Homicide

Question 1

The critical factors to consider for a charge of murder are whether the offender intended to:

Answer 1

 kill the person, or
 cause bodily injury that the offender knew was likely to cause death
If neither of these intentions can be proven, the most likely charge is manslaughter.

Question 2

You can charge an offender with manslaughter in any case where a person has been killed in a manner that does not amount to murder. For example

Answer 2

the offender may have failed to perform a legal duty (such as getting an ill or injured person medical treatment) or may have acted unlawfully but not
envisaged the possibility of death occurring (for example, driving while drunk and killing someone).

Question 3

158 - Homicide defined

Answer 3

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

Question 4

Homicide must be culpable to be an offence

Murray Wright Ltd - Case Law

Answer 4

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:

Question 5

Section 159 defines when a child becomes a human being, and is therefore capable of being murdered under section 158:

Answer 5

159 Killing of a child
(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 6

Culpable homicide means the killing is blameworthy. It includes murder, manslaughter or infanticide. Section 160(2) defines what constitutes culpable homicide:

Answer 6

160 Culpable homicide
(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.
(3) Except as provided in section 178 of this Act, culpable homicide is either murder or manslaughter.
(4) Homicide that is not culpable is not an offence.

Question 7

The term “unlawful act” is defined in the section 2 of the Crimes Act 1961 as follows:

Answer 7

Unlawful Act – means a breach of any Act, regulation, rule, or bylaw.

Question 8

The common law requires that the act must be

Answer 8

one that is likely to do harm or is inherently “dangerous’, as well as being unlawful The leading case which
confirms this is R v Myatt.

Question 9

R v Myatt

Answer 9

[Before a breach of any Act, regulation or bylaw would be an unlawful act under s 160 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.

Question 10

Section 150A applies to any case where the unlawful act requires proof of negligence, or is a strict or absolute liability offence. In such a case the person will only be criminally responsible if the unlawful act is a major departure from the standard of care expected from a reasonable person in the particular circumstances.
Examples
In common law, allegations of culpable homicide have been supported where the offender has caused death by:

Answer 10

 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 the deceased
 throwing a large piece of concrete from a motorway overbridge into the
path of an approaching car
 conducting an illegal abortion.

Question 11

Can culpable homicide be caused by an ommission

Answer 11

Culpable homicide includes any death caused by an omission, without lawful excuse, to perform or observe any legal duty
This covers cases where nothing is done when there is a legal duty to act, and certain cases of positive conduct accompanied by a failure to discharge a legal duty, in particular a duty of care. If death results from any such omission the defendant may be convicted of manslaughter, provided there was sufficient fault, or murder if the defendant had the requisite mens rea

Question 12

The expression “legal duty” refers to those duties imposed by statute or common law including uncodified common law duties:
Duties imposed by statute are mainly common law duties that have been embodied in statute. The Crimes Act 1961 defines duties to:

Answer 12

 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

Question 13

Threats, fear of violence and deception:

R v Tomars

Answer 13

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 14

Threats, fear, or deception can result in culpable homicide.
Examples
Examples of culpable homicide caused by actions prompted by threats, fear of violence or deception are when a person:

Answer 14

jumps or falls out of a window 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 15

Frightening a child or sick person:

Answer 15

Wilfully frightening” is regarded as “intending to frighten, or at least be reckless as to this”.
Wilfully” here will require that the offender intended to frighten, or is at least subjectively reckless as to the risk of that. Mens rea should be interpreted as applying to all the elements in s160(2)(e), so that the defendant
must at least have been aware of a real risk that the victim is under 16 or sick

Question 16

Legislation 163 Killing by influence on the mind

Answer 16

163 Killing by influence on the mind
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, except by
wilfully frightening any such child as aforesaid or a sick person.

Question 17

Example Killing by influence on the mind

Answer 17

A man took tests at a hospital for an ongoing stomach complaint. “For a joke”, a hospital employee sent him a letter saying he had terminal, inoperable cancer. If the man had, as a consequence, committed suicide, the
sender of the letter could be charged under s163.

Question 18

Consent to death

Answer 18

No one has the right to consent to being killed (s63). This means that, if someone is killed, the fact they gave their consent will not affect the criminal responsibility of anyone else involved with the killing.

Question 19

Death from lawful games or contests

Answer 19

In the case of lawful contests and games (such as boxing, wrestling, football and hockey) the death of a participant from injuries received during the game or contest is normally treated as non-culpable homicide. However, if a
contestant causes the death of another by an act that is likely to cause serious injury, they will be guilty of manslaughter

Question 20

Proof of death To establish the death, you must prove the:

Answer 20

 death occurred
 deceased is identified as the person who has been killed
 the killing is culpable.
Death can be proved by direct and/or circumstantial evidence.

Question 21

Where body is not located

R v Horry

Answer 21

Death should be provable 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.

Question 22

Exception of justification
(non-culpable homicide)
Note that some acts are “justified” even when they result in death. Section 2 provides that when an act is justified the perpetrator is exempt from both criminal and civil liability.
Examples of such acts include:

Answer 22

 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

Question 23

Section 162 sets out the time in which a death must occur in order to be seen as caused by another:

Answer 23

162 Death must be within a year and a day

(1) No one is criminally responsible for the killing of another unless the death takes place within a year and a day after the cause of death.
(2) The period of a year and a day shall be reckoned inclusive of the day on which the last unlawful act contributing to the cause of death took place.
(3) Where the cause of death is an omission to fulfil a legal duty, the period shall be reckoned inclusive of the day on which such omission ceased.
(4) Where death is in part caused by an unlawful act and in part by an omission, the period shall be reckoned inclusive of the day on which the last unlawful act took place or the omission ceased, whichever happened last.

Question 24

Culpable homicide is the

Answer 24

blameworthy killing of a person by another. The

three main types of culpable homicide are murder, manslaughter and infanticide.

Question 25

The critical distinction between murder and manslaughter is

Answer 25

is whether the offender intended to kill the deceased or to harm them in a way they knew might result in death.

Question 26

To establish death, you must prove the:

Answer 26

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

Question 27

For a death to be seen as caused by another, the death needs

Answer 27

needs to occur within a year and a day from the time the last unlawful act or omission occurred.

Question 28

Can an organisation (as opposed to a human being) be convicted of murder or manslaughter?

Answer 28

No. Because the killing must be done by a human being, an organisation cannot be convicted as the principal offender. Moreover, although an organisation can be convicted as a party to manslaughter, with murder an organisation cannot be convicted as either the principal
offender or a party to the offence because it is not possible for an organisation to serve the offence’s mandatory life sentence.

Question 29

Section 160 of the Crimes Act 1961 defines what constitutes culpable homicide. What are the five ways set out in subsection (2) of this section?

Answer 29

Under s160(2) of the Crimes Act 1961, culpable homicide consists of killing a person by:
 an unlawful act
 an omission without lawful excuse to perform or observe any legal duty
 an unlawful act and an 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 years of age or a sick person.

Question 30

What is the legal view of consent to death?

Answer 30

The law does not recognise the right of a person to consent to their being killed (s63 of the Crimes Act 1961). As a consequence, their consent does not affect the criminal responsibility of anyone else involved in the killing.

Question 31

Is a body required to prove the death of a person? Explain your answer with reference to case law R v Horry

Answer 31

No a body is not required to prove death of a person has occurred . Death should be provable 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. R v Horry

Question 32

Would you be charged with any offence if you fatally injured another player during a rugby match? If so, what might the charges be?

Answer 32

Normally you would not be charged with the killing of another player if they died from injuries you caused while playing football. However, you would be guilty of manslaughter if your actions were considered likely to cause serious injury, as you should have been aware of
this at the time and refrained from the action.

Question 33

Legislation

167 Murder defined

Answer 33

Culpable homicide is murder in each of the following cases:
(a) If the offender means to cause the death of the person killed:
(b) If the offender means to cause to the person killed any bodily injury that is known to
the offender to be likely to cause death, and is reckless whether death ensues or not:
(c) If the offender means to cause death, or, being so reckless as aforesaid, means to cause such 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:
(d) If the offender 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 any one.

Question 34

Legislation

Further definition of murder

Answer 34

(1) 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:
(a) If he means to cause grievous bodily injury for the purpose of facilitating the commission of any of the offences mentioned in subsection (2) of this section,
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:
(b) If he administers any stupefying or overpowering thing for any of the purposes aforesaid, and death ensues from the effects thereof:
(c) If he by any means wilfully stops the breath of any person for any of the purposes aforesaid, and death ensues from such stopping of breath.

Question 35

About intent

Answer 35

A person does something “intentionally” if they mean to do it; they desire a
specific result and act with the aim or purpose of achieving it.

Question 36

A person “intends to do an action (or to bring about some consequence) if he:

Answer 36

Wants to do that action (or to bring about that consequence); or Believes it is possible for him to achieve something he wants by doing that action (or by
bringing about that consequence); and (iii) Behaves as he does because of his desire in (i) or his belief in (ii)”.

Question 37

R v Mohan

Answer 37

Intent involves “a decision to bring about, in so far as it lies within the accused’s power, the commission of the offence …”

Question 38

R v Waaka

Answer 38

A “fleeting or passing thought” is not sufficient; there must be a “firm intent or a firm purpose to effect an act”.

Question 39

Recklessness - R v Harney

Answer 39

“[Recklessness involves] foresight of dangerous consequences that could well happen, together with an intention to continue the course of conduct regardless of
the risk.”

Question 40

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

Answer 40

 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 41

Murder committed in the execution of a common purpose

Answer 41

Sections 66(2) (parties to offences) and 168 (extended definition of murder) provide for the criminal responsibility of people who are in the course of
carrying out an unlawful purpose when one of them kills someone. 

66 Parties to offences
(2) Where 2 or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common
purpose.

Question 42

Punishment of murder

Section 172 sets out the sentence of an offender who is convicted of murder.

Answer 42

172 Punishment of murder

(1) Every one who commits murder is liable to imprisonment for life.

Question 43

Sentencing Act 2002

Section 102 of the Sentencing Act 2002 states:

Answer 43

102 Presumption in favour of life imprisonment for murder

(1) An offender who is convicted of murder must be sentenced to imprisonment for life unless, given the circumstances of the offence and the offender, a sentence of imprisonment for life would be manifestly unjust.
(2) If a court does not impose a sentence of imprisonment for life on an offender convicted of murder, it must give written reasons for not doing so.

Question 44

The test for proximity
Simester and Brookbanks (Principles of Criminal Law, 3rd, 224) suggests the following questions should be asked in determining the point at which an act of mere preparation may become an attempt:

Answer 44

 Has the offender done anything more than getting himself into a position from which he could embark on an actual attempt? or
 Has the offender actually commenced execution; that is to say, has he taken a step in the actual offence itself?

Question 45

Punishment of attempted murder

Answer 45

173 Attempt to murder

Every one who attempts to commit murder is liable to imprisonment for a term not exceeding 14 years.

Question 46

Counselling or attempting to procure murder

The offences of counselling or attempting to procure murder are detailed in s174.

Answer 46

174 Counselling or attempting to procure murder
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 47

Conspiracy to murder Section 175 deals with conspiracy to murder.

Answer 47

175 Conspiracy to murder

(1) Every one 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.
(2) For the purposes of this section, the expression To murder includes to cause the death of another person out of New Zealand in circumstances that would amount to murder if the act were committed in New Zealand.

Question 48

Accessory after the fact to murder`

The punishment for an accessory after the fact to murder is provided for in s176.

Answer 48

176 Accessory after the fact to murder

Every one is liable to imprisonment for a term not exceeding 7 years who is an accessory after the fact to murder

Question 49

Accessory after the fact to murder

R v Mane

Answer 49

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.