibi)
Witnesses
- name
- address
- any other matter known that might be of material assistance in finding that witness
50
When can s20 notice be given to the defendant?
- if defendant pleads NG
- if the defendant is a CYP, when they make first appearance in youth court
51
Steps for interviewing an alibi witness:
- advise defence of the interview and give them reasonable opportunity to be present
- if defendant is not represented, endeavour that the witness is interviewed in the presence of an independent person, not police
- make a signed statement copy available to defence through prosecutor. Any information that reflects the credibility of alibi witness can be withheld
52
What must defence do if they intend on bringing an expert witness to trial?
- provide any brief of evidence or any report provided by that witness or
- if that brief is unavailable, a summary of the evidence to be given and the conclusions of any report
- must be disclosed at least 10 working days before the trial
53
Explain entrapment
Entrapment occurs when an agent of an enforcement body deliberately causes a person to commit an offence so that person can be prosecuted
54
Explain the defence of entrapment
Entrapment is rejected as a defence and instead the judge will rule on the fairness or unfairness of the evidence
55
Evidence required for an alibi?
Time and place
56
When is there a defence through consent?
A defence of consent requires that the act that is consented to is understood and that consent is given voluntarily
57
What people are considered unable to give consent?
- a child
- unable to rationally understand the implications of their defence
- subject to force, threats of force or fraud
58
What actions do not allow for a defence of consent?
- aiding suicide
- criminal actions
- injury likely to cause death
- bodily harm likely to cause a breach of the peace
- indecency offences
- placing someone in a situation where they are at risk of death or bodily harm
59
What is the definition of an unlawful act?
Means a breach of any act, regulation, rule or bylaw
60
In common law, allegations of culpable homicide have been supported where the offender has caused death, name 4 of the examples
- throwing a large piece of concrete Fromo motorway over ridge into the path of an approaching car
- committing arson
- giving a child an excessive amount of alcohol to drink
- placing hot cinders and straw on a drunk person to frighten them
- supply heroin to a person who subsequently dies from overdose
- conducting an illegal abortion where the mother dies
61
What are examples of omissions to perform a legal duty?
- providing the necessaries and protect from injury
- providing the necessaries and protect from injury 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
62
What are examples of culpable homicide caused by actions prompted by threats, fear of violence or deception?
- jumps or falls out of a window and dies because they think they are going to be assaulted
- jumps into river to escape attack and drowns
- who has been assaulted and believes their life is in danger, jumps from a train and is killed
63
In general, no one is criminally responsible for the killing of another by any influence of the mind. What are the exceptions to this rule?
- wilfully frightening a child under 16 years of age
- wilfully frightening a sick person (mentally or physically)
64
Liability for attempts:
- everyone who
- having intent to commit an offence
- does or omits an act for the purpose of accomplishing his or her object
- is guilty of an attempt to commit the offence intended
- whether in the circumstances it was possible to commit the offence or not
65
Difference between counselling or attempting to procure murder (s174) and conspiracy to murder (s175)?
- counselling/attempting to procure murder requires that the offence is to be committed in NZ, whereas conspiracy to murder, the murder can take place in NZ or elsewhere
- counselling/attempting to procure murder only applies if the murder is not in fact committed, whereas conspiracy to murder applies regardless of whether murder is committed or not
66
What are the duties of parents or guardians?
- to provide that child with necessaries
- to take reasonable steps to protect that child from injury
67
What is intent for concealing dead body of a child?
Must be done with intent of concealment if fact of birth
68
What is the penalty for attempted murder?
Term not exceeding 14 years
69
Define R v Tarei
To withdraw life support does not cause death but removes the possibility of extending the persons life through artificial means
70
A question of law relation to whether the condition is a disease of the mind is answered by whom?
The judge
71
What the accused’s state of mind was at the time of the offence is a question decided by whom?
The jury
72
What is the burden of proof for insanity?
Balance of probabilities
73
What is the relevant age of the person who is employed?
Under the age of 16 years
74
Where a charge of infanticide is laid, who decides on the mother’s state of mind?
The jury
75
What is the culpability of persons involved in a suicide pact?
Any survivor of a suicide pact is guilty of being a party to a death
76
How do NZ courts deal with a defence of automatism arising out of taking alcohol and/or drugs?
Likely to disallow the defence where the state of mind is obviously self-induced, the person is blameworthy and the consequences could have been expected
77
What was held in R v Ranger?
Proximity is decided by the judge
78
What is the definition of the period “a year and a day” as outlined in section 162(2) Crimes Act 1961?
Death must be within a year and a day from the time the last unlawful act or omission took place
79
What is a strict liability offence?
Any offence that does not require intent is called a strict liability and the only way a defendant can escape liability for such an offence is so prove a total absence of fault
80
Define legal duty
Duties imposed by statute or common law
81
What was held in Murray Wright Ltd?
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
82
What was held in R v Myatt?
(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
83
What was held in R v Tomars? (Threats, fear of violence and deception)
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 that 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?
4. Did these foreseeable actions of the victim contribute in a significant way to his death?
84
R v Horry (no body)
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 cognent and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for
85
Cameron v R (Recklessness)
Recklessness is established if:
a) the defendant recognised that there was a real possibility that
i) his or her 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
86
R v Piri
Recklessness here 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 recognised a “real or substantial” risk that the death would be caused by
87
R v Desmond
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.
88
R v Murphy
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 case of attempted murder it is necessary for the crown to establish an actual intent to kill
89
R v Harpur
The court may have regard to the conduct viewed cumulatively up to the point when the conduct in questions stops. The defendants conduct may be considered in its entirety. Considering how much remains to be done is always relevant though not determinative.
90
R v Mane
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 actual Rey’s of the alleged criminal conduct was wholly completed before the offence of homicide was completed.
91
R v Blaue
Those who use violence must take their victims as they find them.
92
R v Forrest and Forrest
The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victims age.
93
R v Cottle (Burden of Proof)
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.
94
R v Clark (Burden of Proof)
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 which in this case shows that the accused did not and had been unable to know his act was morally wrong.
95
R v Codere
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 or his knowledge of the moral quality of the act. Thus a person who is so deluded that he cuts a woman’s throat believing he is cutting a loaf of bread would not know the nature and quality of his act.
96
R v Cottle (actions without conscious volition)
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.
97
R v Joyce
The Court of Appeal decided that the compulsion must be made by a person who is present when the offence is committed.
98
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.
