Homicide Law and Defences

Question 1

Can an organisation be convicted of manslaughter or murder?

Answer 1

Homicide is the killing of a human being by another, directly or indirectly by any means whatsoever.
In cases of :
* manslaughter an organisation can be convicted as a party of the offence.
* Murder, an organisation cannot be convicted as either a principal or a party , this is
the offence carries a mandatory life sentence

Question 2

What was held in MURRAY WRIGHT LTD in relation to an organisation being liable for murder?

Answer 2

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 3

what is the definition of when a child becomes a human being under s.158 “killing of a child”

Answer 3

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 breather or not whether it has an independent circulation or not, and wether the navel string has been severed or not.

Question 4

What is the definition of culpable homicide?

Answer 4

S.160

(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
3) Culpable homicide may be either Murder or Manslaughter
4) Non culpable Homicide is not an offence

Question 5

What are some of the cisrumstances where common law supports culpable homiced

Answer 5

Arson
Giving a child an excessive amount of alcohol to drink
Conducting an illegal abortion where a mother dies
supplying heroine to a person who subsequently dies of an overdose
throwing a large piece of concrete from a motorway overbridge into the path of an approaching car.

Question 6

/What is meant by an omission to perform a legal duty

Answer 6

this covers cases where nothing is done where there is a legal duty to act, and certain cases of positive conduct accompanied by a failure to discharge a legal duty in a particular duty of care.

Question 7

What are examples of culpable homicide caused by actions prompted by threats, fear of violence or deception

Answer 7

Jumps or falls out of a window and dies becuase they think they are going to be assaulted
Jumps into a river to escape an attack and drowns
When a person who has been assaulted and believes their life is in danger jumps from a train and is killed.

Question 8

What is the meaning of wilfully frightening?

Answer 8

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

Question 9

What must you prove to establish “death”

Answer 9

to establish death you must 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)

Question 10

What was held in R v HORRY in relation to circumstantial evidence to prove a death?

Answer 10

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.

Question 11

What is the definition of a year and a day?

Answer 11

the period of a year shall be inclusive of the day on which the last unlawful act contributing to the death took place , where the cause of death is an omission to perform a legal duty the period shall be reckoned inclusive of the day on which such omission ceased, where death is in part caused by an unlawful act and in part by an omission the period shall be reckoned inclusive of the day on which the last unlawful act took place or the omission ceased whichever happened last.

Question 12

What is the definition of murder

Answer 12

s. 177
a) if the offender means to cause 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.

Question 13

what must you prove about a defendants mind for a charge of murder?

Answer 13

You must show that the defendant
intended to cause death OR
knew that death was likely to ensue OR
was reckless that death would ensue

Question 14

What was held in R v HARNEY in relation to recklessness

Answer 14

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

Question 15

what was held in R V PIRI in regards to recklessness

Answer 15

recklessness (here) involves a conscious, deliberate risk taking. The degree of risk of death foreseen by the accused under either 167(b) of (d) must be more than neglible or remote. the accused must recognise a “real or substantial risk” that death would be caused.

Question 16

what was held in R V DESMOND re killing in pursuit of an unlawful object?

Answer 16

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

Question 17

Define s.66(2) in relation to parties to an offence

Answer 17

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 concequence, of the prosecution of the common purpose

(the secondary party must know the principal might do the act that causes death, hence the secondary need not know death was a likly consequence rather that the principal might do the act)

Question 18

what is the definition of “attempts” s.72 CA61

Answer 18

everyone who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing their objective, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.

Question 19

What was held in R v Murphy in regards to attempted Murder

Answer 19

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

(as there is a requirement for “intent” there cannot be an attempt where an offence is defined soeley in terms of recklessness or negligence

Question 20

what was held in R V HARPUR in relation to “an attempt”

Answer 20

the court may have regard to the conduct viewed in its entirety up to the point when the conduct in question stops, the defendants conduct may be considered in its entirety. Considering how much remains to be done, is always relevant although not determinative.

Question 21

outline the questions that should be asked for the test of ‘proximity’ in determining the point at which an act or mere preparation may become an attempt

Answer 21

• Has the offender done anything more than getting himself into a position from which h 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

Question 22

who decides “proximity” in relation to an attempt

Answer 22

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

Question 23

what are the differences between counselling or attempting to procure a murder and conspiracy to commit murder

Answer 23

Counselling or attempting to procure a murder s.174 CA61
the murder does not in fact occur and the proposed murder is intended to be committed in NZ.
Conspiracy to commit murder s.175CA61
The proposed murder can occur outside NZ and a person is liable whether the murder occurs or not.
CONSPIRACY CAN OCCUR OUTSIDE NZ AND THE MURDER CAN OCCUR

Question 24

What are examples of when murder might be reduced to manslaughter? (Voluntary Manslaughter)

Answer 24

“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.

Question 25

what is involuntary manslaughter

Answer 25

covers those types of unlawful killings 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.

Question 26

What is the Newbury Jones 4 point test for proving a manslaughter by intentional act?

Answer 26

1. the defendant must intentionally do an act
2. the act must be unlawful
3. the act must be dangerous
4. the act must cause death

Question 27

Define “legal duties”

Answer 27

legal duties are those duties imposed by statute and common law.

Question 28

what are the legal duties of a parent or guardian as in s.152CA61
(what are the ingredients)

Answer 28

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

1) everyone who is a parent or is a person in place of a parent who has actual care or charge of a child under the age of 18 in under a legal duty
a) to provide that child with necessaries AND
b) to take reasonable steps to protect that child from injury

Question 29

what are the ingredients of s.151 CA61

Duty to provide necessaries and protect from injury

Answer 29

151 (1) everyone who has actual care of charge of a person who is a vulnerable adult and who is unable to provide himself o herself with necessaries is under a legal duty

a) to provide that person with necessaries AND
b) to take reasonable steps to protect that person from injury

Question 30

what are the ingredients of s.153 CA61

duty of employers to provide necessaries

Answer 30

153 (1) everyone who as an employer has contracted to provide necessary food, clothing or lodging for ay servant or apprentice under the age of 16 years is under a legal duty to provide the same and is criminally responsible for ommitting without lawful excuse to perform such duty if the death of that servant or apprentice is caused or if his life is endangered of his health permanently injured by such omission.

Question 31

what are the ingredients of Abandoning a child under 6

Answer 31

s.154CA61 7 YEARS
everyone is liable to term of imprisonment not exceeding 7 years who unlawfully abandons or exposes any child under the age of 6

Question 32

What are the ingredients of s.163 Killing by influence on the mind?

Answer 32

No-one is criminally responsible for the killing of another by any influence on the mind alone, except for wilfully frightening a child under the age of 16, or a sick person nor for killing of another by any disorder or disease arising from such influence except by wilfully frightening any such child as aforesaid or sick person

Question 33

What i a suicide pact?

Answer 33

s.180(3) (5 years)
for the purposes of this section the term suicide pact means a common agreement between 2 or more persons having for its object the death of all of them, whether or not each is to take his own life.; but nothing done by a person who enters into a suicide pact shall be treated as done by him in pursuance of the pact unless it is done whille he has the settled intention o dying in pursuance of the pact.

Question 34

explain the culpabaility of those in a suicide pact

Answer 34

it is an offence to enter into a suicide pact where only one person dies as a result of an action by another person. However that person is guilty of manslaughter and not murder. (5 years )

Question 35

What are the ingredients of s.181 Concealing dead body of a child

Answer 35

Everyone is liable for a term of imprisonment 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 during, before or after its birth.

Question 36

When is a hearsay statment generally admissable?

Answer 36

A hearsay statment is generally admissable in any proceeding if the circumstances relating to the statment provide reasonable assurance that the statment is reliable and the maker of the statment is unavailable as a witness OR the judge considers that undue expense or delay would be caused if the maker of the statment were required to be a witness

Question 37

What is the culpability of a child under 10?

Answer 37

A child under 10 has an absolute defence to any charge bought against them, nevertheless even though the child cannot be convicted you still have to establish whether they are guilty.

Question 38

what is the culpability of a child aged between 10 and 13

Answer 38

for a child aged between 10 and 13 inclusive it must be shown that they knew there act was wrong and contrary to law, the test of knowledge is an addition to the mens rea and actus rea requirements if this knowledge cannot be shown the child cannot be criminally liable for the offence.

Question 39

Define and discuss R v FORREST and FORREST and proof of age?

Answer 39

“the best evidence possible in the circumstances should be adduced by the prosecution in proof of the victims age.
The prosecution is required to produce evidence of age (eg birth certificate) and provide evidence the identifies the person as the person named.

Question 40

how is a child aged 10 - 13 and 14-16 dealt with when charged with murder or manslaughter?

Answer 40

they are usually dealt with under the youth justice provisions of the OT Act 1989. Charges are filed in the district court the first appearance takes place in the youth court and the case then automatically transfers to the High Court for trial and sentencing.

Question 41

What is the definition of insanity?

Answer 41

S.23 Insanity

(2) No person shall be convicted of an offence by reason of an act done or ommitted by him when labouring under the natural imbecility 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
b) of Knowing that the act or omission was morally wrong having regard to the commonly accepted standards of right and wrong.

Question 42

what are the M’naghten’s rules used to establish whether a person is insane or not?

Answer 42

it is based on the persons ability to think rationally so that is 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

Question 43

what was held i R v CODERE in relation to insanity and the nature and quality of the act

Answer 43

the nature and 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 more 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 the act

Question 44

Define automatism and what was held in R v COTTLE

Answer 44

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
R v COTTLE
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 excercise bodily movements.

Question 45

Explain the two types of automatism

Answer 45

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
Both forms of automatism involve action without conscious volition

Question 46

What is the general rule regarding intoxication as a defence

Answer 46

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

1) where the intoxication causes a disease of the mind so as to bring s.23 (insanity) into effect.
2) if intent is required as an essential element of the offence and drunkenness is such that the defence can plead a lack of intent to commit the offence
3) where the intoxication causes a state of automatism (complete acquittal)

Question 47

What three points must be satisfied for a defence of compulsions

Answer 47

s.24 Compulsions
1) there must be a threat of immediate death or GBH
2) from a person who is present when the offence is committed
3) Ana belief on the part of the person who commits the offence that the threat will be carried out
(and they are not a party to any association or conspiracy )

Question 48

What was held in R v JOYCE in relation to the defence of compulsion

Answer 48

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

Question 49

what is entrapment?

Answer 49

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 50

what is the courts view on entrapment?

Answer 50

In NZ 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 on the defendant

Question 51

what was held in Police v LAVELLE re entraptment

Answer 51

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 offend.

Question 52

Define s.48 Self Defence and defence of another

Answer 52

Everyone is justified in using, in the defence of himself or another such force as, in the circumstances as he believes them to be is reasonable to use

Question 53

What was held in R v RANGER in relation to a pre-emptive strike?

Answer 53

it is possible for self defence to be a defence even if the defendant has used a pre-emptive strike against the victim;
Wife stabbed husband who had threatened to shoot her and had access to guns under the bed.

Question 54

What is an alibi

Answer 54

the plea in a criminal charge of having been elsewhere at the material time; the fact of being elsewhere.

Question 55

In relation to alibi evidence the defendant must give the prosecution a s.20 notice of alibi within 10 working days of the pleading NG or in the case of a child their first appearance in youth court, what must they include in their written notice?

Answer 55

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

Question 56

What is the procedure when interviewing alibi witnesses?

Answer 56

The OC case should not interview an alibi witness unless the prosecutor requests them to do so, if they do then they should follow this procedure:

1) advise the defence counsel of the proposed interview and give them a reasonable opportunity to be present
2) if the defendant is not present endeavour to ensure the witness is interviewed in the presence of some independent person not being a member of the police
3) make a copy of a witness’s signed statment 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.

Question 57

what must defence do if they wish to call expert evidence?

Answer 57

they must disclose to the prosecutor

1) any brief of evidence to be given or any report provided by that witness OR
2) if that brief or report is unavailable then a summary o the evidence to be given or conclusions of any report to be provided
3) this must be disclosed at least 10 working days before the date fixed for the defendants trial or within any further time the court may allow

Question 58

What are the situations where you cant use consent as a defence to an assault?

Answer 58

1. aiding suicide
2. performing criminal acts
3. causing injury likely to cause death
4. causing bodily harm likely to cause a breach of the peace
5. indecency offences
6. the placing of someone in a situation where they are at risk of death or bodily harm

Question 59

when are people considered unable to give consent?

Answer 59

when they are a child
unable to rationally understand the implications of their defence
where they are subject to force, threats of force or fraud.