Homicide Law 4.4

Question 1

51. A hearsay statement is admissible in any proceeding if:

Answer 1

(a) The circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
(b) Either—
(i) The maker of the statement is unavailable as a witness; or
(ii) The Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness

Question 2

52. What was held in R v Clancy?

Answer 2

“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 3

53. Define Automatism

Answer 3

Automatism can best be described as a state of total blackout, during which a person is not conscious of their actions and not in control of them.

Question 4

54. What is “Sane” and “Insane” Automatism?

Answer 4

Automatism may be quite different and distinct from insanity, although it may be due to a disease of the mind. Hence it is necessary to distinguish between:
Sane automatism - The result of somnambulism (sleepwalking), a blow to the head or the effects of drugs
Insane automatism - The result of a mental disease.

Question 5

55. What is the Courts view of entrapment?

Answer 5

In New Zealand the courts have rejected entrapment as a defence per se, preferring instead to rely on the discretion of the trial judge to exclude evidence that would operate unfairly against the accused.

Question 6

56. Outline the subjective and objective tests relating to section 48 of the Crimes Act 1961

Answer 6

Once the accused has decided that use of force was required

(a subjective view of the circumstances as the accused believed them),

Section 48 then introduces a test of reasonableness which involves an objective view as to the degree and manner of the force used

Question 7

57. What was held in Police v Lavelle?

Answer 7

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 person’s interest or willingness to so offend.

Question 8

58. What is the procedure when alibi witnesses are interviewed?

Answer 8

The O/C case should not interview an alibi witness unless the prosecutor requests them to do so. If an interview is requested, follow this procedure.
· Advise the defence counsel of the proposed interview and give them a reasonable opportunity to be present
· If the accused 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).

Question 9

59. If the Defendant intends to call an expert witness during proceedings, what must they disclose to the Prosecution?

Answer 9

· Any brief of evidence to be given or any report provided by that witness, or
· If that brief or any such report is not available, a summary of the evidence to be given and the conclusions of any report to be provided.
· This information must be disclosed at least 14 days before the date fixed for the defendants hearing or trial, or within any further time that the court may allow (s23(1))

Question 10

60. General rules regarding intoxication;

Answer 10

In the past intoxication was considered to be no defence to a criminal charge and, indeed, an aggravating rather than mitigating factor.

The general rule has been that intoxication may be a defence to the commission of an offence:

· Where the intoxication causes a disease of the mind so as to bring s23 (Insanity) of the Crimes Act 1961 into effect;

· If intent is required as an essential element of the offence and the drunkenness is such that the defence can plead a lack of intent to commit the offence;

· Where the intoxication causes a state of automatism (complete acquittal).

Question 11

61. Define Alibi;

Answer 11

“An alibi is the plea in a criminal charge of having been elsewhere at the material time: the fact of being elsewhere” (Chambers 20th Century Dictionary).

Question 12

62. Section 178, Infanticide

Answer 12

(1) Where a woman causes the death of any child of hers under the age of 10 years in a manner that amounts to culpable homicide,

and where at the time of the offence the balance of her mind was disturbed,

by reason of her not having fully recovered from the effect of giving birth to that or any other child,

or by reason of the effect of lactation, or by reason of any disorder consequent upon childbirth or lactation,

to such an extent that she should not be held fully responsible, she is guilty of infanticide, and not of murder or manslaughter,

and is liable to imprisonment for a term not exceeding 3 years

Question 13

63. A Hearsay statement is admissible in any proceeding if -

Answer 13

Section 18 General admissibility of hearsay (Evidence Act 2006)

(1) A hearsay statement is admissible in any proceeding if –
(a) The circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
(b) Either,
(i) The maker of the statement is unavailable as a witness; or
(ii) The judge considers that undue expense or delay would be caused if the maker of the statement were required as a witness

Question 14

64. Voluntary Manslaughter

Answer 14

Mitigating circumstances, such as a suicide pact, reduce what would otherwise be murder to manslaughter, even though the defendant may have intended to kill or cause grievous bodily harm.

Question 15

65. Involuntary Manslaughter

Answer 15

Covers those types of unlawful killing in which the death is caused by an unlawful act or gross negligence. In such cases there has been no intention to kill or to cause grievous bodily harm.
Manslaughter, then, includes culpable homicide that:
· Does not come within s167 or s168;
· Comes within ss167 and 168, but is reduced to manslaughter because the killing was a part of a suicide pact as defined in s180(3) of the Crimes Act 1961 (refer page 44).
The key difference between manslaughter and murder depends on the mental element that must be establish to support the charge.

Question 16

66. What is the subjective criteria for ‘Degree of force’ under Self Defence

Answer 16

The degree of force permitted is tested initially under the following subjective criteria:
o What are the circumstances that the defendant genuinely believes exist (whether or not it is a mistaken belief)?
o Do you accept that the defendant genuinely believes those facts?
o Is the force used reasonable in the circumstances believed to exist?

Question 17

67.state of mind for Section 167(b) Crimes Act 1961;

Answer 17

To show that the defendant’s state of mind meets the provisions of section 167(b), you must establish that the defendant;
o Intended to cause bodily injury to the deceased
o Knew the injury was likely to cause death
o Was reckless as to whether death ensued or not

Question 18

68. Sections 167 and 168 define the offence of Murder

Answer 18

167 Murder defined
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.

168 Further definition of murder

(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