Homicide Law & Defences

Question 1

Critical factors to consider for a charge of murder:

Answer 1

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

Question 2

Homicide defined:

Answer 2

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

Question 3

Murray Wright Ltd

Answer 3

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 4

Killing of a child
IBCN

Answer 4

(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.

Question 5

Culpable homicide
UOBTW

Answer 5

(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; ot
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 178 the age of 16 years or a sick person.

(3) Except as provided in section 178 of this Act, culpable homicide is either murder or manslaughter.

(4) Homicide that is culpable is not an offence

Question 6

Unlawful Act
BARR

Answer 6

means a breach of any Act, regulation, rule, or bylaw.

Question 7

R v Myatt

Answer 7

It must be an act likely to do harm to the deceased or to some class of persons of whom he was one.

Question 8

R v Lee

Answer 8

The act must be objectively dangerous that is, would a reasonable person in the shoes of the Defendant know the risk of harm existed? It was also held that “some” harm means “more than tivial” harm.

Question 9

The Crimes Act 1961 defined duties to:
PPPUTA

Answer 9

s151 provide the necessaries and protect from injury
s152 provide necessaries and protect from injury to your charges when you are a parent or guardian
s153 provide necessaries as an employer
s155 use reasonable knowledge and skill when performing dangerous acts, such as surgery
s156 take precautions when in charge of dangerous things=, such as machinery
s157 avoid omissions that will endanger life

Question 10

R v Corbett
RAP

Answer 10

The Victim’s conduct must be such that it would be reasonably foreseen, is proportionate to the threat, or is within the ambit of reasonableness. Although the victim might do the wrong thing or act unwisely, it is sufficient if the reaction “is in the foreseeable range”

Question 11

R v Tomars
?CCC

Answer 11

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 Defendants position at the time could reasonably have foreseen the consequences?
4. did these foreseeable actions of the victm contribute in a significant way to his death?

Question 12

Simester and Brookbanks

Answer 12

wilfully would require that the offender intended to frighten, or at least subjectively reckless as to the risk of that.

Mean rea should be interpreted as applying to all the elements in s160(2)(e),

so that the Defendant must at least have been aware of a real risk that the victim is under 16 or sick.

Question 13

Proof of death
DDC

Answer 13

1. death occurred
2. deceased is identified as the person who has been killed
3. the killing is culpable

death can be proved by direct/or circumstantial evidence

Question 14

R v Harry

Answer 14

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 15

Exception of justification (non-culpable homicide)

Answer 15

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

Question 16

Murder defined
MMDD

Answer 16

Culpable homicide is murder in each of the following cases

If the offender means to cause the death of the person killed

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:

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:

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 17

Intent

Answer 17

Deliberate act
Intent to produce a result

Question 18

Intent to cause death
IKW

Answer 18

intended to cause death, or
knew that death was likely to ensue, or
was reckless that death would ensue.

Question 19

Cameron v R
RRER

Answer 19

Recklessness is established if:
a. the Defendant recognised that there was a real possibility that.
i. his/her actions would bring about the proscribed result; and/or
ii. that the proscribed circumstances existed; and
b. having regard to that risk those actions were unreasonable

Question 20

R v Piri
CDR

Answer 20

Recklessness involved a conscious, deliberate risk-taking.

The degree of risk 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.

Question 21

R v Desmond

Answer 21

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 22

S66 - Parties to offences

Answer 22

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.

Question 23

Joint responsibility

Answer 23

It is not necessary to show that the secondary party knew the death was a probable consequence of their carrying out the primary purpose.

Rather 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

Question 24

s172 - Punishment of murder

Answer 24

1. Everyone who commits murder is liable to imprisonment for life.
2. SDubsequetion (1) is subject 102 of the Sentencing Act 2002

Question 25

s72 CA 61 - Definition of attempts

Answer 25

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.

intent to commit an offence is or is not only preparation for the commission of that offence, and too remote to constitute an attempt to commit it, is a question of law.

immediately or proximately connected with the intended offence

Question 26

R v Murphy

Answer 26

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 27

R v Harpur

Answer 27

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.

Question 28

Proximity

Answer 28

Ask yourself: “Do the facts show mere preparation, or are the Defendant’s acts or omissions immediately or sufficiently proximate to the intended 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.

Question 29

S173 Attempt to murder

Answer 29

Everyone who attempts to commit murder is liable to imprisonment for a term not exceeding 14 years.

Question 30

S174 Couselling or attempting to procure murder
ICAP

Answer 30

Everyone is liable to imprisonment for a term not exceeding 10 years who incides, counsels, or attempts to procure any person to murder any other person in NZ, when that murder is not in fact commited.

Question 31

S175 Conspiracy to murder

Answer 31

Everyone is liable to imprisonment for a term not exceeding 10 years who consipires or agrees with any person to murder any other person, whether the murder is to take place in NZ or elsewhere.

2. For the purposes of this section, the expression to murder includes to cause the death of another person out of NZ in circumstances that would amount to murder if the act were cimmited in NZ.

Question 32

S176 Accessory after the fact to murder

Answer 32

Everyone is liable to imprisonment for a term not exceeding 7 years who is an accessory after the fact to murder.

Question 33

R v Mane

Answer 33

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 alleged criminal conduct was wholly completed before the offence of homicide was completed.

Question 34

Voluntary manslaughter

Answer 34

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.

Question 35

Involuntary manslaughter

Answer 35

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 cause grievous bodily harm.

Question 36

Voluntary manslaughter

Answer 36

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.

Question 37

Manslaughter by unlawful act
DDUI

Answer 37

Newbury and Jones
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 38

Manslaughter by negligence

Answer 38

The situations that may give rise to a charge of manslaughter by negligence are diverse and include negligence while in charge of or using trains, factory machinery, mines, motor vehicles, ships, or weapons, or while administering medical or surgical treatment.

Question 39

Common law defines two distinct types of manslaughter

Answer 39

voluntary manslaughter
involuntary manslaugther

Question 40

Infanticide
BRLD

Answer 40

Where a woman causes the death of any child of her 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 reasons of the effect of lactation, or by reasons 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.

Question 41

Provisions of necessaries
S151 - S152 - S153

Answer 41

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

S152 - Duty to parent or guardian to provide necessaries and protect from injury.

S153 - Duty of employers to provide necessaries

Question 42

Vulnerable adult
MAADS

Answer 42

means a person unable, by reason of detention, age, sickness, mental impairment, or any other cause, to withdraw himself or herself from the care or charge of another person.

Question 43

S154 - Abandoning a child

Answer 43

S154 - 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.

Question 44

Dangerous acts or things

Answer 44

S155 - Duty of person doing dangerous acts.
S156 - Duty of person in charge of dangerous things.

Question 45

S157 - Omissions that endanger life

Answer 45

S157 - Duty to avoid omissions dangerous to life.

Question 46

S163 - Encouraging death

Answer 46

S163 - Killing by influence on the mind

Question 47

S164 - Acceleration of death

Answer 47

s164 - Acceleration of death

Question 48

Causing death
S165 - S166

Answer 48

S165 - Causing death that might have been prevented

S166 - Causing injury the treatment of which causes death.

Question 49

R v Blaue

Answer 49

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

Question 50

S179 - Aiding and abetting suicide
ICAP

Answer 50

S179 - Everyone is liable to imprisonment for a term not exceeding 14 years who;
a. Incidies, counsels, or procures any person to commit suicide, if that person commits or attempts to commit suicide in consequence therof; or
b. Aids or abets any person in the commission of suicide.

Question 51

S180 - Suicide Pact

Answer 51

S180 - Everyone who in pursuance of a suicide pact kills any other person is guilty of manslaughter and not of murder, and is liable accordingly.
2. Where 2 or more persons enter into a suicide pact, and in pursuance of it one or more of them kills themselves, 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 of this act.
3. For the purposes of this act 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 while he has the settled intention of dying in pursuance of the pact.

Question 52

S181 - Concealment of the body of a child

Answer 52

S181 - Everyone is liable to imprisonment for a term not exceeding 2 years who disposes of 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.

Question 53

S18 - General admissibility of hearsay
NUUCCC

Answer 53

S18 - A hearsay statement is admissible in any proceeding if
a. the circumstances relating to the statement provided 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 or delay would be caused if the maker of the statement were required to be a witness.

*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.

Question 54

Legislation:
1. Infancy
2. Determining age

Answer 54

S21 - Children under 10 - 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 - Children between 10-14 - 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 years unless he knew either that the act or omission was wrong or that it was contrary to law.

S5 - Attainment of particular age - For all purposes of the law of NZ the time at which a person attains a particular age expressed in years shall be the commencement of the relevant anniversary of the date of his birth.

Question 55

R v Forrest & Forrest

Answer 55

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

Question 56

S23 - Insanity

Answer 56

S23 - Insanity
1. Everyone shall be presumed to be sane at the time of doing or omitting any act until to contrary is proved.
2. 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 a 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.
3. Insanity before or after the time when he did or omitted the act, and insane delusions, through partial, may be evidence that the offender was, at the time when he did or omitted the act, in such a condition of mind as to render him irresponsible for the act or omission.

Question 57

R v Green

Answer 57

insanity is a matter for the defence to raise and the prosecution is prohibited from adducing evidence of insanity even if the accused has sought acquittal because of some state of mind not amounting to insanity.

Question 58

R v Cottle

Answer 58

As to degree of proof, is it sufficient if the plea is established to the satisfaction of the jury on a preponderance of probabilities without necessarily excluding all reasonable doubt.

Question 59

R v Clark

Answer 59

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 60

M’Naghten’s rules

Answer 60

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:
1. the nature and quality of their actions, or
2. that what they were doing was wrong.

Question 61

Disease of the mind

Answer 61

is not a medical question but a legal one.

Question 62

R v Codere

Answer 62

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 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 63

R v Cottle

Answer 63

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.

Question 64

Automatism

Answer 64

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

Actions performed in a state of automatism are involuntary and the common law rule is that there is no criminal liability for such conduct.

Type types:
1. Sane automatism - the result of somnambulism (sleepwalking), a blow to the head, or the effects of drugs.
2. Insane automatism - the result of a mental disease.

Question 65

S25 - Ignorance of law

Answer 65

S25 - Ignorance of law
The fact that an offender is ignorant of the law is not an excuse for any offence committed by him.

Question 66

Compulsion or duress

Answer 66

the act of compelling a person to do something against their will.

Question 67

R v Joyce

Answer 67

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

Question 68

Mistake & Entrapment

Answer 68

Mistake - there needs to be an “honest mistake”. however, it is doubtful whether “honest” adds anything.

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

Question 69

Police v Lavelle

Answer 69

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 70

Notice of alibi

Answer 70

1. If a Defendant intends to adduce evidence in support of an alibi, the Defendant must give written notice to the prosecutor of the particulars of the alibi.
2. The notice under subsection 1 must be given within 10 working days.
3. without limiting subsection -
   a. name & address.
   b. if not included, have, before giving the notice, take all reasonable steps, and after giving the notice continue to take all reasonable steps, to ensure that the name and address is ascertained; or
   c. becomes aware of any other matter that might be of material assistance in finding the witness; or
   d. witness has not been traced by the name or at the address given.

Question 71

Procedure when alibi witnesses are interviewed.

Answer 71

1. advise the defence counsel of the proposed interview and give them a reasonable opportunity to be present.
2. if the Defendant is not represented, endeavor 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 statement 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 under s16(1)(o).

Question 72

Expert evidence
BS10

Answer 72

If the Defendant intends to call an expert witness during proceedings, 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 any such report is not available, a summary of the evidence to be given and the conclusions of any report to be provided.
3. This information must be disclosed at least 10 working days before the date fixed for the Defendants trial, or within any further time that the court may allow s23(1).

Question 73

R v Cox

Answer 73

consent must be full, free, information and voluntary given by a person in a position to form a rational judgement.

Question 74

The following are a set of guidelines to consent regarding consent.
EENNI

Answer 74

1. Everyone has a right to consent to a 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.
4. No one has a right to consent to bodily harm in such a manner as to amount to a breach of the peace, or in a prize fight or other exhibition calculated to collect together disorderly persons.
5. It is uncertain to what extent any person has a right to consent to their being put in danger of death or bodily harm by the act of another.