Homicide Law and Defences Flashcards
The two critical factors to consider for a charge of murder are whether the offender intended to:
- kill the person, or
- cause bodily injury that the offender knew was likely to cause death.
If neither of these intentions can be proven, the most likely charge is manslaughter.
Homicide definition
Homicide is the killing of a human being by another, directly or indirectly, by any means whatsoever
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:
When does a child become human ?
Section 159 - Killing of a child definition
Simplified:
A child becomes a human being when it has completely proceeded in a living state from 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 due to injuries received before, during, or after birth.
Section 160 (2) - Culpable Homicide
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 culpable homicide mean ?
Means the killing is blameworthy. (Murder, manslaughter or infanticide)
6 indirect ways, allegations of culpable homicide have been supported where the offender has caused death by:
AHAHA T
Arson Heroin - Overdose Alcohol to minor Hot cinders and straw on drunk person to frighten them Abortion where the mother dies (Illegal)
Throwing concrete onto motorway
R v Myatt - Breach
Before a breach of any Act, regulation or bylaw would be an unlawful act [for the purposes of culpable homicide] it must be an act likely to do harm to the deceased.
(Thus, a breach of an electoral law, for example, would not suffice because although it is unlawful, it is not an act likely to do harm to the deceased nor is it an inherently dangerous act.)
What cases does Section 150A apply to?
Applies to any case where the unlawful act requires proof of negligence, or is a strict or absolute liability offence.
In such a case the person will only be criminally responsible if the unlawful act is a major departure from the standard of care expected from a reasonable person in the particular circumstances.
What does Omission to perform legal duty mean and what is the outcome?
Where nothing is done when there is a legal duty to act.
The defendant may be convicted of manslaughter or murder if the defendant had the requisite mens rea
Legal duty means duty imposed by statute or common law - what are some examples
- 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).
Unlawful acts and omission of duty: s160(2)(c) Defined
Sometimes both unlawful acts and the omission to perform a legal duty are applicable to the same act. For example, to drive a car so recklessly that you kill a pedestrian is both an unlawful act and an omission to observe your duty to take precautions when you are in charge of a dangerous thing (s156).
Threats, fear of violence and deception: s160(2)(d) What must be proven?
You must prove that the fear of violence was well founded, but you do not need to show that the deceased’s action was the only means of escape.
R v Tomars - Test for frights/deception
- 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?
Three Examples of culpable homicide caused by actions prompted by threats, fear of violence or deception are when a person:
- jumps or falls out of a window and dies 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.
What is the definition for “Frightening” a child or sick person?
“Wilfully frightening” is regarded as “intending to frighten, or at least be reckless as to this”.
The defendant must at least have been aware of a real risk that the victim is under 16 or sick.
Section 163 Killing by influence on the mind - definintion
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.
Killing by influence on the mind is not a crime except when:
Killing by influence on the mind alone is not a crime except as provided in s163. This would apply to someone who mentally tortures another person who is already mentally or physically sick, so that the victim has a mental breakdown and commits suicide.
Rulings around Death from lawful games or contests
Normally treated as non-culpable homicide.
Unless death is due to an act that is likely to cause serious injury, they will be guilty of manslaughter.
What three things are required to establish proof of death in a culpable homicide
You must prove DICK
- Death occurred
- Identity of the deceased
- It is a Culpable Killing
Death can be proved by direct and/or circumstantial evidence.
R v Horry - No body located
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.
Two examples of justified acts that may result in death
- 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).
Section 162 - Death must occur within:
Within one year and a day
-Inclusive of the day on which the unlawful act or omission contributing to the cause of death took place (whichever is last)
What are the three main types of Homicide?
murder, manslaughter and infanticide.
Can an organisation be convicted of murder or manslaughter?
No - the killing must be done by a human being
An organisation can however be convicted as a party to manslaughter (but not murder as they can’t serve the life sentence)
What is the legal view of consent to death?
The law does not recognise the right of a person to consent to their being killed (s63 of the Crimes Act 1961).
Section 167 - Murder defined
Culpable homicide is murder in each of the following cases:
(a) If the offender means to cause the death of the person killed:
(b) If the offender means to cause to the person killed any bodily injury that is known to the offender to be likely to cause death, and is reckless whether death ensues or not:
(c) If the offender means to cause death, or, being so reckless as aforesaid, means to cause such bodily injury as aforesaid to one person, and by accident or mistake kills another person, though he does not mean to hurt the person killed:
(d) If the offender for any unlawful object does an act that he knows to be likely to cause death, and thereby kills any person, though he may have desired that his object should be effected without hurting any one.
Section 168(1) - 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.
Two types of intent
Deliberate act - Act or omission that is more than involuntary or accidental
Intent to produce a result - aim object or purpose
If you are charging an offender with murder under s167 you must show one of what three points:
the defendant:
• intended to cause death, or
• knew that death was likely to ensue, or
• was reckless that death would ensue.
R v Harney
“Recklessness means the conscious and deliberate taking of an unjustified risk. In New Zealand it involves proof that the consequence complained of could well happen, together with an intention to continue the course of conduct regardless of risk.”
What must be established to prove a defendants state of mind in a case of murder
you must establish that the defendant:
• intended to cause bodily injury to the deceased
• knew the injury was likely to cause death
• was reckless as to whether death ensued or not
R v Piri
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:
R v Desmond - killing in pursuit of an unlawful object (Prison wall)
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
Section 66 Parties to offences - defined
(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 ( If it was known to be a probable consequence)
Section 172 Punishment of murder - defined
(1) Every one who commits murder is liable to imprisonment for life.
(2) Subsection (1) is subject to section 102 of the Sentencing Act 2002.
Section 102 (Sentencing Act) Presumption in favour of life imprisonment for murder - defined
(1) An offender who is convicted of murder must be sentenced to imprisonment for life unless, given the circumstances of the offence and the offender, a sentence of imprisonment for life would be manifestly unjust.
(2) If a court does not impose a sentence of imprisonment for life on an offender convicted of murder, it must give written reasons for not doing so.
Section 72, Crimes Act 1961
Definition of attempts
(1) Having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object (whether in the circumstances it was possible to commit the offence or not)
(3) An act done or omitted with intent to commit an offence may constitute an attempt if it is immediately or proximately connected with the intended offence
R v Murphy - Attempts
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:
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.
When determining an attempt what are Two factors that test for proximity
- 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
Punishment of attempted murder
Every one who attempts to commit murder is liable to imprisonment for a term not exceeding 14 years.
Section 174 Counselling or attempting to procure murder - Defined
Every one is liable to imprisonment for a term not exceeding 10 years who incites, counsels, or attempts to procure any person to murder any other person in New Zealand, when that murder is not in fact committed.
(Where murder is attempted but not in fact committed, an inciter, counsellor or procurer will be liable as a party under s 66(1)(d) to an attempt to murder under s 173.)
Section 175 Conspiracy to murder - defined
(1) Every one is liable to imprisonment for a term not exceeding 10 years who conspires or agrees with any person to murder any other person, whether the murder is to take place in New Zealand or elsewhere.
Section 175 may apply regardless of whether murder is committed or not.
Section 176 Accessory after the fact to murder - term
Every one is liable to imprisonment for a term not exceeding 7 years who is an accessory after the fact to murder.
Section 71 - Definition of Accessory after the fact
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 to enable him to escape after arrest or to avoid arrest or conviction.
R v Mane - Accessory after the fact
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.
What is 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.
What is 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 grievous bodily harm.
Manslaughter, then, includes culpable homicide that:
• does not come within s167 or s168
• comes within ss167 and 168, but is reduced to manslaughter because the killing was a part of a suicide pact
four-point test for proving an unlawful act for manslaughter.
- The defendant must intentionally do an act
- The act must be unlawful
- The act must be dangerous
- The act must cause death
Section 150A Standard of care applicable to persons under legal duties or performing unlawful acts
A person is criminally responsible for omitting to discharge or perform a legal duty, or performing an unlawful act, if it is a major departure from the standard of care expected of a reasonable person to whom that legal duty applies or who performs that unlawful act.
