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Homicide Law Flashcards

1
Q

What does culpable homicide mean?

A

Culpable homicide means the killing is blameworthy. It includes murder, manslaughter or infanticide

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2
Q

Define Homicide inc. section

A

Section 158
Homicide is the killing of a human being by another, directly or indirectly, by any means whatsoever

Homicide must be culpable to be an offence

An organisation can be convicted as party to manslaughter, but not murder as this carries a life imprisonment

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3
Q

Define Murray Wright Ltd (Case Law) - Organisiation

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

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4
Q

Define Killing of a Child inc. section

A

Section 159

1) A child becomes a human being when it has completely proceeded in a living state from the body of the 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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5
Q

Define Culpable Homicide inc. section

A

Section 160

(1) Homicide may be either culpable or not culpable
(2) Homicide is culpable when it consists of killing of any person
a) by any unlawful act (Arson)
b) by an omission without lawful excuse to perform or observe any legal duty or (Surgeon’s error)
c) by both combined (Driving recklessly causes death)
d) by causing that person by threats or fear of violence, or by deception to do an act that causes his death or (Fright and jumps out of window)
e) by wilfully frightening a child under the age of 16 or sick people
(3) Except as provided in section 178 (Infanticide) of this act, culpable homicide is either murder or manslaughter
(4) Homicide that is not culpable is not an offence

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6
Q

What is an unlawful act

A

A breach of any act, regulation, rule or bylaw

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7
Q

Define R v Myatt - unlawful act

A

Before a breach of any act, regulation or bylaw would be an unlawful act under s160 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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8
Q

List examples of culpable homicide where negligence is a factor (S150A)

A
  • 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 subsequently dies from an overdose
  • Throwing a large piece of concrete from a motorway overbridge into the path of an approaching car
  • Conducting an illegal abortion where the mother dies
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9
Q

Define the omission to perform legal duty that results in death S160(2)(b)

-List four relevant sections

A

The expression legal duty refers to those duties imposed by statute or common law including uncodified common law duties:

  • 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)
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10
Q

Define R v Tomars

Threats, fear of violence and deception

- Four questions

A
  • Was the 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?

Examples:

  • Jumps or falls out of a window (or jumps from a train) because the think they are going to be assaulted
  • Jumps into a river to escape an attack
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11
Q

Define Wilfully Frightening

A

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

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12
Q

Define S163 Killing by influence of mind

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 as aforesaid or a sick person

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13
Q

How do you establish the death?

A

Must prove:

  • Death occurred
  • Deceased is identified as the person who has been killed
  • The killing is culpable
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14
Q

Define R v Horry - body not located

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

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15
Q

Examples of non-culpable homicide

A

When an act is justified the perpetrator is exempt

  • 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
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16
Q

When is culpable homicide murder - S167

-4 points

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 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

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17
Q

Define GBH and Injuries

A 
GBH = Harm that is really serious
Injury = Actual bodily harm
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18
Q

Proof of an intent to cause death

A

Must show the defendant

  • Intended to cause death or
  • Knew that death was likely to ensue or
  • Was reckless that death would ensue
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19
Q

Define R v Piri - recklessness

A

Recklessness here 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 negligible or remote. The accused must recognise a real or substantial risk that death would be caused

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20
Q

Define Attempts - S72

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 intended, whether in the circumstances it was possible to commit the offence or not

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21
Q

R v Murphy - Intent must be established

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

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22
Q

R v Harpur - Several acts

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 determative

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23
Q

Proximity

Preparation vs attempts

A

Preparation v Attempts

  • Has the offender done anything more than getting himself into a position from which he could do the attempt?
  • Has the offender actually commenced execution of the offence?

Proximity is a question of law, it is a question that is decided by the judge based on the assumption that the facts of the case are proved

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24
Q

What is section 173, 174, 175, 176

A

S173 - Attempted Murder - 14 years imprisonment
S174 - Counselling or attempting to procure murder - 10 years imprisonment
S175 - Conspiracy to Murder - 10 years imprisonment
S176 - Accessory after the fact to murder - 7 years imprisonment (must prove S71(1))

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25
Q

Define Accessory After the Fact

A

S71(1)
Knowing any person to have been a party to the offence
Receives, comforts, or assists that person OR
Tampers with or actively suppresses any evidence against him
In order for him to escape after arrest or to avoid arrest or conviction

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26
Q

R v Mane - Offence must be complete

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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27
Q

Voluntary manslaughter vs Involuntary manslaughter

A

Voluntary manslaughter - 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 GBH

Involuntary manslaughter - 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 GBH

Manslaughter includes culpable homicide that:

  • does not come within S167 or S168
  • comes within S167 and 168, but is reduced to manslaughter because the killing was part of a suicide pact as defined in s180(3)
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28
Q

Considerations for killing in a sudden fight

A

It is crucial for you to consider these issues if you are to decide the way in which the killing should be viewed:

  • If the homicide can be justified as having arisen out of self defence the proper verdict is an acquittal
  • If the fact there was a fight negates that the defendant had the required mens rea to bring a charge of murder with S167, the proper verdict is manslaughter
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29
Q

Define gross negligence

A

S150A(1) Must prove a very high degree of negligence or gross negligence. Both are not defined by statute

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30
Q

Define the major departure test

A

The major departure test in S150A(2) requires a high degree of negligence.

Also applies where a negligent omission results in endangerment or injury contrary to S153(2)

Gross negligence must be shown whether the case relates to an unlawful act or an omission

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31
Q

State the section and penalty for manslaughter

A

S177
Life imprisonment

Judge may impose any penalty from a fine to life imprisonment after taking all the circumstances into account

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32
Q

Define Infanticide

A

S178
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

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33
Q

Who decides the mothers state of mind

A

If the woman is charged with murder or manslaughter, but the jury believes her state of mind is due to the effects of childbirth, the jury is required to return a special verdict of acquittal on account of insanity caused by childbirth.

Can charge with murder and alternate of infanticide - jury to decide on state of mind

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34
Q

Define S151 - Duty to provide the necessaries and protect from injury

A

Everyone who charge of a person who is a vulnerable adult and is unable to provide himself with necessaries is under a legal duty

  • to provide that person with necessaries and
  • to take reasonable steps to protect that person from injury
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35
Q

Define S152 - Duty of a parent or guardian to provide necessaries and protect from injury

A

Everyone who is a parent or charge of a child under 18 years is under a legal duty

  • to provide the child with necessaries
  • to take reasonable steps to protect that child from injury
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36
Q

Define S153 - Duty of employers to provide necessaries

A

Everyone who is an employer has contracted to provide necessary food, clothing, or lodging for any servant or apprentice under 16 is under a legal duty
-to provide the same and is criminally responsible for omitting without lawful excuse to perform such duty if the death of that servant or apprentice is caused, or if his life is endangered or his health permanently injured, by such omission

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37
Q

Define S163 - Killing by influence on the mind

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 as aforesaid or a sick person

38
Q

Define S154 - Abandoning a Child

A

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

39
Q

R v Blaue

A

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

Stabbing of a person who refused a blood transfusion - the fact that the victim refused to stop this end coming about did not break the casual connection between the act and death

40
Q

Define S179 - Aiding and abetting suicide

A

14 years for anyone who:

a) incites, counsels, or procures any person to commit suicide, if that person commits or attempts to commit suicide in consequence thereof; or
b) aids or abets any person in the commission of suicide

41
Q

Define S180 - Suicide pact

A

Manslaughter penalty

(2) Where 2 or more persons enter into a suicide pact, and in pursuance of it one or more of them kills himself, any survivor is guilty of being a party to a death under a suicide pact contrary to this subsection and is liable to imprisonment for a term not exceeding 5 years; but he shall not be convicted of an offence against S179

42
Q

Define S181 - Concealing a child’s body

A

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, or during, or after birth

43
Q

When can a hearsay statement be admissible

A

Reliable and
The maker of the statement is unavailable as a witness or
The Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness

44
Q

Circumstances of how to consider a hearsay statement reliability

A

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 the statement
Circumstances relating to the accuracy of the observation of the person

45
Q

Difference between justified and protected from criminal responsibility

A

Justified - means that the person is not guilty of an offence and is not liable civilly

Protected from criminal responsibility means the person is not guilty of an offence but civil liability may still arise

46
Q

Define the defences for children - S21 & S22

A

S21(1) No person shall be convicted of an offence by reason of any act done or omitted by him when under the age of 10 years

S22(1) No person shall be convicted of an offence by reason of any act done or omitted by him when of the age of 10 but under the age of 14, unless he knew either that the act or omission was wrong or that it was contrary to law (this test is in addition to the mens rea and actus reus)

47
Q

Define R v Forrest and Forrest

A

The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victim’s age

48
Q

State the general rule for child offenders

A

All child offenders will be referred to the Care and Protection Co-ordinator until they reach the age of 14 years

49
Q

How is a child 10-13 years charged with murder/manslaughter

A

Charges are filed in the District Court

The first appearance takes place before the Youth Court and the case then automatically transfers to the High Court for trial and sentencing

50
Q

How is a young person 14-16 years charged with murder/manslaughter

A

Charges filed in the District Court

The first appearance takes place before the Youth Court and the case then automatically transfers to the High Court for trial and sentencing

51
Q

Define S23 - Insanity

A

S23(2) No person shall be convicted of an offence by reason of an act done or omitted by him when labouring under natural imbicility 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 the act or omission was morally wrong, having regard to the commonly accepted standards of right and wrong

52
Q

What happens if there is strong evidence of a persons insanity

A

A person can be acquitted of a charge even if they or their counsel have not put up the defence of insanity if there is strong evidence of the crime and they were insane at the time

The judge must direct the jury to S23 Insanity and the jury must decide if it is to acquit then it must be for the defendants innocence or insanity

53
Q

Define the balance of probabilities with insanity referring to R v Cottle

A

Law assumes the defendant is sane, defence to prove defendant is insane

The defendant is not required to prove insanity beyond reasonable doubt but to the satisfaction of the JURY on balance of probability

R v Cottle
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

54
Q

How to prove insanity referring to R v Clark

A

Insanity is not a legal question or a medical one however it is addressed by evidence given by medical experts

R v Clark
The decision as to an accused’s insanity is always one 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

55
Q

What are M’Nagten’s rules?

A

Frequently used to establish whether or not a defendant is insane. It is based on the persons 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 quality of their actions or
That what they were doing was wrong

56
Q

Define a disease of the mind

A

A term which defies precise definition and which can comprehend mental derangement in the widest sense. Does not include a blow to the head, drugs, alcohol, anesthetic or hypnotism

Whether the particular condition is a disease of the mind is a question of law for the judge

Disease of the mind is not a medical question but a legal one

57
Q

What is the first part of R v Codere in relation to the nature and quality

A

The nature and quality of the act means the physical character of the act

58
Q

Consequences of someone found unfit to stand or deemed insane

A

May be detained as a special patient or special care recipient

59
Q

Define automatism

A

Described as a state of total blackout, during which a person is not conscious of their actions and not in control of them

60
Q

R v Cottle - automatism

A

Doing something without knowledge of it and without memory afterwards of having done it - a temporary eclipse of consciousness that nevertheless leaves the person so affected able to exercise bodily movements

61
Q

Describe automatism culpability

A

No criminal liability for automatism includes being caused by a medical condition

When caused by a voluntary intake of drugs or alcohol the Court may be reluctant to accept that the actions were involuntary or that the offender lacked intent
Needs convincing evidence to support it, such statements have been called “one of the first refuges of a guilty conscious” and a popular excuse

62
Q

What are the two types of automatism

A

Sane automatism - the result of sleepwalking, a blow to the head or the effects of drugs

Insane automatism - the result of a mental disease

63
Q

Define automatism induced by drink or drugs

A

Only available as a defence if the evidence of the defence can clearly raise the issue of being automaton by ingesting so many drugs or alcohol that they are not responsible for their actions

64
Q

List examples where no intent is required and where intent is required

A 
No intent (strict liability)
-EBA, therefore for a defence to succeed on this charge a person must prove a total absence of fault. The person drove without conscious appreciation of the fact of driving, or of the fact of intoxication

Intent
-Any offence that has an intent element eg assault

65
Q

Describe how automatism applies in NZ

A

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

66
Q

When can intoxication be a defence

3 points

A
  • Where the intoxication causes a disease of the mind so as to bring S23 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)

Intoxication can be used for any offence that requires intent

67
Q

R v Kamipeli in relation to intoxication

A

For intoxication to succeed as a defence all you need to establish is reasonable doubt about the defendants required state if mind at the time of the offence

68
Q

Define the defence of compulsion - S24

A

A person who commits an offence under the compulsion by threats of immediate death or GBH from a person who is present when the offence is committed is protected from criminal responsibility if he believes that the threats will be carried out and if he is not a party to any association or conspiracy whereby he is subject to compulsion

69
Q

Define immediacy and presence - R v Joyce

A

The threats of death or GBH must be immediate and from a person present at the time

R v Joyce
The Court of Appeal decided that the compulsion must be made by a person who is present when the offence is committed

70
Q

Define entrapment

A

Occurs when an enforcement agent deliberately causes a person to commit an offence so that person can be prosecuted

71
Q

What are the two types of people entraped

A

Those who are pre-disposed to commit certain offences

Those who are initiated, encouraged or stimulated by officers to commit an offence who would be otherwise a non offender and who was not in any event ready and available to commit the offence

72
Q

R v Lavelle - entrapment

A

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

73
Q

Define S48 - Self defence

A

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

74
Q

Define the initial need to use force for self defence

A

Subjective test as to the initial need to use force in self defence. Force may be used before any bodily harm or threat is received, merely to escape or break away from a threatening or dangerous situation

75
Q

Define the subjective and objective test in self defence

A

Once the defendant has decided that use of force was required (a subjective view of the circumstances as the defendant believed them) S48 then introduces a test of reasonableness which involves an objective view as to the degree and manner of the force used.

76
Q

How do you determine the degree of force use in self defence?
- 3 points

A

Subjectively tested by the following:

  • What are the circumstances that the defendant genuinely believes exist (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?
77
Q

Who decides the threshold for self defence

A

The judge decides on the evidence that forms the basis of the defence for the jury. Then the jury decides unless it is impossible for the jury to entertain a reasonable doubt that the defendant acted in self defence

78
Q

What is the definition of an alibi

A

Chambers Dictionary defines an alibi as the plea in a criminal charge of having been elsewhere at the material time: the fact of being elsewhere

79
Q

How is an alibi used

A

Defendant must give written notice to the prosecutor of the particulars of the alibi. Must be given within 10 working days after the defendant is given notice under S20 CDA

Notice must include name and address of the witness

80
Q

What is the procedure of alibi witness interviews

A

O/C case should not interview witnesses unless requested to by the prosecutor - if so then follow:

  • Advise the defence counsel of the interview and give them opportunity to be present
  • If the defendant is not represented, ensure the witness is interviewed with an independent person (not Police)
  • Make a copy of the witness’s signed statement and give to the defendant through the prosecutor. Any information on the credibility can be withheld under S16(1)(o) CDA
81
Q

When does expert evidence have to be disclosed by?

A

At least 10 days prior to the trial or within any further time that the court may allow

82
Q

Death from lawful games or contests

A

Boxing, wrestling, football and hockey - treated as non-culpable homicide unless contestant does an act that is likely to cause serious injury - then guilty of manslaughter

83
Q

R v Harney - Recklessness

A

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

84
Q

Parties to - S66(2)

A

Where 2 or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therin, 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

85
Q

Define the joint responsibility in relation to parties

A

It must be shown that 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 S168

86
Q

What is the punishment of murder?

A

S172(1) Life imprisonment
(2) Subsection (1) is subject to section 102 of the Sentencing Act 2002

S102 SA2002 - Life imprisonment unless manifestly unjust

87
Q

What does the crown have to prove in relation to intoxication

A

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

88
Q

What are some people who cannot give consent

A

If they are:

  • A child
  • Unable to rationally understand the implications of their defence
  • Subject to force, threats of force or fraud
89
Q

When can the defence of consent not be used?

A

Aiding suicide
Criminal actions
Injury likely to cause death
Bodily harm likely to cause a breach of the peace
Indecency offences
The placing of someone in a situation where they are at risk of death or bodily harm

90
Q

R v Desmond - Killing in pursuit of an unlawful object

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

91
Q

What does S160(2)(b) cover?

A

This covers cases where nothing is done when there is a legal duty to act, and in 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 required mens rea

92
Q

Define consent

A

Consent is a persons conscious and voluntary agreement to something desired or proposed by another

DTP New (8 decks)

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