Homicide Flashcards
1
Q
Three types of homicides
A
Murder, manslaughter and infanticide
2
Q
Before a homicide can become a charge what must be proved
A
That the killing was blameworthy or culpable
3
Q
The critical factors to consider for a charge of murder are whether the person intended to
A
Kill the other person or
Cause bodily injury that the offender knew was likely to cause death
4
Q
If an intent to kill a person cannot be established then the appropriate charge would be
A
Manslaughter
5
Q
The burden of proving the offenders intent lies with the
A
Prosecution
6
Q
The survivor of a suicide pact is only liable to be charged with
A
Manslaughter
7
Q
Homicide defined.
Section 158 CA 1961
A
Homicide is the killing of a human being by another directly or indirectly, by any means whatsoever
8
Q
Homicide must be culpable to be an offence
A
In cases of manslaughter a company can be convicted as a party to the offence 66(1)
9
Q
An organisation cannot be convicted of murder either as a principal or party to the offence why?
A
This is because the offence carries a mandatory life sentence
R v Murray Wright LTD
10
Q
R v Murray Wright LTD
A
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.
11
Q
Section 159 defines when a child becomes a human being and is therefore capable of being murdered
A
159(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.
12
Q
159(2)
The killing of such child is homicide if it dies in consequence of injuries received before, during or after birth
A
A
13
Q
Culpable homicide means
A
The killing is blameworthy. It includes murder manslaughter or infanticide
14
Q
Section 160(2) defines what constitutes culpable homicide
A
160(2) CA61 - culpable homicide
(a) by an unlawful act
(b) by an omission without lawful cause 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
15
Q
Define an unlawful act
A
Any breach of any act, regulation, rule orbylaw
16
Q
R v Myatt 1991 leading case law for unlawful act
A
It must be an act likely to do harm to the deceased or to some class of persons of whom he was one.
17
Q
R v lee. He act must be objectively
A
Dangerous
18
Q
Unlawful act must contain proof of all the elements including men’s Rea and done without lawful justification or excuse
A
No self defence if an assault is involved
19
Q
In common law allegation culpable homicide have been supported where the offender has caused death by?
A
- committing arson
- giving a child excessive amounts of alcohol to drink
- placing hot cinders and straw on a drunk guy to frighten them
- supplying heroine to a person who dies from an overdose
- throwing concrete from motorway over bridge into path of oncoming vehicle
- conducting an illegal abortion where mother dies
20
Q
Omission to perform legal duty
A
Where nothing is done where there is a legal duty to act
21
Q
Legal duty refers to those duties imposed by statue or common law including uncodified common law. Those duties include
A
- provide the necessaries and protect from injury
- provide necessaries and protect from injury to your charges 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.
22
Q
Omission of legal duties can amount to homicide
A
For the requisite causal connection it seems that it must appear that 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
23
Q
Unlawful acts and omissions of duty example
A
A person drives a car so recklessly that he kills someone is both an unlawful act (reckless driving) and an omission to observe your duty to take precautions when in charge of a dangerous thing (car)
24
Q
Threats, fear of violence and deception to do an act that results in the victims death. What must you prove
A
You must prove that the fear of violence was well founded
25
R v Tomars. Formula for threats, fear of violence
- was deceased threatened by, in fear of or 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 defendant's position at the time could reasonably have foreseen the consequences.
- did these foreseeable actions of the victim contribute in a significant way to his death.
26
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 a river and drowns to escape attack
- who has been assaulted and believes their life is in danger, jumps from a train and is killed.
27
Frightening a child or sick person
Wilfully frightening is regarded as intending to frighten or at least be reckless to this
28
To establish death you must prove that
-
29
If you charge under 167 (murder) you must show the following, the defendant ?
- intended to cause death or
- knew that death was likely to ensue, or
- was reckless that death would ensue
30
To show the defendants state of mind for 167 you must establish that the defendant
- 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
31
R v piri - recklessness involves a
Conscious, deliberate, risk taking. The degree of risk of death foreseen by the accused under 167(b) or (d) must be more than negligible or remote.
The defendant must recognise a real or substantial risk that death would be caused
32
Killing in pursuit of an unlawful object
167(d)
R v Desmond
Not only must the objective be unlawful but also the accused must know that his actions is likely to cause death
33
Murder defined
Section 167 - 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, means to cause bodily injury to one person and by accident kills another, though he does not mean to hurt that 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, although he didn't want to hurt anyone
34
Murder defined
Section 168(a) - further definition of murder
168(1)(a) - if he means to cause GBH for the purpose of facilitating the commission of any offences mentioned in sub 2 or facilitating the flight or avoiding the detection of the offender upon the comm or attempted comm thereof or resisting lawful arrest of any offence and death ensues from such injury
35
Murder defined
Section 168(b) - further definition of murder
If he administers any stupefying or overpowering thing for any purpose aforesaid and death ensues from the effects
36
Murder defined
Section 168(c) - further definition of murder
If he by any means wilfully stops the breath of any person for any of the purposes above and death ensues from such stopping of breath
37
R v Desmond - unlawful object
It must be shown that his knowledge accompanied the act causing death
38
Pantries to murder - joint responsibility
It must be shown that 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 168 (extended definition of murder)
39
168 extended definition of murder. Short hand
168(1)(a) - grievous bodily injury
168(1)(b) - administer or stupefying
168(1)(c) - wilfully stopping breath
40
Section 172 punishment of murder
172(1) liable to life imprisonment.
41
Section 102 presumption in favour of ire imprisonment
```
Section 102(1)
An offender who is convicted of murder must be sentenced to life imprisonment unless, given the circumstances and the offender, a sentence of imprisonment for life would be manifestly unjust
```
42
Section 102(2) court doesn't impose life sentence
It must give written reasons for not doing so
43
Voluntary manslaughter
Mitigating circumstances such as a Suicide pact, reduce what would be murder to manslaughter even though the defendant intended to kill or do bodily harm.
44
Involuntary manslaughter
Covers unlawful killings in which the death is caused by an unlawful act or gross negligence
45
Manslaughter by unlawful act
Newbury and jones four point test
- the defendant must intentionally do an act
- the act must be unlawful
- the act must be dangerous
- the act must cause death
46
Manslaughter by negligence, is negligence while using
- trains, factory machinery, mines, motor vehicles, ships or weapons or administering medical treatment.
47
Gross negligence- 150A (2) - major departure from standard of care
A person is responsible only if, in the circumstances, the omission or unlawful act is a major departure from the standard of care expected of a reasonable person to whom that legal duty applies or who performs that unlawful act
48
The test for gross negligence and a departure of care is
An objective test
49
Section 177 - punishment of manslaughter
Liable to life imprisonment - judge, depending on circumstances may impose a fine to life imprisonment.
50
When two or more people are to be convicted of culpable homicide under section 168 you do noted to prove the secondary persons knew that death was a probable consequence of their unlawful act, just that they knew it was a probable the principle might do an act that, if death resulted, would bring their conduct within the terms of 168
A
51
Infanticide - sec 178(1)
Where a women causes the death of a child of hers under age of 10 in a manner that amounts to culpable homicide because of mental issues she should not be held fully responsible, she is guilty of infanticide
Liable to imprisonment not exceeding 3 years
52
Voluntary manslaughter covers mitigating circumstances that reduce what would otherwise be murder to manslaughter even though the intent to kill was present
Involuntary manslaughter covers those types of unlawful killings in which death is caused by criminal negligence. There is no intention to kill or do bodily injury
53
For infanticide the killing of the child (under 10) must be in a manner that would amount to culpable homicide.
What must you also prove
That the mothers mind was disturbed as a consequence of the birth. The term of consequence includes the term of lactation.
54
Legal duties are those imposed by
Statue and common law
55
A vulnerable adult means
A person unable by reason of detention, age, sickness, mental impairment or any other cause to withdraw him or herself from the care or charge of another person.
56
Vulnerability may be short lived or temporary. Whether an adult is vulnerable is a matter for objective determination and not that persons subjective determination.
A
57
Duty to protect from injury is to take reasonable
Steps to protect a vulnerable adult or child from injury
58
It is a criminal act to abandoned a child under
Six years of age - section 154
7 years imprisonment
59
Preventable death - r v blaue
Those who use violence must take their victims as they find them.
60
When treatment of injury is fatal - this covers where a dangerous person injures the victim and as a result, treatment is administered to the victim which is the immediate cause of their death. The person who caused the initial injury is liable for it and its consequences
The degree of liability will rely on that persons men's Rea at the time the injury was inflicted
61
Section 165 and 166 the injury must remain a substantial cause of the death which grew from the subsequent effects and risks
A
62
Suicide - sec 179 - aiding and abetting suicide
Everyone is liable to imprisonment not exceeding 14 years who
- incites, councils, procures any person to commit suicide if that person commits, attempts to commit suicide in consequence thereof or
- aids and abets any person in the commission of suicide
63
Sec 180 suicide pact
(1) everyone who in pursuance of a suicide pact kills any other person is guilty of manslaughter and not murder, and is liable accordingly
(2) where s2 or more persons enter into a suicide pact and in pursuance of it one or more of them kills themselves, any survivor is guilty of being a party to a death u der a suicide pact contrary to this subsection and is liable to imprisonment for a term not exceeding 5 years but shall not be convicted of an offence against sec 179.
64
The term suicide pact means sect 180(3)
A common agreement between 2 or more persons having for its object the death of all of them. Whether or not each is to take his own life, but nothing done by a person who enters into a suicide pact shall be treated as done by him in pursuance of the pact unless it is done while he has the settled intention of dying in pursuance of the pact.
65
Aiding and abetting suicide 179(b)
There is a requirement to do something in one of the specified ways ( councils, invites, procures, aids and abets) in order to assist suicide
66
Culpability of aiding and abetting suicide 179
It's an offence for person A to assist person B in committing suicide without person A having any intention to commit suicide themselves.
14 years imprisonment for aiding and abetting
67
Section 180(2) 2 or more enter into a suicide pact.
Party to a death by suicide pact
This is if they kill themselves and not each other but one survives
Eg: If they both self administer a lethal dose but one survives
5 years imprisonment
68
Concealment of a body of a child sec 181
Everyone is liable to imprisonment for 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.
69
Sec 181 disposing of a child after death must be done with the intent to conceal the body
A
70
General admissibility of hearsay statements section 18 evidence act 2006
A statement from a person who may die before the hearing can be presented as evidence in court if they are dead providing reasonable assurances that the statement is reliable.
71
For a statement to be admissible as evidence the court must be satisfied that both the content and the person who made it are reliable.
Circumstances to consider are
- 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 statement
- circumstances relating to the accuracy of the observation of the person
72
Part 2 - defences
Matters of justification and excuse are contained in
Part 3 of the crimes act 1961
73
Under section 20 CA 61 all common law defences are retained so long as they are not inconsistent with the CA or any other enactment
A
74
Definition - justified means
That they are not guilty of an offence and is not liable civilly.
75
Define - protected from criminal responsibility
Means the person is not guilty of an offence but civil liability may still arise
76
Section 21. Defence for child under 10
No person shall be convicted of an offence by reason of any act done or omitted by them if they are under 10 years of age
77
Sec 22 - child between 10 - 14
No person shall be convicted of an offence by reason of any act done or omitted by them if they are under 10 years of age but under 14 unless they knew the act was wrong or contrary to law
78
Deciding the correct age
The commencement of the relevant anniversary of the date of birth
79
A child u der 10 years has an absolute defence to any charge
You still need to establish whether they are guilty or not
80
For children between 10 - 13 years the onus is on the prosecution to prove they had the correct
Men's Rea and actus Rea (R v Brooks)
81
Proving age best option for prosecution.
R v forest and forest
The best evidence possible in the circumstances should be adduced by the prosecution in proof of victims age
82
Defences involving state of mind.
Insanity sec 23(1)
Everyone shall be presumed to be sane at the time of doing or omitting any act u til the contrary is proved
83
Defences involving state of mind.
Sec 23(2) no person
No person shall be convicted of an offence by reason of an act or omission by him when labouring under a natural imbecility or disease of the mind to such an extent as to render him incapable
- (a) of understanding the nature and quality of the act or omission or
- (b) of knowing that thenact or omission was morally wrong, having regard to the commonly accepted standards of right or wrong
84
Defences involving state of mind.
Insanity is a matter for the defence to raise and the prosecution is prohibited from addicting evidence of insanity even if the accused has sought acquittal because of insanity
A
85
Defences involving state of mind.
A judge may put the issue of insanity to the jury
Sec 20(4) criminal procedure act
86
Defences involving state of mind.
When there is clear evidence of insanity the judge may bring it to the attention of the jury even if the defence does not raise the issue
A
87
Defences involving state of mind.
Burden of insanity
It is up to the defence to prove that the defendant is insane
88
Defences involving state of mind.
Defendant is not required to prove insanity beyond reasonable doubt but to the satisfaction of the jury on the balance of probabilities
A
89
Defences involving state of mind.
Defendant can plead insanity to any charge punishable by imprisonment.
A
90
Defences involving state of mind.
Insanity is a legal question not a medical one however it is usually answered by a team of medical experts
A
91
Defences involving state of mind.
M'naughton rules
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
92
Defences involving state of mind.
Disease of the mind
A term which defies precise definition and which can comprehend mental derangement in the wildest sense
93
Defences involving state of mind.
A disease of the mind does not include a temporary mental disorder caused by some factor external to the defendant such as ?
- a blow to the head
- the absorption of drugs, alcohol
- an anaesthetic
- hypnotism.
94
Defences involving state of mind.
Whether the condition is a disease of the mind is a question of law and for the judge.
A
95
Defences involving state of mind.
Nature and quality of the act means
The physical character of the act
96
Defences involving state of mind.
Morally wrong
If someone cannot understand that their acts were morally wrong then they lack rational understanding
97
Defences involving state of mind.
Sentencing
A court must decide whether to detain release or apply alternative orders to the person. They must consider all the circumstances and may hear further medical evidence to determine the safety and public interest
98
Defences involving state of mind.
In cases of serious homicides the public interest to detain the offender may override other factors
A
99
AUTOMATISM.
Defined as a state of total blackout during which a person is not conscious of their actions and not in control of them
A
100
AUTOMATISM.
Rv cottle
Doing something without knowledge of it or memory afterwards of having done it.
101
AUTOMATISM.
Culpability of automatism
Actions performed in a state of automatism are involuntary and the common law rule is that there is no liability
102
AUTOMATISM.
Causes of automatism.
- concussion
- sleepwalking
- brain tumour
- epilepsy
- consumption of alcohol or drugs
103
AUTOMATISM.
In relation to drugs and alcohol. Convincing evidence is required to support the automatism.
Using automatism statements for alcohol and drugs are said to be - one of the first effigies of a guilty conscience and a popular excuse.
104
AUTOMATISM.
Two types of automatism.
- sane automatism - the result of sleepwalking or concussion
| - insane automatism - the result of a mental disease
105
AUTOMATISM.
Action without conscious volition
A
106
AUTOMATISM.
A successful attempt of automatism negates intent (men's Rea) and responsibility for the actus Rea which leads to
An unqualified acquittal
107
AUTOMATISM.
In cases of strict liability (where no men's Rea need be proved by the prosecution) the defence must establish a defence on
The balance of probabilities
108
AUTOMATISM.
Criminal intent for certain offences only
No intent
- drink driving
Intent needed
- any offence that has intent as an element of the offence
109
AUTOMATISM.
NZ courts are likely to disallow the defence of automatism where the state of mind is obviously self induced, the person is blameworthy and the consequences could have been expected
A
110
INTOXICATION
For intoxication to succeed as a defence, all you need to establish is reasonable doubt about the defendant's state of mind at the time of the offence
They did not have the proper state of mind to be guilty
111
Compulsion or duress
Compulsion
To do something against their will.
112
Defence of compulsion
Having been compelled to commit an offence by threats of immediate death or gbh to themselves or another person present when offence is committed.
The person must note a party or enter into a conspiracy to be compelled
113
Compulsion
The threats and gbh must be
Operating on their mind at the time of the act and be so grave that a reasonable person placed in same situation may well do the same.
114
Compulsion
Threats of death or gbh must be immediate and from a person present at the scene
A
115
Compulsion
R v Joyce
Compulsion must be made by a person who is present when the offence is committed
116
Section 48. Self defence
Everyone 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
117
Section 48 requires both a subjective and objective test
Subjective - a view of the circumstances as believed by the defendant to be
Objective - the degree of force used (was it reasonable)
118
Degree of force used - sec 48
Subjective Criteria
- what are the circumstances that the defendant genuinely believes exists
- do you accept that the defendant genuinely believes those facts
- is the force used reasonable in the circumstances believed to exist
119
Alibi witness
If interviewing an alibi you must do the following 3 things
- inform defence council of time and date so they have a chance to attend
- ensure they are interviewed in presence of some independent person
- provide defence with signed copy of statement
120
Alibi means
Being elsewhere at the material time
121
People who can't give their consent are
- a child
- unable to rationally understand the implications of their defence
- subject to forge or fraud
