Homicide Law & defences 'B' Files part one

Question 1

What is the penalty for attempted murder?

Answer 1

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

Question 2

Define R v Tarei

Answer 2

Withdrawal of any form of life support system is not “treatment” under s166 Crimes Act 1961. To withdraw life support does not cause death but removes the possibility of extending the person’s life through artificial means.

Question 3

Outline section 181 of the Crimes Act 1961 (Concealing a dead body of a child)

Answer 3

Every one 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

Question 4

In which Court does a youth facing a charge of murder or manslaughter appear?

Answer 4

Young persons over 14 years of age areusually dealt with under the youth justice provisions of the CYPF Act.

• Charges filed in the district court
• Youth appears in the Youth Court
• Then trnasfered to High Court for trial.

Question 5

A Question of Law relating to whether the condition is a disease of the mind is answered by whom?

Answer 5

The Judge

Question 6

What the accused’s state of mind was at the time of the offence is a question decided by whom?

Answer 6

The Jury

Question 7

What was held in R v Kamipeli?

Answer 7

• 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

Question 8

What is the burden of proof for insanity?

Answer 8

The accused is not required to prove the defence of insanity beyond reasonable doubt, but to the satisfaction of the jury on the balance of probabilities.

Question 9

Section 153 of the Crimes Act 1961, what is the relevant age of the person who is employed?

Answer 9

Under the age of 16 years

Question 10

Where a charge of infanticide is laid, who decides on the Mothers state of mind?

Answer 10

The Jury

Question 11

Pursuant to section 22(3)(a) of the Criminal Disclosure Act 2008, the notice under subsection (1) must include:

Answer 11

(3) Without limiting subsection (1),

• the notice under subsection (1) must include the name and address of the witness or,
• if the name and address is not known to the defendant when the notice is given,
• any matter known by the defendant that might be of material assistance in finding that witness;

Question 12

Before a conviction can be obtained for manslaughter, where one of the sections referred to is section 150A (1) of the Crimes Act 1961, what must the prosecution prove?

Answer 12

A very high degree of negligence or gross negligence

Question 13

Proximity is a question of law decided by whom?

Answer 13

The Judge

Question 14

Written notice of an alibi is to be given by the defendant:

Answer 14

Within 10 working days after the defendant is given notice under section 20 of the Criminal Disclosure Act 2008.

Question 15

R v Cox

Answer 15

Consent must be full, voluntary, free and informed, freely and voluntarily given by a person in a position to form a rational judgement.

Question 16

As a general guideline, most offences within the Crimes Act 1961, will require an intent (Mens rea) of some kind. Outline a defence that would therefore be generally available:

Answer 16

The defence of intoxication will be available to the defence to establish that the defendant did not have the required intent to carry out the offence

Question 17

Provide an overview of the culpability of persons involved in suicide pacts

Answer 17

Any survivor of a suicide pact is guilty of being a party to a death (if death of another person within the pact ensues)

Question 18

Outline section 25 of the Crimes Act 1961, ignorance of the law:

Answer 18

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

Question 19

Section 150A:

Answer 19

Before a conviction can be obtained for manslaughter where one of the sections referred to in section 150A(1) the prosecution must prove:

a “very high degree” of negligence or “gross negligence”.

Question 20

Children aged 10-13 years of age charged with murder or manslaughter:

Answer 20

Sec 22 CA 1961

Must know that the act or ommission was wrong or that it was contrary to law.

10-13 Year olds charged with murder or manslaughter (a category 4 offence) are

• usually dealt with under the youth justice provisions of the CYPF Act.
• Charges of murder and manslaughter will be heard in the high court following the first appearance in the court in which the charging document was filed.

Question 21

Section 162 Crimes Act 1961:

Answer 21

(Applies to culpable homicide, murder, manslaughter and infanticide)

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
3) Where the cause of death is an omission to fulfil a legal duty, the period shall be reckoned inclusive of the day on which such omission ceased
4) 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 22

Outline “M’Naghten’s rules”

Answer 22

The M’Naghten’s rules (or test) is frequently used 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:

• The nature and quality of their actions, or
• That what they were doing was wrong.

Question 23

List four statutory legal duties in respect of the Crimes Act 1961

Answer 23

Duties imposed by statute are mainly common law duties that have been embodied in statute. The Crimes Act 1961 defines duties to:

• 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).

Question 24

List the difference between counselling or attempting to procure murder (s174) and conspiracy to Murder (s175)

Answer 24

• Counselling or attempting to procure murder requires that the offence is to be committed in New Zealand,
• whereas with conspiracy to murder, the murder can take place in New Zealand or elsewhere.
• Counselling or attempting to procure murder only applies if the murder is not in fact committed,
• whereas conspiracy to murder applies regardless of whether murder is committed or not.

Question 25

Section 159(1) &(2) of the Crimes Act 1961

Detail the provisions of section 159(1) & (2).

Answer 25

159(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.

159(2) the killing of such child is homicide if it dies in consequence of injuries received before, during, or after birth.

Question 26

Define Homicide, Section 158 of the Crimes Act 1961

Answer 26

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

Question 27

What was held in R v Mane?

Answer 27

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.

Question 28

State the ingredients of infanticide (s178 of the Crimes Act 1961).

Answer 28

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.

Question 29

What does R v Myatt state about an unlawful act in respect of section 160(2)(a) of the Crimes Act 1961?

Answer 29

Before a breach of any Act, regulation or bylaw would be an unlawful act under s 160 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

Question 30

What was held in R v Tomars

Answer 30

Formulates the issues in the following way:

1. Was the deceased threatened by, in fear of or deceived by the accused?
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 accused, in the sense that reasonable and responsible people in the accused’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?

Question 31

In general, no one is criminally responsible for the killing of another by any influence of the mind. What are the exceptions to this rule?

Answer 31

• Wilfully frightening a child under 16 years of age
• Wilfully frightening a sick person (Mentally or physically)

Section 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 the 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 32

What is meant by the term “justified?” Provide two examples:

Answer 32

Where the perpetrator is exempt from both criminal and civil liability.

Examples of such acts include:

1. Homicide committed in self-defence (s48)
2. 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 33

Why is attempted murder one of the most difficult offences in the Crimes Act 1961 to prove beyond reasonable doubt?

R v MURPHY

Answer 33

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:

Question 34

What are the ingredients to accessory after the fact to murder?

Answer 34

• Knowing any person to have been party to murder,
• receives, comforts, assists that person or tampers with or actively suppresses evidence against that person
• in order to enable him to escape after arrest or to avoid conviction.

Question 35

Proximity relating to attempts:

Answer 35

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

Question 36

Sec 150A applies: (standard of care)

Answer 36

To any case where unlawful act requires proof of negligence or gross negligence

Question 37

When does the Defendant have to provide the prosecutor with particulars of an alibi witness?

Answer 37

Defendant must provide prosecutor with particulars of any alibi witness within 10 working days after the defendant is given notice under section 20

Question 38

If 13yr old charged with murder, what is the court process?

Answer 38

• dealt with in High Court after committal process in Youth Court

Question 39

What does s181, C.A 1961 cover?

Answer 39

s181, C.A 1961 -

liable 2yrs 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.

Question 40

Insanity?

Answer 40

Insanity - is a question of law for the Judge to decide.

Classification by medical witnesses is not final and whether the particular condition is a disease of the mind is a question of law for the judge

Question 41

Generally, to prove an attempt the accused must have: (P26)

(a) done or omitted to do some act(s) that is/are proximately connected to the full offence….
(b) done or omitted to do some act(s) that display an intent to commit the full offence…
(c) done or omitted to do some act(s) that is/are sufficiently proximate (close) to the full offence.

Answer 41

(c) done or omitted to do some act(s) that is/are sufficiently proximate (close) to the full offence.

Question 42

When you investigate a killing that is a result of a sudden fight, you need to consider whether it was

• Self – defence
• The requisite mens rea for a murder charge

It is crucial for you to consider these issues if you are to decide the way in which the killing _________ be viewed. Which of the following statements are correct? (P30)

(a) If the homicide can be justified as having arisen out of self-defence (s48) the pr__________ is manslaughter.
(b) If the fact there was a fight negates that the accused had the required mens rea the charge of murder within section 167, the proper verdict is manslaughter.
(c) If the fact there was a fight negates that the accused had the required mens rea the charge of murder within section 167, the proper verdict is acquittal.

Answer 42

(b) If the fact there was a fight negates that the accused had the required mens rea the charge of murder within section 167, the proper verdict is manslaughter.

Question 43

As a general rule, all child offenders upon prosecution, will be referred to: (P60)

(a) the Care and Protection Coordinator until they reach the age of 14 years.
(b) the Children & Young Persons Service, Youth Division until they reach the age of 14 years
(c) the Youth Court Lawyer assigned by a Youth Court Judge, until the age of 17 years

Answer 43

A

Question 44

. If a child aged between 12 to 13 years has been charged with murder or manslaughter, what jurisdiction are they dealt under? (p95)

(a) Initially treated under the same provisions as an adult, then referred to the Youth Justice Court.
(b) The Youth Justice provisions of the Children, Young Persons and Families Act.
(c) Initially dealt with under Youth Justice provisions, then the matter is referred to the High Court for future proceedings.

Answer 44

C

Question 45

R v Codere provides a succinct definition of what constitutes the nature and quality of an act. It refers to the nature and quality of the act as meaning –

(a) the accused’s moral perception at the time the act was committed
(b) the physical character of the act
(c) the moral quality of the act

Answer 45

(b) the physical character of the act

Question 46

s25 of the Crimes Act 1961, ignorance of Law, states that.

If an offender is ignorant of the law it is not an excuse for any offences committed by him This section only applies to:

(a) All persons in New Zealand, whether visiting or permanent residents
(b) Applies only to permanent New Zealand residents
(c) All persons in New Zealand apart from temporary foreign visitors.

Answer 46

All persons in New Zealand, whether visiting or permanent residents

Question 47

s23(1), Criminal Disclosure Act 2008, relates to Expert Evidence. If the defendant intends to call an expert witness during proceedings, they must disclose to the prosecutor at least …………….. days before the date fixed for the defendant’s hearing or trial.

(a) 7 days
(b) 10 days
(c) 14 days

Answer 47

(b) 10 days