HOMICIDE LAW

Question 1

Define homicide as held in section 158 of the Crimes Act 1961

Answer 1

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

Question 2

Section 159(1) & (2) of the Crimes Act 1961 defines when a child becomes a human being and is therefore able to be murdered under section 158

Detail the provisions of each section 159(1) & (2)

Answer 2

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.

159(2):
the killing of such a child is homicide if it dies in consequence of injuries received before, during, or after birth.

Question 3

Outline culpable homicide under section 160(1) & (2) of the Crimes Act 1961.

Answer 3

160(1):
Homicide may be either culpable or not culpable.

160(2):
(a) by any 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 yrs or a sick person.

Question 4

What does R v Myatt state about an unlawful act in respect of section 160(2)(a) of the Crimes Act 1961?

Answer 4

Before a breach of any Act, regulation or bylaw would be an unlawful act under s160 for the purpose 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 5

Organisations can be charged with party to manslaughter, however cannot be charged with being a party or being a principal offender to murder as the organisation cannot serve the mandatory life sentence.

Given this, what is held in - Murray Wright Ltd

Answer 5

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 6

In common law, allegations of culpable homicide have been supported where the offenders have caused death by particular circumstances. Name four of these circumstances

Answer 6

1) committing arson
2) giving a child an excessive amount of alcohol to drink.
3) throwing a large piece of concrete from a bridge onto an approaching car.
4) conducting an illegal abortion.

Question 7

Explain what is meant by section 160(2)(b) of the Crimes Act 1961, an omission to perform a legal duty.

Answer 7

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 or murder.

Question 8

List four statutory legal duties in respect of the Crimes Act 1961.

Answer 8

1) provide the necessaries and protect from injury (s151)
2) provide necessaries as an employer (s153)
3) take precautions when in charge of dangerous things, such as machinery (s156)
4) Avoid omissions that will endanger life (s157)

Question 9

What is held in R v Tomars?

Answer 9

Formulates the issues in the following way:

1) was the deceased threatened by, in fear of, or deceived by the accused.
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 actions of the accused
4) did these foreseeable actions of the victim contribute in a significant way to his death

Question 10

In relation to section 160(2)(d) of the Crimes Act 1961, give two examples of culpable homicide which has been caused by the victims actions, prompted by threats or fear of violence.

Answer 10

1) jumps or falls out of a window because they think they are going to be assaulted.
2) jumps into a river to escape an attack and drowns.

Question 11

Define wilfully frightening.

Answer 11

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

Question 12

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?

Answer 12

1) Wilfully frightening a child under 16yrs of age

2) wilfully frightening a sick person (mentally or physically)

Question 13

Outline section 163 of the Crimes Act 1961

Answer 13

No one is criminally responsible for the killing of another by any influence on the mind alone, except by wifully frightening a child under the age of 16yrs 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 a sick person.

Question 14

To establish proof of death, in relation to homicide, you must prove three key elements, they are;

Answer 14

1) Death occurred
2) Deceased is identified as the person who has been killed
3) The killing is culpable

Question 15

Explain R v Horry and the concept where no body has been found.

Answer 15

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.

Note: allows for a charge of murder to be made even when a body has not been located.

Question 16

What is the concept of justification in regards to acts done resulting in homicide?

Provide two examples.

Answer 16

Section 2 provides that when an act is justified the perpetrator is exempt from both criminal and civil liability.

Examples of such acts include:

• Homicide committed in self defence (s48)
• Homicide committed to prevent suicide and serious injury to persons or property (s41)

Question 17

What is the concept that a death must be within a year and a day as held in section 162 of the Crimes Act 1961?

Answer 17

162(1)
No one is responsible for the killing of another unless the death takes place within a year and a day after the cause of death.

162(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.

The period

Question 18

What is the penalty for attempted murder?

Answer 18

A term of imprisonment not exceeding 14yrs

Question 19

What is held in R v Tarei?

Answer 19

Withdrawal of any form of life support system is not “treatment” under 166 of the Crimes Act 1961. To withdraw life support does not cause death but removes the possibility of extending the person’s life through artificial means.

Question 20

Outline section 181 of the Crimes Act 1961 (Concealing a dead body of a child)

Answer 20

Everyone is liable to imprisonment for a term not exceeding 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, during, or after birth.

Question 21

In which court does a youth facing a charge of murder or manslaughter appear?

Answer 21

Charges of murder and manslaughter will be heard in the High Court following the committal process in the Youth Court.

Question 22

A question of law relating to whether the condition is a disease of the mind is answered by whom?

Answer 22

The judge

Question 23

What the accused’s state of mind was at the time of the offence is a question decided by whom?

Answer 23

The jury

Question 24

What is held in R v Kamipeli?

Answer 24

It does not have to be shown that the defendant was incapable of forming the mens rea, merely that, because of their drunken state, they did not have the proper state of mind to be guilty.

Question 25

What is the burden of proof for insanity

Answer 25

The accused is not required to prove the defence of insanity beyond reasonable doubt, but to the satisfaction of the jury on the balance of probabilities.

Question 26

As held in section 153 of the Crimes Act 1961 (lawful duty of an employer to an employee), what is the relevant age of the person who is employed?

Answer 26

Criminally liable for any employee under the age of 16yrs

Question 27

Where a charge of infanticide is laid, who decides on the mothers state of mind?

Answer 27

The jury

Question 28

Pursuant to section 22(3) of the Criminal Disclosure Act 2008, the notice under subsection (1) must include;

Answer 28

The notice must include the name and address of the witness or, if the name and address is not known to the defendant when the notice is given, any matter known by the defendant that might be of material assistance in finding that witness.

Question 29

Before a conviction can be obtained for manslaughter, where one of the sections referred is section 150A(1) of the Crimes Act 1961, what must the prosecution prove?

Answer 29

A very high degree of negligence or gross negligence.

Question 30

Proximity is a question of law decided by whom?

Answer 30

The judge

Question 31

Written notice of an alibi is to be given by the defendant…..

Answer 31

Within 10 working days after the defendant is given notice under section 20 of the Criminal Disclosure Act 2008.

Question 32

What is held in R v Cox

Answer 32

Consent must be full, voluntary, free and informed. Freely and voluntarily given by a person in a position to form a rational judgement.

Question 33

As a general guideline, most offences within the Crimes Act 1961 will require an intent (mens rea) of some kind. Outline a defence that would therefore be generally available.

Answer 33

The defence of intoxication will be available to the defence to establish that the defendant did not have the required intent to carry out the offence.

Question 34

Provide an overview of the culpability of persons involved in suicide pacts

Answer 34

Any survivor of a suicide pact is guilty of being a party to a death ( if the death of another person within the pact ensues).

Question 35

Outline section 25 of the Crimes Act 1961, ignorance of the law.

Answer 35

The fact that an offender is ignorant of the law is not an excuse for any offence committed by him.

Question 36

Give two circumstances where culpable homicide is murder as defined in section 167 of the Crimes Act 1961

Answer 36

(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.

Question 37

Section 168(1)(a) of the Crimes Act 1961 refers to the term grievous bodily injury, what does this mean and give an example of such an injury

Answer 37

In subsection (3) grievous bodily injury means harm that is very serious, such as injury to a vital organ.

Example: to wilfully stop the breath of any person

Question 38

What is held in R v Harney

Answer 38

Recklessness means the conscious and deliberate taking of an unjustified risk. In New Zealand it involves proof that the consequences complained of could well happen together with an intention to continue the course of conduct regardless of risk.

Question 39

What is the required state of mind for section 167(b) of the Crimes Act 1961.

Answer 39

To show that the accused’s state of mind meets the provisions of s167(b) you must establish that the accused;

1) intended to cause bodily injury to the deceased
2) knew the injury was likely to cause death
3) Was reckless as to whether death ensued or not.

Question 40

Define attempts under section 72(1) of the Crimes Act 1961

Answer 40

Everyone who, having an intent to commit an offence, does or omit an act for the purpose of accomplishing his object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.

Question 41

Why is attempted murder one of the most difficult offences in the Crimes Act 1961 to prove beyond reasonable doubt?

Answer 41

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

Question 42

In the test for proximity, Simester and Brookbanks suggests the following questions should be asked in determining the point at which an act of mere preparation of committing a crime has become an attempt.

What are those two questions?

Answer 42

1) Has the offender done anything more that getting himself into a position from which he could embark on an actual attempt; or
2) Has the offender actually commenced execution, that is to say has he taken a step in the actual crime itself.

Question 43

List the difference between counselling or attempting to procure murder under s174, and conspiracy to murder under s175.

Answer 43

174:
Counselling or attempting to procure murder requires the offence to be committed in New Zealand, and only applies if the murder is not in fact committed.

175:
The murder can take place in New Zealand or elsewhere, and applies regardless of whether murder is committed or not.

Question 44

What are the ingredients to accessory after the fact to murder?

Answer 44

Knowing any person to be party to murder

Receives, comforts, or assists that person

Tampers with or actively suppress any evidence against that person.

In order to help him to escape after arrest or to avoid arrest or conviction.

Question 45

What is held in R v Mane

Answer 45

For a person to be an accessory the offence must be completed at the time of the criminal involvement. Once cannot be convicted of being an accessory after the fact to murder when the actus reus of the alleged criminal conduct was wholly completed before the offence of homicide was completed.

Question 46

Give an example when murder might be reduced to manslaughter even though the accused intended to kill or cause grievous bodily harm.

Voluntary manslaughter

Answer 46

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

Question 47

What is involuntary manslaughter?

Answer 47

Covers those types of unlawful killings in which the death is caused by an unlawful act or gross negligence. In such cases where there has been no intention to kill or to cause grievous bodily harm.

Question 48

What is held in R v Piri

Answer 48

Recklessness 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 the negligence or remote. The accused must recongise a real or substantial risk that death would be caused.

Question 49

Give thee examples of where culpable homicide is murder as defined in s168(1) of the Crimes Act 1961

Answer 49

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

Question 50

What is held in R v Desmond

Answer 50

Not only must the object by 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.

Question 51

What is held in R V Muphy

Answer 51

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.

Question 52

What is held in R v Harpur

Answer 52

The court may have regard for the conduct viewed cumulatively up to the point when the conduct in question stops. The defendants conduct may be considered in its entirety. Considering how much still remains to be done is always relevant though not not determanitive.

Question 53

What is the liability for Counselling or attempting to procure murder as held in s174 of the Crimes Act 1961?

Answer 53

Everyone who

incites, counsels, or attempts to procure any person to

murder another person in New Zealand

when that murder is not in fact committed

Question 54

What is the criminal liability for Conspiracy to murder as held in s175 of the Crimes Act 1961?

Answer 54

Everyone who

conspires or agrees

With any person

to murder any other person

whether the murder is to take place in New Zealand or elsewhere

Question 55

A person who is an accessory after the fact to murder would receive a term of imprisonment not exceeding….

Answer 55

7yrs

Question 56

State the ingredients of infanticide as held in section 178 of the Crimes Act 1961

Answer 56

Where a women 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 full recovered from the effect of giving birth to that or any other child,l or by reason of the effect of lactation, or by the reason of any disorder consequent upon child birth 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 57

Define “legal duty”

Answer 57

The expression “legal duty” refers to those duties imposed by statute or common law.

Question 58

What are the legal duties of a parent/guardian under section 152 of the Crimes Act 1961?

Answer 58

Everyone one who is a parent, or is in place of a parent, who has actual care or charge of a child under the age of 18 years is under a legal duty

(a) to provide that child with necessaries; and
(b) to take responsible steps to protect that child from injury

Question 59

What are the ingredients of section 154 of the Crimes Act 1961 - abandoning a child under 6

Answer 59

Everyone is liable to imprisonment for a term not exceeding 7 years who unlawfully abandons or exposes any child under the age of 6 yrs

Question 60

Define the term “suicide pact” - section 180(3) of the Crimes Act 1961

Answer 60

Suicide pact means a common agreement between two or more person having for its object the death of all of them, whether or not each is to take his own life.

Question 61

What is held in R v Blaue

Answer 61

Those who use violence must take their victims as they find them.

Question 62

A hearsay statement is admissible in any proceeding if

Answer 62

(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 of delay would be caused if the maker of the statement were required to be a witness.

Question 63

For a statement to be considered admissible under section 18(1) of the Evidence Act 2006 the court must be satisfied that both the content and the person who made it are reliable.

Circumstances to consider include

Answer 63

• the nature of the statement
• the contents of the statement
• the circumstance relating to the making of the statement
• circumstances relating to the veracity of the person making the statement
• circumstances relating to the accuracy of the observation of the person.

Question 64

Outline the culpability for children under 10 yrs old and children between 10 - 13 yrs old

Answer 64

Under 10:

A child under 10 has an “absolute defence” to any charge brought against them. Nevertheless, even though the child cannot be convicted, you still have to establish whether or not they are guilty

10 - 13 years

For children aged between 10 - 13 years inclusive, it must be shown that the child knew their act was wrong or contrary to law. If this knowledge cannot be shown, the child cannot be criminally liable for the offence.

Question 65

Discuss the case in R v Forrest & Forrest

Answer 65

Two men were charged with having sexual intercourse with a 14 year old girl. At trial the girl produced her certificate and gave evidence herself that she was the person named in the certificate. The men successfully appealed their convictions on the grounds that the Crown had not adequately proved the girls age.

R v Forrest & Forrest
The best evidence in the circumstances should be adduced by the prosecution in proof the victim’s age.

Question 66

What was held in R v Clancy?

Answer 66

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 67

What is the definition of justified?

Answer 67

In relation to any person “justified” means that the person is not guilty of an offence and is not liable civilly.

Question 68

What is the definition of insanty?

Answer 68

No person shall be convicted of an offence by reason of an act done or omitted by him when labouring under natural imbecility or disease of the mind to such an extent as to render him incapable

(a) of understanding the nature and the quality of the act or omission; or
(b) of knowing that the act or omission was morally wrong, having regard to the commonly accepted standards of right and wrong.

Question 69

What was held in R v Cottle (Burden of proof for insanity)

Answer 69

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.

Question 70

What is held in M’Naghten’s rules?

Answer 70

The M’Naghtens rules (or test) is frequently used to establish whether or not a defendant is insane. It is based on the person’s ability to think rationally, so that 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 the quality of their actions
• That what they were doing was wrong.

Question 71

Define automatism

Answer 71

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

Question 72

What is held in “R v Lipman (Caused by consumption of alcohol or drugs)

Answer 72

Where automatism is brought about by a voluntary intake of alcohol or drugs the court may be reluctant to accept that their actions were involuntary or that the offender lacked intention.

Question 73

What are the two types of automatism?

Answer 73

Sane automatism:
The result of somnambulism (sleepwalking), a blow to the head, or the effect of drugs

Insane automatism:
The result of a mental disease.

Question 74

What is a strict liability offence?

Answer 74

Any offence that does not require an intent ti called a strict liability offence and the only what a defendant can escape liability for such an offence is to prove a total absence of fault.

Question 75

How doe New Zealand Courts deal with a defence of automatism arising out of taking alcohol or drugs?

Answer 75

In New Zealand, the courts are likely to steer a middle course, allowing a defence of automatism arising out of taking alcohol and drugs, to offences of basic intent only. They are likely to disallow the defence where the state of the mind is obviously self-induced, the person is blameworthy, and the consequences could have been excepted.

Question 76

What is held in R v Clark?

Answer 76

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 that his act was morally wrong.

Question 77

What is held in R v Codere?

Answer 77

The nature and the quality of the act means the physical character of the act. The phrase does not involve any consideration of the accused’s moral perception nor his knowledge of the moral quality of the act. Thus a person who is so deluded that he cuts a woman’s throat believing that he is cutting a loaf of bread would not know the nature and quality of his act.

Question 78

Where automatism is brought about by a voluntary intake of alcohol or drugs, the court…………

Answer 78

may be reluctant to accept that the actions were involuntary or that the offender lacked intention.

Question 79

What standard of proof must the defence make their case in regards to a strict liability offence?

Answer 79

The defence must establish a defence to the balance of probabilities.

Question 80

What is the general rule when running with a defence of intoxication for an offence.

Answer 80

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

• where the intoxication causes disease of the mind so as to bring s23 of the Crimes Act 1961 (disease of the mind) into effect.
• where the intoxication causes a state of automatism.

Question 81

In respect of strict liability offence (eg EBA) how would a defence of intoxication play out in court?

Answer 81

With regard to strict liability offence like EBA, the defence of intoxication is unlikely to be very successful because the intent element required by the offence is so simple or basic that the person is not able to establish they had no intent to commit the offence.

Question 82

What 3 points must be satisfied before a defence of compulsion can be used?

Answer 82

A person is protected from criminal responsibility if

1) They have been compelled to commit the offence by some at the scene who had threatened them
2) The accused must have genuinely believed the threat
3) Must not be a party to any association or conspiracy involved in carrying out the threats.

Question 83

Explain entrapment

Answer 83

Entrapment occurs when an agent of an enforcement body deliberately causes a person to commit an offence, so that the person can be prosecuted

Question 84

What is the courts view of entrapment?

Answer 84

In New Zealand the court 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 85

What is held in Police v Lavelle?

Answer 85

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 86

List the ingredients of section 48 of the Crimes Act 1961

Answer 86

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

Question 87

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

Answer 87

Once the accused has decided that use of force was required ( a subjective view of the circumstances as the defendant believed them), section 48 then introduces a test of reasonableness which involves an objective view as to the degree an manner of force used.

Question 88

What is held in R v Ranger?

Answer 88

If this accused did really think that the lives of herself and her son were in peril because of the deceased, enraged after the struggle, might attempt to shoot them with a rifle near at hand, then it would be going too far, we think, to say that the jury could not entertain a reasonable doubt as to whether a pre-emptive strike with a knife would be reasonable force in all the circumstances.

Question 89

Define alibi

Answer 89

An alibi is the plea in a criminal charge of having been elsewhere at the material time: “the fact of being elsewhere”

Question 90

What must the defendant include in a notice of alibi?

Answer 90

the name and address of the witness or, if the name and address is not known to the defendant when the notice is given, any matter known by the defendant that might be of assistance in finding that witness.

Question 91

What is the procedure when alibi witnesses are interviewed?

Answer 91

The O/C case should not interview an alibi witness unless the prosecutor requests them to do so.

If an interview is requested;

• advised the defence counsel of the proposed interview.
• if the accused is not represented, endeavor to ensure the witness is interviewed in the presence of some independent person.
• make a copy of a witnesses’ signed statement taken at any such interview available to defence counsel through the prosecutor.

Question 92

If the defendant intends to call an expert witness during proceedings, what must they disclose to the prosecution?

Answer 92

• Any brief of evidence to be given by that witness or
• if that brief is not available, a summary of the evidence to be given
• this information must be disclosed at least 10 days before the date fixed for the defendants hearing or trial.

Question 93

Provide three guidelines in respect of consent regarding assault?

Answer 93

1) everyone has a right to consent to surgical operation
2) everyone has a right to consent to the infliction of force not involving bodily harm
3) no one has a right to consent to their death or injury likely to cause death.

Question 94

You cannot use the defence of consent to assault in the following cases

Answer 94

Aiding suicide

Criminal actions

injury likely to cause death

indecency offences

Question 95

What is held in R v Joyce

Answer 95

The court of appeal decided that the compulsion must be made by a person who is present when the offence is committed.

Question 96

How is the degree of force used tested in regards to self defence?

Answer 96

The degree of force permitted is tested initially under the following subjective criteria

• what are the circumstances that the defendant genuinely believed existed (whether or not it is mistaken belief)
• do you accept that the defendant genuinely believes those facts
• is the force used reasonable in the circumstances believed to exist