Homicide Law and Defences Flashcards
How is homicide defined under s158?
Homicide is the killing of a human being by another, directly or indirectly, by any means whatsoever.
Can an organisation (as opposed to a human being) be convicted of murder or manslaughter? Explain your answer with Case Law.
Manslaughter; an organisation can be convicted as a party to the offence (section 66(1)). Murder, an organisation cannot be convicted as either a principal offender or a party to the offence. This is because the offence carries a mandatory life sentence.
Murray Wright Ltd [1970] NZLR 476.
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.
Section 159 defines when a child becomes a human being, and is therefore capable of being murdered under section 158. What does this state?
(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
Define Culpable homicide s160?
(1) Homicide may be either culpable or not culpable.
(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; 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
What does s160(2)(b) mean in relation to omission to perform legal duty?
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, provided there was sufficient fault, or murder if the defendant had the requisite mens rea
Define ‘legal duty’?
The expression “legal duty” refers to those duties imposed by statute or common law including uncodified common law duties:
Duties imposed by statute are mainly common law duties that have been embodied in statute.
Omission of legal duties can amount to homicide. 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”:
List 3 duties imposed by statute?
- 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)
What was held in R v TOMARS in relation to threats, fear of violence and deception?
R v Tomars
Formulates the issues 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 position at the time could reasonably have foreseen the consequences?
4. Did these foreseeable actions of the victim contribute in a [significant] way to his death?
Threats, fear, or deception can result in culpable homicide. What are three examples of this?
When a person:
- jumps or falls out of a window because they think they are going to be assaulted
- jumps into a river to escape an attack and drowns
- who has been assaulted and believes their life is in danger, jumps from a train and is killed
How is ‘wilfully frightening’ defined by Adams on Criminal Law?
“Wilfully frightening” is regarded as “intending to frighten, or at least be reckless as to this”. Adams on Criminal Law
What does s163 state in relation to killing by influence on the mind, and give an example?
Legislation 163 Killing by influence on the mind
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.
For example this would apply if someone was driven into an extreme anxiety state by work or domestic pressures, but had no previous mental or physical ailment and committed suicide, the person causing the anxiety would not be culpable for the death.
To establish the death of a person what must you prove?
- 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
What was the ruling in R v HORRY?
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 that some acts are “justified” even when they result in death. Section 2 provides that when an act is justified the perpetrator is exempt from both criminal and civil liability.What are examples of this?
. Examples of such acts include:
- homicide committed in self-defence (s48)
- 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 any one (s41).
Note that use of force here is limited to that which is reasonably necessary in the circumstances.
Other non-culpable homicides are protected from only criminal responsibility.
What does s162(1) and (2) state around when death must have occured?
(1) No one is criminally responsible for the killing of another unless the death takes place within a year and a day after the cause of death.
(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.
List 3 instances where culpable homicide is murder under s167(a)-(d)?
(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.
Define s168 in relation to the 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.
What was the ruling in R v HARNEY?
“[Recklessness involves] foresight of dangerous consequences that could well happen, together with an intention to continue the course of conduct regardless of the risk.”
What is outlined in s66(2)?
66(2) Where 2 or more persons form a common intention to prosecute any 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.
What does “grievous bodily injury” mean and give an example?
“Grievous bodily injury” means harm that is very serious, such as injury to a vital organ. To come within subsection (1)(c), the stopping of the victim’s breath must be done “wilfully”.
Define attempts under s72(1)?
72(1) Every one 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.
What was held in R v MURPHY in relation to what intent must be established?
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.
What was held in R v HARPUR?
R v Harpur
[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.
In the Test for Proximity, Simester and Brookbanks (Principles of Criminal Law, 3rd, 224) suggests what questions should be asked in determining the point at which an act of mere preparation may become an attempt?
- Has the offender done anything more than getting himself into a position from which he could embark on an actual attempt? or
- Has the offender actually commenced execution; that is to say, has he taken a step in the actual offence itself?
If the answer to either question is “yes” then we can say there has been an attempt as a matter of law. If not, the conduct can be classed as preparation and is not an offence.
The test for proximity is a question of law that who decides?
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.
What is the punishment for attempted murder under s173?
Every one who attempts to commit murder is liable to imprisonment for a term not exceeding 14 years.
What are 3 differences between s174 - Counselling or attempting to procure murder and s175 - Conspiracy to Murder?
- Section 174 applies where murder is not in fact committed
- Section 175 may apply regardless of whether murder is committed or not
- Section 175 can include the death of another outside New Zealand (if it would amount to murder in NZ)
What was held in R v MANE?
R v Mane
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.
Define 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 grievous bodily harm.
Define involuntary manslaughter?
Covers those types of unlawful killing in which death is caused by criminal negligence. In such cases there has been no intention to kill or cause grievous bodily harm.
When you come across a killing that is the result of a sudden fight, it is crucial for you to consider what 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 (s48) 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 within section 167, the proper verdict is manslaughter.
Before a conviction can be obtained for manslaughter where one of the sections referred to in s150A(1) the prosecution must prove what?
A“very high degree” of negligence or “gross negligence”.
Infanticide is the third major charge in relation to culpable homicide. Provisions for this offence are set out in s178(1) which states what?
(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.
