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DDP Modules > Homicide and Law Defences > Flashcards

Homicide and Law Defences Flashcards

1
Q

Must Know Case Law
(Part 1)

A
  • Murray Wright Ltd
  • R v Tomars
  • R v Myatt
  • R v Horry
  • Cameron v R
  • R v Piri
  • R v Desmond
  • R v Murphy
  • R v Harpur
  • R v Mane
  • R v Blaue
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2
Q

What are the critical factors for determining Murder VS Manslaughter?

A

Whether the offender intended to

  • kill the person, or
  • cause bodily injury that the offender knew was likely to cause death
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3
Q

Ascertaining whether an offence has been committed (flow chart)

A

A person dies

  • Was their death caused by another human being? No = No offence
  • Were the actions of the other person culpable? No = No offence
  • Was the outcome of their actions intentional or deliberate No = manslaughter, yes = Murder
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4
Q

Homicide
(define)

A

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

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5
Q

Homicide and companies

A
  • Manslaughter: an organization can be convicted as a party to the offence (section 66(1))
  • Murder: an organization cannot be convicted either as a principal offender or a party to the offence. This is because the offence carries a mandatory life sentence
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6
Q

Homicide and companies
(Case law)

A

Murray Wright Ltd

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7
Q

Murray Wright Ltd
(held)

A

Because the killing must be done by a human being, an organization (such as a hospital or food company) cannot be convicted as a principal offender.

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8
Q

Killing of a Child
Section 159
(define)

A

(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.

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9
Q

Culpable homicide
(Section 160 (1))

A

(1) Homicide may be culpable or not culpable.

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10
Q

Culpable homicide
(Section 160 (2))

A

(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
(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.

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11
Q

Culpable homicide
(Section 160 (3))

A

(3) Except as provided in section 178 of this Act, culpable homicide is either murder or manslaughter.

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12
Q

Culpable homicide
(Section 160 (4))

A

(4) Homicide that is not culpable is not an offence.

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13
Q

Unlawful Act
(define)

A

Means a breach of any Act, regulation, rule, or bylaw.

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14
Q

Unlawful Act
(case law)

A

R v Myatt

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15
Q

R v Myatt (held)

A

[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.

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16
Q

Additional commentary for unlawful act.

A
  • it must be objectively dangerous (would a reasonable person in the defendant’s shoes know the risk of harm existed)
  • “some harm” means “more than trivial harm”
  • must be done without lawful justification or reasonable excuse. For instance no defence such as self defence
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17
Q

Section 150A
(paraphrased)

A

Applies to any case where the unlawful act requires proof of negligence, or is a strict or absolute liability offence.

In such cases are only criminally responsible if the unlawful act is a major departure from the standard of care expected from a reasonable person.

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18
Q

Common law allegations of culpable homicide that have been supported

A

The offender caused death by:
- 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 a person who OD’d
- throwing a large piece of concrete from a motorway over bridge into the path of a car
- conducting an illegal abortion where the mother dies

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19
Q

Duties defined in the Crimes Act 1961
(ss 151 to 157)

A
  • provide the necessities and protect from injury when in charge of a vulnerable adult (151
  • provide the necessities and protect from injury as a parent or guardian (152)
  • provide necessaries as an employer of U16 (153)
  • use reasonable knowledge and skill when performing dangerous acts like surgery (155)
  • take precautions when in charge of dangerous things like machinery (156)
  • avoid omissions dangerous to life (157)
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20
Q

Culpable Homicide
Threats, fear of violence, and deception
(case law)

A

R v Tomars

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21
Q

R v Tomars (held)

A

Formulates the issue 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 possition at the time could have reasonably forseen the consequences?
4. Did these foreseeable actions of the victim contribute in a [significant] way to his death.

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22
Q

Culpable Homicide
Threats, fear of violence, and deception
(examples)

A
  • 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
  • Has been assaulted and believes their life is in danger, jumps from a train and is killed
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23
Q

Frightening a child or sick person.
What is “wilfully frightening”?

A

“Wilfully frightening” is regarded as “intending to frighten, or at least be reckless as to this”

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24
Q

Mens rea in Frightening a child or sick person.

A
  • intend to frighten or reckless to
  • aware of a real risk person U16 or sick
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25
Q

Killing by influence on the mind
(legislation)

A

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 or aforsead sick person.

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26
Q

Consent to death
Section 63, Crimes Act 1961

A

No one has a right to consent to the infliction of death upon himself or herself; and, if any person is killed, the fact that he or she gave any such consent shall not affect the criminal responsibility of any person who is party to the killing.

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27
Q

Death from lawful games or contests

A
  • usually non-culpable homicide
  • however if from an act likely to cause serious injury then manslaughter
28
Q

To establish death, you must prove the:

A
  • 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

29
Q

Where body is not located
(case law)

A

R v Horry

30
Q

R v Horry held

A

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.

31
Q

Justified
(define)

A

Justified, in relation to any person, means not guilty of an offence and not liable to any civil proceeding

32
Q

Examples of “justified” acts

A
  • homicide committed in self-defence
  • 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 anyone
33
Q

Murder defined
Section 167

A

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 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 aforsaid, means to cause such bodily injury as aforsaid 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 anyone.

34
Q

Further definition of murder
Section 168

A

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) He administers any stupefying or overpowering thing for any of the purposes aforsead, 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 aforsead, and death ensues from such stopping of breath

35
Q

Intent
(define)

A

A deliberate act
Intent to produce a specific result

36
Q

Deliberate act
(define)

A

“Intent” means the act or ommission must be done deliberately. The act or omission must be more than involuntary or accidental

37
Q

Intent to produce a result
(define)

A

The second type of intent is to produce a specific result. In these context result means “aim, object, or purpose”.

38
Q

Must proves for Murder under section 167(a)

A
  • intended to cause death, or
  • knew that death was likely to ensue, or
  • was reckless that death would ensure
39
Q

Recklessness
(case law)

A

Cameron v R

40
Q

Cameron v R held

A

Recklessness is established if:
(a) the defendant recognized 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

41
Q

Must prove for Murder under section 167(b)

A
  • intended to cause bodily injury to the deceased, and
  • knew the injury was likely to cause death, and
  • was reckless as to whether death ensued or not
42
Q

Recklessness for Murder
(case law)

A

R v Piri

43
Q

R v Piri held

A

Recklessness [here] involves a conscious, deliberate risk taking. The degree of risk of death forseen by the accused under s167(b) or (d) must be more than negligible or remote. The accused must recognize a “real or substantial risk” that death would be caused:

44
Q

Killing in pursuit of an unlawful object
(case law)

A

R v Desmond

45
Q

R v Desmond held

A

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

46
Q

Section 66(2) Parties to offences

A

Where 2 or more persons for a common intent to prosecute an 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

47
Q

Joint responsibility, must prove

A

the secondary party knew it was a probable consequence that the principal might do an act that would, if death ensued, bring their conduct within the terms of Section 168.

(not that death was a probable consequence of carrying out their primary purpose)

48
Q

Punishment of Murder
Section 172

A

(1) Every one who commits murder is liable to imprisonment for life.
(2) Subsection (1) is subject to section 102 of the Sentencing Act 2002

49
Q

Sentencing Act 2002
Section 102, Presumption in favour of life imprisonment for murder

A

(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.

50
Q

Sentencing Act 2002
Section 103
What is the minimum imprisonment?

A
  • Not less than 10 years.
  • must be the minimum to achieve holding to account, denouncing conduct, deterring others, protecting the community.
  • If above has no term would be sufficient for 1 or more of above, then life without parole
  • can only impose life without parole if over 18 at time of offence
51
Q

Sentencing Act 2002
Section 104
When is the minimum period over 17 years?

A

Unless manifestly unjust to do so, when:
(a) murder was committed to attempt to subvert the course of justice
(b) murder involved calculated or lengthy planning, including making arrangement to receive money etc
(c) the murder involved unlawful entry/presence in a dwelling place
(d) murder was committed in the course of another serious offence
(e) murder with a high level of brutality, cruelty, depravity, or callousness
(ea) the murder was part of terrorist act
(f) the deceased was a constable or prison officer acting in the course of his/her duty
(g) deceased was particularly vulnerable, because age, health, or any other factor
(h) if offender convicted of 2 or more counts of murder, whether or not from the same circumstances
(i) any other exceptional circumstances

52
Q

Attempts
Definition (1)

A
  • Everyone who,
  • Having an intent to commit an offence,
  • does or omits an act for the purpose of accomplishing his object
  • is guilty of an attempt to commit the offence
  • whether in the circumstances it was possible to commit the offence or not
53
Q

Attempts
Definition (2)

A

The question whether an act done or omitted with intent to commit an offence is or is not only preparation for the commission of that offence, and too remote to constitute an attempt to commit it, is a question of law

54
Q

Attempts
Definition (3)

A

An act done or omitted with intent to commit an offence may constitute an attempt if it is done immediately or proximately connected with the intended offence, whether or not there was any act unequivocally showing the intent to commit that offence.

55
Q

Attempts for Murder
(case law)

A

R v Murphy

56
Q

R v Murphy held

A

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 a case of attempted murder it is necessary for the Crown to establish an actual intent to kill:

57
Q

Sufficiently Proximate Attempt
(case law)

A

R v Harpur

58
Q

R v Harpur held

A

[The Court] may have regard to the conduct viewed cumulatively up to the point when the conduct in question stops… the defendant’s conduct [may] be considered in its entirety. Considering how much remains to be done… is always relevant, though not determinative.

59
Q

Test for proximity from Semester and Brookbanks

A
  • Has the offender done anything more that getting himself into a position from which he could embark on an actual attempt? Or
  • Has the offender actually commenced excecution; that is too say, has he taken a step in the actual offence itself?
60
Q

Punishment of attempted murder
section 173

A

14 years

61
Q

Counselling or attempting to procure murder
section 174

A

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

62
Q

Conspiracy to murder
section 175

A

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

(includes to cause the death of someone outside of NZ in circumstances that would be murder if done in NZ)

63
Q

Accessory after the fact to murder
section 176

A

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

64
Q

Accessory after the fact
(case law)

A

R v Mane

65
Q

R v Mane held

A

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.

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